The judiciary is a branch of the government that deals
with legal disputes that occur. Judges interpret law, and sometimes the constitution as well if it is required.
The independence of a judiciary is imperative; it is
absolutely essential for the judges of a state to remain independent and avoid
biases.
The need for judicial independence in modern societies
has increased because it is important for the masses to rely on
the jury to make well-informed, unbiased decisions when they present an issue in
a court of law, otherwise there would be no confidence in their ability.
Pakistan’s struggle for an independent judiciary has
been a tough one. A very pivotal point in the political history of Pakistan was
when the 19th amendment of the constitution was challenged in the Supreme
Court. It was argued that the appointment of judges by the parliament would make
the process all the more political and reduce judicial independence. A number
of sub articles were then reversed.
However it is not only the issue of how judges are
appointed buy who is appointed as well. Griffith
(1991) argued that judicial impartiality is compromised when the appointed
individuals are not representative of the actual society.
Another issue of judicial impartiality is raised when
it is argued whether judges should be policy makers. If the judiciary of a
state interferes in making policy; there will be bias. But
sometimes, courts
inevitably make social policy when they decide cases and that the issue is to
determine the principles by which they play this role. So by this, it is
acceptable for judges to make policy. The judiciary must operate as part of the
government but with limits if it has to take part in making public policy. But who
decides? Who constraints the judiciary? Or do we make the rule of law final,
like Aristotle said, “Law should govern.”
2 comments:
In my opinion, I don't think it is only when he question of whether the judges should be policy makers arises, its when the issue of judicial impartiality is raised. I think, even when they have to implement those laws or policies judges can and often are subject to bias. When the president is selecting the justices on the basis of party affiliation and ideological disposition. This can subject the judges to external bias.
The argument whether they should be policy makers or not, is affected if the Judiciary is biased. If the Judges are biased then it will also affect the policies they make. If it is independent then the idea of them being policy makers i acceptable, but if they are not then it can be said that there is no difference between being governed by, for instance dictatorship or oligarchy or by rule of law.
Post a Comment