THAT the honourable judges of the Supreme Court continue to bask in their post-2007 independence was evident at the International Judicial Conference held in Islamabad earlier this month. What was interesting to note, however, was that our judges increasingly appreciate that it is not sufficient to merely raise the slogan of independence at opportune moments but that this independence must also be exercised in their actions and decisions.

It was still more interesting to see that our judges seemed to realise that the exercise of their hard-won independence was not simply an end unto itself, but in fact the cornerstone for sustained rule of law in the country.

In order to understand why rule of law is important for a country and what an independent judiciary has to do with it, it is necessary to understand the meaning of the much-touted, but often elusive, concept of rule of law itself. Perhaps the most authoritative, succinct and pertinent definition in this regard, is the one put forward by Albert V. Dicey, the eminent 19th-century British jurist.

According to him, rule of law means that no man may be punished except for a violation of the law enacted in the ordinary legal manner and by the operation of the ordinary courts of the land; everyone is equal before the ordinary law and decisions of ordinary courts prescribe the limits of the domain of the law.

This definition of rule of law places the judiciary at a crucial juncture in society. The renowned American jurisprudence scholar, Brian Z. Tamanaha in his book, On the Rule of Law: History, Politics, Power explains the importance of this unique position occupied by the judiciary. According to him judiciary “is the point of most direct confrontation between the government, law and the individual and it can, therefore, serve as the best barrier against lawless governmental actions”.

It follows, therefore, that for the judiciary to discharge this role appropriately, it must be both competent and impartial. Anything short of this poses the great danger of rendering the judiciary susceptible to the temptation of itself subverting the rule of law.

One may well ask, how judges, the custodians of the law, may possibly undermine the rule of law? Tamanaha suggests in this regard that judges are, after all, human and like all other human beings, are vulnerable to the weaknesses of “bias, passion, prejudice, error, ignorance, cupidity or whim”.

He, therefore, argues that unless these human weaknesses of the judiciary are actively guarded against, they may serve merely to disguise under the cloak of legality the personal or political ambitions of a particular judge or the judiciary as a whole. It is needless to say that such an outcome merely replaces rule of law by rule of judges, which is as detrimental to society as the usurpation of power by the worst dictator.

The necessity of guarding the judiciary against its own excesses is particularly important in Pakistan’s current legal climate in which the judiciary is at great pains to reclaim the ground it had ceded to the executive over the years. Some might argue that the threat of invoking the jurisdiction of the Supreme Judicial Council (SJC) under Article 209 of the Constitution is sufficient to keep the judiciary in check. There are, however, two problems with such an argument.

First, that the SJC may only be invoked in extreme situations when the matter under consideration is beyond any hope of reversal. And second, as observed in the case of retired chief justice Iftikhar Chaudhry, that the danger remains of the SJC being invoked for political reasons.

If invoking the SJC is too extreme and fraught with difficulty, what else may be done to ensure that judges act objectively and fairly in all matters before them? A measure that is likely to significantly contribute in this regard is the voluntary adoption by the judiciary of appropriate codes of conduct and detailed guidelines as to how it may operate in given situations.

The superior judiciary adopted a version of such a code in September 2009. This short code, however, is drafted as a set of ideals which although noble-sounding do not provide a set of rules that the judiciary may easily follow. What is needed is a more holistic examination of the judicial function, the nature of cases that come before the judiciary and practical guidelines that the judiciary may put into practice in dealing with such cases.

Even this, however, is not enough because the most well-conceived code is not worth much if it is relegated to a dusty shelf. It is important to put such a code in action, to devise training modules around it, and to compel judges at all levels to participate in these modules.

The Federal Judicial Academy located in Islamabad, was established in 1997 through an act of parliament, precisely to fulfil such a purpose. On April 10, the president of Pakistan was pleased to promulgate an ordinance, which converts the FJA into a centre for judicial excellence and allows it to confer degrees, diplomas and certificates upon qualifying members of the judiciary.

The extent to which the judiciary, at all levels, takes advantage of the opportunities offered by this newly established centre of judicial excellence will, more than its loudest assertions in this regard, test its commitment not only to its own independence but also to sustained and continued rule of law in the country.

The writer is a barrister.

amber.darr@gmail.com