http://www.dailytimes.com.pk/default.asp?page=2011\09\26\story_26-9-2011_pg3_2
Monday, September 26, 2011
COMMENT: Judicial freedom but with responsibility —Ishaque Malik
Judicial independence is of supreme importance for an impartial and effective
judiciary but judicial accountability is also a complement to it. The cause of
justice can be served only through an ideal blend of the two
Judicial independence is required to be nurtured and preserved by any just and
fair society for at least four basic reasons: one, to fulfil the most basic
need of a society to have an impartial and independent body to protect
citizens’ legal rights and to resolve their disputes without being influenced
by any internal or external factors; two, the doctrine of separation of powers
requires that the judiciary should be independent of the two other pillars of
state, i.e. the executive and the legislature; three, the rule of law requires
judicature to be independent and four, for ensuring human rights and
fundamental freedoms to the members of society. Judges must, thus, be made free
and autonomous of all internal and external factors that may restrain their
ability to work without fear or favour. The concept of judicial freedom gives
birth to the ideas of judicial accountability since no independence could be
unqualified and unrestrained.
The most basic argument in favour of judicial accountability is to prevent the
judges and their institution from abuse of authority as judicial independence
is not an end in itself but only a means to a larger end and it is to be
ensured that the purpose of that larger end is properly served. One other logic
for judicial accountability is that the judicial system and judges are supposed
to function in accordance with all sorts of written and unwritten instructions,
rules, laws. Justice is administered within the ambit of laid down parameters
and principles. It, therefore, becomes imperative to see how devoutly adherence
to those instructions has been observed by the members of the judiciary.
Thirdly, the concept of accountability is a natural corollary to exercise of
power. The authority that exercises a power must be made accountable to some
other authority to assess how far the exercise of given powers succeeded in
obtaining the desired results for which it was intended. Fourthly, the role of
the judiciary during the past century has tremendously enlarged due to the
expansion of judicial outreach in welfare states, rising awareness and
consequent enforcement of social rights, increasing public interest litigation
and greater resort to judicial review. This enlargement of the judicial role
has enhanced the procedural and substantive responsibilities of the judges as
well as the need for judicial responsibility and accountability.
There are two main obstacles to judicial accountability: the concept of
judicial immunity and res judicata (a matter adjudged). The concept of judicial
immunity derives its strength from the old principle that “the king can do no
wrong”. Even the concept of sovereignty appeared irreconcilable to the idea of
state responsibility. There, however, prevailed another equally strong
tradition in some ancient states, like Athens, that held every public
functionary accountable for each of the acts performed in that capacity. There
is, however, an emerging trend to shun the concept of state immunity and resort
to a democratic concept of accountability.
The second obstacle to judicial accountability is the principle of res
judicata. The judicial decisions that attain finality, res judicata, become
laws unto themselves and an act that creates the law cannot be against the law.
So, any wrong decision that has attained finality could not serve as a basis
for the accountability of the judge or judges who pronounced such a decision.
Some countries have countered this obstacle by providing opportunity to the
aggrieved to challenge such decisions, though with some restrictions.
The biggest of all the questions is how to give effect to judicial
accountability in such a way that the independence of the judiciary is not
compromised. In fact, it is a very delicate aspect that needs very careful
handling as it runs the risks of spilling over to encroachment on judicial
freedom, which is entirely essential to achieve the ultimate objective of
serving the cause of the free and fair dispensation of justice to the
citizenry. The judges could neither be made subservient to the political
executive or legislature, nor could they be held above the law. There is a need
to strike a beneficial balance between the independence of the judiciary and
its accountability by subjecting judges to scrutiny to improve judicial conduct
and performance and to ensure judicial accountability without reducing their
insulation from intrinsic and extrinsic forces.
Legal and political science experts have devised different models and
typologies of judicial accountability, dividing it into legal, political and
social categories. All these models are useful for various societies and
situations and for scholastic studies. In general terms, however, it is
convenient to observe that the structural dimension of judicial independence
should be strengthened by ensuring that the appointment process of judges
should be multi-faceted, judicial immunity to the extent of judicial
pronouncements must be preserved, security of remuneration and tenure of office
should be ensured, removal of judges should be only on the grounds of
incapacity and misbehaviour and that too after due process and through a sound
legal forum and finally, political non-affiliation of the judges should also be
ensured through setting up proper institutional arrangements. The behavioural
side of judicial independence could be put to scrutiny by employing such
devices as to ensure checks on the conduct of judges without damaging the
essential spirit of their freedom and autonomy. Some of these steps could
include framing a reasonable code of conduct and discipline for the judges and
observing its compliance, maintaining record of competence of the judges,
limiting term of office instead of life-time appointments, public declaration
of assets possessed by the judges, watched by international organisations such
as the International Commission of Jurists, Transparency International, etc.
In a nutshell, judicial independence is of supreme importance for an impartial
and effective judiciary but judicial accountability is also a complement to it.
The cause of justice can be served only through an ideal blend of the two,
which may ensure freedom but with responsibility.
The writer is a student at Lee Kuan Yew School of Public Policy, National
University of Singapore. He can be reached at [email protected]
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