The means of realising the judicial role must be legitimate; the principle of the rule of law applies first and foremost to the judges themselves, who do not share the legislature’s freedom in freely creating new tools. The bricks with which we build our structures are limited. Our power to realise our role depends on our ability to design new structures with the same old bricks or to create new bricks. Sometimes there is great similarity between the new structures we build with the old we have known in the past. We tend to say that there is nothing new under the sun and that the legal pendulum swings to and fro before returning to its point of origin. But these analogies are inappropriate. The structures are always new. There is no return to the point of origin; the movement is always forward. Law is in constant motion; the question is merely one of rate of progress, its direction, and the forces propelling it. Moreover, sometimes we succeed in creating new “tools”. The genius of law is evident. But such inventions are few. Usually, we return to the old tools and use them to resolve new situations.
This theory determines the jurisprudential key concepts. It is a spring from which law draws its power, and it fashions the common legal experience. When the legal text especially a constitution or a statute includes such phrases as “void,” “authority,” “legal action,” “intention,” “limitation of action,” “good faith,” “reasonableness,” these words reflect a legal culture and legal tradition. They are not empty vessels into which the judge can simply pour any and all content.
Instead, they reflect fundamental legal approaches, derived from the legal tradition to which the legal system and culture belong. All of these give these expressions their conventional jurisprudential meaning in that system. Indeed, when a constitution or a statute employs these terms, it does so against the backdrop of the basic approaches of that society’s legal culture and operative legal theory. When judges fulfil their role in society, they act within the context of those self-same conceptions. Justice Frankfurter asserted: An enactment is an organism in its environment. And the environment is not merely the immediate political or social context in which it is to be placed, but the whole traditional system of law and law enforcement. An important tool that judges use to fulfil their role in a democracy is determining justiciability. That is, judges, identify those issues about which they ought not to make a decision, leaving that decision to other branches of the state. The more non-justiciability is expanded, the fewer opportunities judges have for bridging the gap between law and society and for protecting the constitution and democracy.
The judge should respect the special status of the legislature and recognise that there is a dialogue between him and the legislature. The judge is not accountable to the legislature or the nation in the way that a member of the legislature is. A judge is not a politician. A judge is accountable to the constitution and its values. That is the (personal and institutional) independence of the judge. Within the principle of separation of powers, the judge should make sure that each of the other branches operates within the boundaries of the law. Judicial review of the constitutionality of legislation and of administrative actions realises democracy. It protects the constitution and its values. Any system or action either by the executive or by any other state organ which interferes with the independence of individual judges as well as the independence of the judiciary as an institution is unconstitutional. Recently, there have been instances like the hunting of Houbara Bustard case, the Quetta blast commission report, and the judicial reference filed against Supreme Court Justice Qazi Faez Isa for allegedly concealing information about his properties in the UK—in which apex court noted in its detailed judgment reference as a complete disregard of the law. However, though the apex court found glaring lapses and procedural irregularities in the filing of the reference, it ruled that there was no ill intent behind the filing of the reference on the part of the president and prime minister. In summary, the Supreme Court found eleven grounds on which it found the reference against Justice Qazi Faez Isa to be legally “defective”. The Supreme Court allowed review petitions against the court’s earlier order that had directed an inquiry into the allegations made in a presidential reference against the top court judge in 2020. However, in short order, a 10-judge bench vindicated the judge of all allegations with a six-four majority verdict. The discipline and comity amongst the Judges of the Court and the independence of the institution besides, shaking the public confidence in the Courts and tarnishing its image as a neutral arbiter in disputes between citizens and citizens and between citizens and the Government.
There’s a need for an inter-institutional dialogue to ensure judicial independence and constitutional democracy.
Judicial independence is essential for fair and just dispute resolution in individual cases. It is also the lifeblood of constitutionalism in democratic societies.” Without judicial independence, there is no preservation of democracy and its values. The existence of judicial independence depends on the existence of legal arrangements that guarantee it, arrangements that are actualised in practice and are themselves guaranteed by public confidence in the judiciary.
Judicial independence is a concept that has an external as well as an internal component. Although most jurisprudence has been founded upon external aggression seeking to stifle judicial impartiality, little attention has been paid to the influence of internal reform on the independence of the institution. This is where the focus must now lie. In fact, it is about time that all realise that the judiciary of today faces a greater threat from lack of introspection as opposed to an external attack on its independence. If truth be told, the fight for an independent judiciary shall be fought and won within, that is, in the accountability of one’s own actions.