https://www.theallpapers.

com/papers/CSS/Overall%20Important%20Notes/Solved%20MCQs%20of
%20Political%20Science%202000-2011.pdf

https://www.academia.edu/34729492/Political_science_Solved_MCQS

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Role of Judiciary in the Evolvement of Democracy in Pakistan Iram Khalid♣ Abstract In the case of
Pakistan, the judiciary failed to check an extra constitutional regime change. This practice has
questioned the judicial independence as well as weakened the confidence of the institution. Technical
steps, legislative corrections and reforms cannot revise the role of judiciary. It needs credible
commitment by the government to respect the rule of law, a transparent system of judicial
appointments and to ensure that judicial decisions at all levels may be practiced. The present research
focuses on (i) the constitutional and political experiences of Pakistan’s struggle for democracy (ii) to link
the stability of the political system with the judiciary will further create certain debatable issues? The
research will conclude that a more comprehensive and coherent policy is needed to tackle this technical
as well as political issue. For the survival of democracy and stability of the political system it is important
that all the institutions must remain in their described limitations. This strategy will avoid any further
bumpy ride of Pakistan’s political journey. Key Words: Judicial activism, Democratic evolvement, Rule of
law, Role of military, legitimate rule, Democracy. Introduction: Democracy is conditional in its nature.
The principles of rule of law are the basic substance of democracy. Rule of law includes supremacy of
constitution, equality before the law and civil liberties. Democracy is of course the best form of
government. The superiority of democracy to the other systems of government lies in the principle of
separation of powers and the corresponding checks and balances that the three arms of government
exercise over one another (Parry & Mora, 1994; Hague & Harrop, 2001). Pakistan’s experience with
democracy is not a success story. Lack of performance by the elected institutions gave the opportunity
to the state institution to intervene in politics. The strained civil military relations have critical
implications for the civilian governments. The strength of the political leaders or the political
government is rooted in popular support which only comes through the performance. When this factor
is lacking then nonrepresentative institutions find the gape and took the control. In this scenario
judiciary failed to check an extra constitutional regime change in the case of Pakistan (Sayeed, 1983: 90-
96; Callard, 1968: 95-100).                                                             ♣ Author is Associate Professor of Political
Science Department, University of the Punjab, Lahore. Iram Khalid 126 In such a grim scenario role of
judiciary has also not been solid. As a matter of fact Pakistan is one of the glaring examples of non
consolidated democracies. The history of democracy in Pakistan has created the institutional inabilities,
so the state is still countering with the structural inabilities. It is only because of this that army got open
opportunities to usurp power and dismantle the basis of democracy. Army has always been in quest of
legitimacy and judiciary has fulfilled this requirement very often. It is observed that Judiciary has
momentous role in the course of democratization. This state institution can do commendable service in
building up a democratic society. Indeed it is predestined for the success of democracy. Thus, for this
purpose it should work as a free institution which has its own network as far as rules and regulations are
concerned and work without any pressures by government as well as from any other institution1 . In
case of our country this has never come true. In order to get a clear picture of the issue under discussion
it is essential to assess minutely the working of judiciary and to analyze few significant cases. Under both
civil and military rule judiciary kept on working under several notions and requirements. Pakistan’s
security profile has strong implications over the democratic and institutional development. In such a
scenario role of judiciary has never been the simple one. There have been several issues and impacts to
be catered and compromised. That is why when course of democracy is assessed all these factors are
kept in view that have shaped the mode of institutions and line of harmony standing in between the
institutions (Yusuf, 1998: 31-68; Mahmud, 1990: 17-22).

Impact of Judiciary on Democratic Evolvement

Civil government initiated the history of democracy in Pakistan. It was an elected assembly that
continued the democratic rule in Pakistan in 1947. The task before that constituent assembly was
immense. It was destined to set trends and democratic values. It was its task to shape the future
institutions. Unfortunately this significant task was undermined by several personal interests, lack of
consensus and some prevailing security issues and economic pressures. It is interesting enough to
observe that it during this era it was judiciary that gave protection to the undemocratic moves of the
governor general and then military rule. On the other hand the allegation is reversed. It observed on the
part of judiciary that it has to face pressures at the hands of executive and military rules. Justice Qazi
Muhammad Jamil is of the view; the judiciary cannot fight the dictators. We require strong Political
Institution which are lacking in the country. Geoffery K. Roberts opines that “judiciary is the branch of
government and administered by the executive branch, in cases where dispute arises as to meaning,
validity or supposed branch of such laws” (1971: 61). Judiciary is the guardian of the mass liberties and
rights. Its independence is one of the essentials of democracy. It because of such significance H. Rahman
asserts that. “Nothing touches the welfare and security of the citizen more than the judiciary. No mass,
therefore, can over-estimate the importance of the Role of Judiciary in the Evolvement of Democracy in
Pakistan 127 mechanism of justice” (Rahman, 1958: 189). Moreover The Universal declaration of human
rights Art.10 and the international covenant on civil and political rights Art.14 (1) proclaim that everyone
should be entitled to a fair and public hearing by a competent, independent and impartial tribunal
established by law. An independent judiciary is indispensable to the implementation of this right. Simply
stated, judicial independence is the ability of a judge to decide a matter from pressure or inducements.
Additionally, the institution of the judiciary as a whole must also be independent by being separate from
government and other concentrations of power. There are several hurdles in the way of an independent
judiciary. A very tactful control is required when there is question of the control of army by judicial
means. A mature political system must possess maturity. It is only because of this maturity there can
emerge the virtue of accommodation, acceptance, flexibility, transparency and accountability. In the
institution like army there is required sound process of socialization that can be helpful in making it
accept the supremacy of civilian institutions. Democracy in Pakistan has passed through several ebbs
and flows. There are numerous factors responsible for it. Currently it will be assessed that how military
and judiciary have halted the course of democracy. The constitutional history of Pakistan is not smooth
and sound. The first constitution was passed in 1956. Prior to this constitution the country was being
governed under the amended act of 1935. Governor General under this act had acquired autocratic
powers. It because of this fact that whenever there emerged any Constitutional crisis, the superior
judiciary has been asked to play its leading role for resolving it. The court’s judgment in such
Constitutional cases was with far reaching effects. It can be easily observed that the court’s decision
proved to be with long reaching effects on stability and instability for democracy and Constitutional
Assembles.

Independence

Independence from whom and what?

It is vitally important in a democracy that individual judges and the judiciary as a whole are impartial and
independent of all external pressures and of each other so that those who appear before them and the
wider public can have confidence that their cases will be decided fairly and in accordance with the law.
When carrying out their judicial function they must be free of any improper influence. Such influence
could come from any number of sources. It could arise from improper pressure by the executive or the
legislature, by individual litigants, particular pressure groups, the media, self-interest or other judges, in
particular more senior judges.

Why is independence important?

It is vital that each judge is able to decide cases solely on the evidence presented in court by the parties
and in accordance with the law. Only relevant facts and law should form the basis of a judge’s decision.
Only in this way can judges discharge their constitutional responsibility to provide fair and impartial
justice; to do justice as Lord Brougham, a 19th Century Lord Chancellor, put it ‘between man and man’
or as Lord Clarke, former Master of the Rolls put it more recently in 2005, ‘between citizen and citizen or
between citizen and the state’.

The responsibilities of judges in disputes between the citizen and the state have increased together with
the growth in governmental functions over the last century. The responsibility of the judiciary to protect
citizens against unlawful acts of government has thus increased, and with it the need for the judiciary to
be independent of government.

Independence and the appearance of independence

As well as in fact being independent in this way, it is of vital importance that judges are seen to be both
independent and impartial. Justice must not only be done – it must be seen to be done. It was for this
reason that the House of Lords in the Pinochet case in 1999 held that a decision it had given had to be
set aside and the appeal before it heard again by a panel of different Law Lords. It had come to light
after the original decision that one of the Law Lords might have given an appearance that he was not
independent and impartial because of a connection with a campaigning organisation which was involved
in the case. In those circumstances, and even though there was no suggestion that the Law Lord was not
in fact independent or impartial, the decision could not stand. Justice demanded that the appeal be
heard again before a panel of Law Lords who had and gave the appearance to reasonable well-informed
observers that they were independent and impartial.

The ways in which independence is protected and its limits

Whilst an independent and impartial judiciary is one of the cornerstones of a democracy, the practical
ways in which this is given effect are often treated with suspicion. For example, judges are given
immunity from prosecution for any acts they carry out in performance of their judicial function. They
also benefit from immunity from being sued for defamation for the things they say about parties or
witnesses in the course of hearing cases. These principles have led some people to suggest that Judges
are somehow ‘above the law’.

However, it is not right to say that Judges are above the law. Judges are subject to the law in the same
way as any other citizen. The Lord Chief Justice or Lord Chancellor may refer a judge to the Judicial
Complaints Investigations Office in order to establish whether it would be appropriate to remove them
from office in circumstances where they have been found to have committed a criminal offence.

Judicial independence does, however, mean that judges must be free to exercise their judicial powers
without interference from litigants, the State, the media or powerful individuals or entities, such as large
companies. This is an important principle because judges often decide matters between the citizen and
the state and between citizens and powerful entities. For example, it is clearly inappropriate for the
judge in charge of a criminal trial against an individual citizen to be influenced by the state. It would be
unacceptable for the judge to come under pressure to admit or not admit certain evidence, how to
direct the jury, or to pass a particular sentence. Decisions must be made on the basis of the facts of the
case and the law alone.

Judicial independence is important whether the judge is dealing with a civil or a criminal case.
Individuals involved in any kind of case before the courts need to be sure that the judge dealing with
their case cannot be influenced by an outside party or by the judge’s own personal interests, such as a
fear of being sued for defamation by litigants about whom the judge is required in the course of
proceedings or judgment to make adverse comment. This requirement that judges be free from any
improper influence also underpins the duty placed on them to declare personal interests in any case
before it starts, to ensure that there is neither any bias or partiality, or any appearance of such.
A practical example of the importance of judicial independence is where a high profile matter, which has
generated a great deal of media interest comes before the court. Such matters range from the criminal
trial of a person accused of a shocking murder, the divorce of celebrities, and challenges to the legality
of government policy, for example the availability of a new and expensive drug to NHS patients. In the
24 hour media age in which we live, it stands to reason that the judge hearing the case will often be
under intense scrutiny, with decisions open to intense debate. It is right that this is so. But it is important
that decisions in the courts are made in accordance with the law and are not influenced by such external
factors. It is also important however to observe one or two points which will have an impact on the
outcome of the trial and our understanding of it:

Why is Judicial Independence Important to You?

What does “judicial independence” mean?

Judges must be free, but obliged, to decide on their own.

Judges must be set apart from someone else’s influence or supervision.

Judges must be insulated against and independent from any and all sources of improper influence. This
includes:

 All forms of coercion, threat or harassment, direct or indirect;

 Whether from government, politicians, persons in authority, relatives, neighbours, interested parties,
fellow judges,

chief justices, judicial bodies or organizations.

Why do we expect our judges to be independent in Canada?

 Judges are individuals tasked with deciding matters in dispute. In cases that go to court there is often a
“winner”

and a “loser” such that in most cases half of the people and sometimes all may not be “pleased” with
the outcome.

 The Canadian system of law guarantees a “fair” trial, not a “favourable” outcome.

The fundamental concept of judicial independence exists for the benefit of all citizens, not judges.

Why does judicial independence protect the judges, the decision makers, from improper influence?

 To ensure that their decisions will be based upon the law as it applies to the evidence presented and
properly

admitted, in order to do justice between the parties.

This protection is enforced so that:

 Judges are insulated from any improper outside influence and who were bound only by their
conscience and the law.

Typically, the oath of office of Canadian judges includes “to do right according to law.”

In simple terms “judicial independence” is a matter of trust:

 Canadians need to know that legal disputes will be decided fairly, impartially, according to law, and in
open court for

the entire world to see.

Judicial independence is the shield that secures and protects those fundamental, constitutionally
enshrined values:

 That is why judicial independence is a hallmark of Canada’s constitutional democracy; and

 That is why Canada’s citizens must remain vigilant and loudly protest against any attempt, from any
quarter, to

impede, frustrate or diminish judicial independence.

Judicial independence is important to you because it guarantees that judges are free to decide honestly
and impartially, in

accordance with the law and evidence, without concern or fear of interference, control, or improper
influence from anyone.

3|Page

1. Why do we need judges?

2. How do judges decide disputes?

3. Who does judicial independence protect?

The judge has many roles. According to the ancient Greek philosopher Socrates: “Four things belong
to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially.”

Who does judicial independence protect? Judicial independence is often misunderstood as something
that is for the benefit of the judge. It is not. It is the public’s guarantee that a judge will be impartial.
Judicial independence protects individuals and the community. The protection of judicial independence
is enforced so that the parties will know they were dealt with fairly, that they received a fair trial, and a
fair hearing from a judge insulated from any improper outside influence and who was bound only by his
or her oath of office, which is to render justice according to law. To be efficient and meet its objective,
judicial independence must also protect judges. Judges have a responsibility to protect their
independence and impartiality. They do so not out of self-interest, but as an obligation to the public,
which has entrusted them with decision-making power and to whom they are ultimately accountable to
maintain the public’s confidence in the justice system. The protection of judicial independence is
intended to go much farther than simply any particular case or any particular persons who cannot
otherwise resolve their problems. The protection is for the entire community. It is a public trust. The
community must have confidence in its system of justice and be comfortable in the knowledge that
fairness, openness, and immunity from improper influence are characteristics of its judiciary. In this way,
the community will believe that all citizens can expect the same treatment according to the Rule of Law
[What is the “Rule of Law?”] and respect for the administration of justice will be maintained and
enhanced. These are some of the reasons why judges hear and decide cases in public. Representation of
the goddess Justicia with her eyes blindfolded, holding the scales, does not mean that justice is blind.
Rather, the symbolism is to remind us that the Rule of Law is intended to treat all people equally, no
matter what their circumstances. Also, judges often wear robes when performing certain adjudicative
functions. These gowns are symbolic of the court’s authority to act as guardians of the Constitution and
protectors of the Rule of Law. The placement of judges on a raised dais within the courtroom is also
designed to signify the authority and impartiality of the judiciary and to recognize the importance and
the solemnity of the proceedings. [What is the “Rule of Law?”]. In order for all members of the public to
be confident that the disputes entrusted to judges will be decided fairly and impartially, the principle of
judicial independence must be seen to, and in fact, shield judges from any degree of outside influence
from whatever source, especially the legislative and executive branches of government. The primary and
sworn duty of judges is to interpret and apply the law in the adjudication of disputes initiated by litigants
or the state. Judges are bound by the law. They do their best to keep their knowledge of the law and of
social issues current. All judges must be free to adjudicate in accordance with their oath of office
unfettered by coercion or influence from anyone, be it government, the public service, popular public
opinion, pressure groups, or other judges except, of course, to the extent that the opinions of other
judges may have been recorded and found to be useful as precedent. Canadians ought to know that
justice is not fickle: it does not depend on the judge’s whim or preference; it does not bend to the mob
or political winds or the agenda of special interest groups; it is not dispensed as a flavour of the month.
Rather, its only loyalty is to the Rule of Law [What is the “Rule of Law?”]. Judicial independence requires
that a judge adjudicate without fear or favour, even in the face of a contrary view widely held by others,
whether judicial colleagues, government, the public, the media, or interest groups. It is the community’s
responsibility to vigorously resist any steps or initiatives deemed to be an encroachment on judicial
independence that would harm rather than protect the public interest.

2. The Concept of Independence of Judiciary The general public reposing absolute faith in the judiciary,
seen in it, justiciably an institution that can rein in, if, not eliminate, the rapacity, favouritism and
corruption, especially at high places which have come to be associated with governance.3 The judiciary
is the symbol of protection of the rights and freedoms of the people. The judges of the judiciary are
required to perform their duties in a manner that enhances confidence of the peoples in the judiciary.4
It cannot be denied that independence of judiciary is one necessary condition for this. So it is necessary
to know what does independence of judiciary mean. The independence of judiciary means that the
judges shall enjoy liberty in arriving at their decisions and they should be free from interference of the
executive, meaning the bureaucracy and politicians or from the superiors and colleagues, and the judges
must not have cause to fear that they will be prejudiced by their decisions or that the public would
reasonably apprehend this to be the cause.5 Guy Green defines the expression judicial independence as:
“[T]he capacity of the courts to perform their constitutional function free from actual or apparent
interference by, and to the extent that it is constitutionally possible, free from actual or apparent
dependence upon, any persons or institutions, including, in particular, the executive arm of government,
over which they do not exercise direct control.” On October 1982, the International Bar Association
Biennial Conference held in New Delhi adopted the “International Bar Association Code of Minimum
Standards of Judicial Independence”. The Code deals with the independence of the judiciary. The
prescription of the Conference suggests that judges must have both “personal” and “substantive”
independence. The expression “personal independence” is defined in the following words: “Personal
independence means that the terms and conditions of judicial service are adequately secured, so as to
ensure that individual judges are not subject to political control.”6 The term “substantive
independence” is defined in the following words: “Substantive independence means that in discharge of
his judicial function, a judge is subject to nothing but the law and the commands of his conscience.”7
Montreal Declaration on the Independence of Justice, 1983 speaks of “collective” and “internal”
independence.

“Collective independence” means that the institutional, administrative and financial independence of
the judiciary as a whole vis-a-vis other branches of the government namely the executive and the
legislative.8 “Internal independence” means that the independence of a judge from his judicial superiors
and colleagues. That is the independence of a judge or a judicial officer from any kind of order,
indication or pressure from his judicial superiors and colleagues in deciding disputes.9 In this article we
shall use the meaning of independence of judiciary as used in the 1982 conference.

3. Importance of an Independent Judiciary Among the wings of the constitutional system, the judiciary
is considered the most prominent and outstanding wing in fulfilling the mandate of the constitution.10
The judiciary is the final destination where decisions over life, liberty, freedom, rights, duties and
property of citizens take place. But in absence of a free and independent judiciary, judges are not in a
position to adjudicate between the parties impartially.

Judicial independence is closely linked to democracy. Democracy cannot exist without justice and justice
cannot exist without an independent judiciary.11 In the words of Larkin, “an independent judiciary is the
essential – indeed indispensable – component of a free and democratic society.”12 In every democratic
society the judiciary is the final authority to settle disputes between individuals and between the state
and individual. James Bryce says: “There is no better test of the excellence of a government than the
efficiency of its judicial system, for nothing more nearly touches the welfare and security of the average
citizen than his sense that he can rely on the certain and prompt administration of justice …. if the Law
be dishonestly administered, the salt has lost its savour ; if it be weakly or fitfully enforced, the
guarantees or order fail, for it is more by the certainty than by the severity of punishment that offences
are repressed. If the lamp of justice goes out in darkness, how great is that darkness.”13 Henry Sidgwick
also speaks of the importance of the independent judiciary. He says: “in determining a nation’s rank in
political civilisation, no test is more decisive than the degree in which justice as defined by the law is
actually realised in its judicial administration; both as between one private citizen and another, and as
between private citizens and members of the Government.”14 An independent judiciary can protect and
uphold human rights. The rights guaranteed in the constitution can not be enforced in absence of an
independent judiciary. In the words of Madison: “Independent tribunals of justice will consider
themselves in a peculiar manner the guardians of those (constitutionally protected) rights. They will be
naturally led to resist every encroachment upon rights expressly stipulated in that Constitution by the
declaration of rights.”15 Sometimes the executive and legislative organs of the government usurp the
rights of citizens. To protect the citizens against such usurpations is the essence of the role of the

judiciary. Hence also judicial independence is sine qua non. In this context, Madison says: “Independent
tribunals of justice will consider themselves …. an impenetrable bulwark against every assumption of
power in the Legislature or Executive.”16 So the judiciary should be free from any direct or indirect
interference or influence of the executive or legislature as it is contrary to the concept of judicial
independence.17 The judiciary is considered as the last bulwark against arbitrariness. It takes a position
against unjust and immoral activities. The nation’s respect on the judiciary as final bastion against what
is unjust is not of recent origin; it is reflected throughout the recorded history of mankind.18 Therefore,
a judge shall not compromise his honesty and integrity at any cost. This is necessary for upholding the
image of the judiciary and public confidence in it. A judge is expected to act neutrally and deliver
judgment objectively, uninfluenced by any personal bias or prejudice. The fairness and impartiality of
judges plays a significant role in maintaining the credibility of the judiciary as an institution. Sources of
legitimacy are in the impersonal application by the judge of recognized objective principles which owe
their existence to a system as distinguished from subjective moods, predilections, emotions and
prejudices. Judges through their works must always uphold the credibility of the judiciary. Justice must
not only be done but it must also be seen to be done.19 In this context Justice Frankfurter says that the
public confidence is the ultimate reliance of the Court as an institution.20 In this context Justice
Frankfurter says that the public confidence is the ultimate reliance of the Court as an institution.21 In
the words of Badrul Haider Chowdhury: “And judiciary rests on public confidence and when such
confidence is shaken, for whatever reasons, the independence of judiciary becomes controversial.”22
Without their confidence, it is quite impossible for judicial branch to effectively function.23 In this
context, the US Supreme Court says: “The strength of the judiciary is in the command it has over the
hearts and minds of men. That respect and prestige are the product of innumerable judgments and
decrees, a mosaic built from the multitude of cases decided. Respect and prestige do not grow suddenly;
they are the products of time and experience. But they flourish when judges are independent and
courageous.”24 Thus the independence of the judiciary glorifies the office of a judge and inspires public
confidence.25 The Ontario White Paper on Court Administration also emphasized on the importance of
public confidence in judicial impartiality. It says: “The value of the courts as an important impartial
forum for the resolution of disputes depends upon the public perception of the independence of the
courts from the parties and particularly their independence from the government.”26 As regards the
importance of the confidence of the people in the administration of justice, James Bryce says that
nothing does more for the well-being of the people than a general confidence in the effective and
efficient administration of justice between the individual and the State as well as between man and
man.27 However, public confidence does not mean popularity because judges are sometimes required
by law to deliver unpopular judgment.28 Judicial independence enables judges to settle disputes
between parties without fear or favour even if the judgments are unpopular or difficult.29 The
independence of judges not only benefits the judges but also the members of the society. Brennan says:
“Judicial independence does not exist to serve the judiciary; nor to serve the interests of the other
branches of government. It exists to serve and protect not the governors but the governed.” 4.
Conditions for Independent Judiciary The necessary conditions for an independent judiciary are: 1.
Appointment; 2. Tenure 3. Remuneration and Privileges 4.1 Mode of Appointment The mode of
appointment of judges should be transparent. The person who possesses special degree learning,
impartiality, integrity, dignity, and independence of judgment should be given an opportunity to serve as
a judge. If the judges are devoid of wisdom, probity, and freedom of decision, the goals of the judiciary
cannot be attained. Whether a judge possesses these qualities depends in large measure on the
methods by which the judges are selected. The judges are currently chosen in different countries on the
following methods: (a) election by the legislature; (b) election by the people; (c) appointment by the
executive independently, or by the executive after consultation with the court of from a list of nominees
presented by the court or with the concurrence of an executive council or the upper chamber of the
legislature.30 The method of appointment of judges by the executive in consultation with the court is
considered the most democratic method among these methods. There is a controversy among scholars
whether a retired judge should be given opportunity to be appointed in honourable post. The
International Law Commission Report (ILCR) does not support the appointment of judges in
hounourable posts after their retirement or removal. It states that when there is any chance for such
appointment, impartial judgment may not be expected from them especially where the government
itself is a party to a suit. Justice V.R. Krishna Iyer in his book “Law and the People” says that he
independence of the judiciary plays a useful role in democratic societies in checking a class-biased
government. However, it is undermined by such devices as appointing judges after their retirement or
on the eve of retirement as Governors, Ambassadors, Vice-Chancellors, etc. These should be avoided, if,
we are purists as to the independence of judiciary.

Though, the practice of appointment of sitting judges on the verge of retirement and retired judges as
Inquiry Commissions by the executive has an advantage of utilising the talents of experienced hands, if
has one disadvantage as it is capable of being misused by making the appointment(s) based on political
patronage. Some judges on the verge of retirement may contemplate their chances of being appointed a
Commissioner after retirement. Such interest of the judges might affect their independence. It is a
possibility with potential for the destruction of the independence of the judiciary.32 The jobs offered to
judges on retirement by private enterprise or by the Government are highly-coveted and usually carry
immense power, prestige, perquisites and monetary gain. The nature of the job varies from legal advisor
to gubernatorial office. Taking service under a private employer or accepting any plum-assignment from
the Government after holding the exalted office of judge may be considered as derogatory to the
prestige of judges. If a retired judge secures a government job including constitutional office owing to
extraneous considerations, it would have a debilitating effect on the entire judiciary. The independence
of the judiciary will be in question, the impartiality of the courts will be in doubt. It will cause the erosion
of the strength and vitality of the judiciary. The respect and confidence that the people have in the
judiciary will diminish. Judiciary, as the bulwark of democracy, the last bastion, will slowly, but surely,
begin to crumble.

It may be said that if the judges are barred from taking up post-retirement jobs then considerable
experience, expertise and ability which otherwise could have been utilised for the benefit of the nation
would be lost. But preventing the judges from post-retirement appointments would do more good than
harm.34 4.2 Security of Tenure Security of tenure for judges is inter-linked with ensuring their
independence. As to the tenure of judges, different countries adopted either a good-behaviour tenure
or a definite period. Among these two types of tenure, the good-behaviour principle is practically
universal.35 The good-behaviour principle for the continuance in judicial office is considered one of the
most valuable of the modern improvements in the practice of government. Hamilton says: “In a
monarchy, it is an excellent barrier to the despotism of the prince ; in a republic, it is no less excellent
barrier to the encroachments and oppressions of the representative body. And it is best expedient
which can be devised in any government to secure a steady, upright, and impartial administration of the
laws.” Finally, as Hamilton showed, a good behavior tenure is necessary as it secures the experience and
knowledge of judicial precedent which constitutes one of the most important sources of strength in the
judicial office. In the course of a long judicial career marked by the laborious study and constant
application, the judge becomes familiar with the precedents which obviously cannot be gained by one
whose continuance in office is limited to a brief period.36 To secure independence of judiciary, the
option of removal of judge must exist in all countries. A judge must not be removed by the court of
which they are members, or by the apex court sitting as a disciplinary tribunal, and after a regular trial,
and for reasons explicitly mentioned in the laws.37 4.3 Adequate Remuneration and Other Privileges
The judges should be given a handsome remuneration. Salaries, housing facilities, allowances, privileges
and other conditions of service of a judge shall not be varied to his disadvantage during his tenure. 5
International Human Right Instruments and Independent Judiciary The Preamble of the Charter of the
United Nations reaffirms faith in the fundamental human rights, and in the dignity and worth of the
human person. The Preamble also says that men and women and nations large and small will enjoy
equal rights. The Charter also says: “To achieve international co-operation in solving international
problems of an economic, social, cultural or humanitarian character and in promoting and encouraging

respect for human rights and for fundamental freedoms for all without distinction as to race, sex,
language or religion.”38 It also says: “with a view to the creation of conditions of stability and well-being
which are necessary for peaceful and friendly relations among nations based on respect for the principle
of equal rights and self-determination of peoples, the United Nations shall promote : … universal respect
for, and observance of, human rights and fundamental freedoms for all without distinction as to race,
sex, language or religion.39 The Charter also states that the United Nations General Assembly shall
initiate studies and make recommendations with a view to assisting in the realization of human rights
and fundamental freedoms for all without distinction as to race, sex, language, or religion.40 The
commitment of the United Nations to promote and encourage respect for human rights and
fundamental freedoms for all contained in Articles 62 and 68. To achieve this purpose the Charter
requires the Member States of the United Nations to pledge themselves to take action jointly and
separately in cooperation with the United Nations.41 The Trusteeship System of the United Nations
aims to encourage respect for human rights and for fundamental freedoms for all without distinction as
to race, sex, language, or religion.

Conclusion

From the above discussion and observation it is clear that an independent judiciary plays important role
in promoting and protecting human rights of an individual. It takes a position between the subject and
any attempted infringements of his freedom by the executive, alert to see that any coercive action is
justified in law.53 It also checks the potential excesses of the legislative wings and effectively guarantees
the protection of human rights.

Conclusion

It is clear from the above case-law that judicial impartiality and independence has always been targeted
by coups to legitimize their interventions. However, judges today seem to value the principle of an
independent judiciary as a prerequisite for the continued existence of democracy, as is evident from the
many cases where courts have aimed to maintain the rule of law by giving fair and impartial decisions.
However, owing to a weak political and internal management structure, democracy in Pakistan remains
a mirage.

Example of Checks and Balances

The U.S. Constitution provides checks and balances for the U.S. government through the separation of
powers between its three branches: the legislative branch, the executive branch, and the judicial branch.
The Constitution gave specific abilities to each one of these three branches to ensure that no one
section of the government could obtain excessive unchecked power.

Checks and balances are practiced by the U.S. government in the following ways. First, the legislative
branch is the part of the government that makes laws, but the executive branch gives veto power to the
president, allowing the president to keep the legislative branch in check. In addition, the judicial branch,
the part of the government that enforces the laws put into effect by the legislative branch, can deem
certain laws unconstitutional making them void.

Moreover, while the president has veto power, the legislative branch can overturn a president's veto
with a two-thirds "supermajority" vote by both houses of Congress. This ensures that the president
cannot use his power for personal gain. The executive branch can also declare executive orders,
effectively proclaiming how certain laws should be enforced, but the judicial branch can deem these
orders to be unconstitutional.

However, executive orders are often declared for the benefit of the country and are rarely considered
unconstitutional. For example, President Obama, on Apr. 19, 2016, proclaimed an executive order that
blocked property and suspended entry into the U.S. of all people who were seen to contribute to the
current situation in Libya. In this scenario, the judicial branch stood firm with the president's order.
In another example of executive power, President Trump declared a national emergency on Feb. 15,
2019, in an effort to free up billions in funding for a proposed border wall, after efforts to get the
spending approved through Congress failed to gain approval.

Modern Examples of Checks and Balances

A quick scan of major new stories over the last couple decades will show you examples of checks and
balances in modern times.

 In 1996, the Defense of Marriage Act (DOMA) was signed into law by President Bill Clinton. It
declared that the federal definition of marriage was between a man and a woman. In 2015, the
Supreme Court ruled that same-sex marriage was legal in federal terms.

 In 1998, the House of Representatives brought impeachment charges against President Bill
Clinton, but the Senate acquitted him.

 In 2016, Congress overrode a veto by President Barack Obama over the issue of families of 9/11
victims being allowed to sue Saudi Arabia.