Failure of Judicial Independence is the Failure of Doctrine of Trichotomy in Pakistan

Abstract

In Parliamentary form of Government, the independence of judiciary is just a dream, as direct involvement of politicians and other established institutions can be observed in it. The concept of separation of powers given by Montesquieu though based upon logics but cannot be implemented without the principle of check and balance. The notion of term ‘justice’ generally springs the idea of court and notion of term ‘court’ brings about the concept of a ‘Judge’; a neutral, un-biased, upright, honest, a person of integrity presiding the court chair. Judge is a protector of public’s interest and a canon of hope in demise. Appointment of judges is a primary factor which effects the independence and performance of judicial bodies. This appointment should be free from every kind of influence and interference so that the administration of justice is not hindered. Any external influence in the appointment procedure automatically makes the appointed judge slightly biased, which may be due to various factors like fear, favor, and indebtedness. The appointment procedure which the law gave after 18th and 19th amendment may be such that it gives an influence-free effect but practical applicability differs from the provisions in law due to some prevalent informal practices. The recent 26th amendment has paved way to more interference from the executive branch in the appointment procedure, resulting in curtailed independence of judiciary. A scrutinized and transparent system of appointment based on merit and certain legislative reforms needs to be introduced and implemented in the society to foster justice system and ensure independence of judiciary.