‘Internal’ independence

Published October 15, 2023
The writer is a lawyer
The writer is a lawyer

ON Oct 11, the Supreme Court by a 10-5 majority upheld the constitutionality of provisions related to bench formation and case allocation in the Supreme Court (Practice and Procedure) Act, 2023. Parliament’s enactment of a law distributing to a committee of judges what were earlier the chief justice of Pakistan’s (CJP) sole discretionary powers, and the Supreme Court upholding its constitutional validity, are both welcome and necessary first steps in recognising the ‘internal’ aspect of the independence of the judiciary.

A brief history of the evolution of the independence of the judiciary can help explain the meaning of ‘internal’ judicial independence and its significance.

In essence, judicial independence means judges should be free to perform their duties in accordance with the law without any improper influence. This is important as only an independent judiciary can safeguard the rule of law, access to justice, and more generally, the fundamental rights of the people.

In Pakistan, like in many other jurisdictions, independence of the judiciary has almost entirely been seen as the institutional and functional separation of the judiciary from other branches of the state in matters such as appointments, accountability, and court administration.

In recent years, we have seen how the CJP’s power to allocate cases has raised concerns.

However, as judiciaries in many parts of the world have become more institutionally independent with greater powers of self-governance — as has been happening in Pakistan as well — there are growing concerns about the ‘internal’ dimension of judicial independence, which seeks to protect individual judges from interference or improper influences from within the judiciary.

The European Court of Human Rights, for example, in a number of judgements since 2009, has recognised “judicial independence demands that individual judges be free not only from undue influences outside the judiciary, but also from within”. It has held internal judicial independence requires that judges are “free from directives or pressures from the fellow judges or those who have administrative responsibilities in the court such as the president of the court or the president of a division in the court”.

One such example of ‘internal’ independence is ensuring court presidents or chief justices do not have arbitrary, unstructured powers to constitute benches and assign cases to individual judges. The UN Special Rapporteur on the Independence of Judges and Lawyers has said case allocation “at the discretion of the court chairperson may lead to a system where more sensitive cases are allocated to specific judges to the exclusion of others” and has argued for a mechanism that “protects judges from interference from within the judiciary”, including through legislation.

A number of constitutions, particularly in Europe, recognise the right to a ‘lawful’ or ‘natural’ judge. This right is now also seen as a safeguard against deprivation of the ‘lawful judge’ from within the court administration. In countries such as Germany, therefore, a ‘management group’ consisting of the court president and a number of judges decides how cases are allocated on the basis of predetermined ‘management plans’.

These examples show allocation of cases to individual judges or benches is not solely a matter of court administration, but has serious implications for ‘internal’ judicial independence, and consequently, for the rule of law, access to justice, and the right to a fair trial. Parliaments, therefore, are not just competent to provide a remedy in such cases, as they have done in a number of jurisdictions, but have a duty to do so.

This is true for Pakistan as well. In recent years, we have seen how the CJP’s arbitrary power to allocate cases has raised concerns of illegitimate influences on the functioning of the judiciary and case outcomes. Chief justices have grossly misused their powers by assigning politically significant cases to a handful of judges to the exclusion of others, based on no clear criteria, creating a hierarchy in Supreme Court judges. Cases have been taken from particular judges and allocated to others in the middle of the proceedings. And while certain petitions have been heard promptly, others have remained pending for years.

Yet, surprisingly, a number of judges, lawyers, and other commentators still consider bench formation and case allocation an “administrative matter”, and find legislation distributing these powers to a committee of the CJP and two senior-most judges outside parliament’s competence and an assault on the independence of the judiciary.

How the committee constituted under the law works in practice would demonstrate how far issues related to bench formation and case allocation have been addressed, but at least this much is clear that the CJP giving up his power as the ‘master of the roster’ and sharing it with other Supreme Court judges strengthens ‘internal’ judicial independence.

It is also heartening to see that even outside this judgement, a number of Supreme Court judges have raised the ‘internal’ aspect of the judiciary’s independence in their dissenting and separate opinions, suggesting that judges are now less concerned about maintaining the illusion of all being well in the court and are more willing to address issues afflicting the Supreme Court’s functioning for many years.

That said, it remains to be seen whether there has indeed been a paradigm shift in how the Supreme Court (and perhaps the high courts too) understand the independence of the judiciary, as many other issues continue to hamper ‘internal’ independence and need reform. These include opacity in the judicial appointments process and the CJP’s power of ‘initiation’, which makes him the sole authority that can recommend names of candidates that the Judicial Commission can consider for appointment to the superior courts. Similarly, urgent reform of the judicial accountability system is also required, including through legislative as well as procedural changes to the Supreme Judicial Council, to safeguard both ‘internal’ judicial independence and the independence of individual judges.

Ideally, any judicial and legislative attempts to address these issues — as well as the public response to such efforts — should be based on a holistic, contemporary understanding of judicial independence that also includes its ‘internal’ aspect, instead of an outdated, knee-jerk view that is enamoured by a CJP as the paterfamilias and equates independence with complete insulation of the judiciary.

The writer is a lawyer.
reema.omer@icj.org
X (formerly) Twitter: @reema_omer

Published in Dawn, October 15th, 2023

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