South Asian Studies, Vol 29, No 2 (2014)

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Paradoxes of Judicial Independence in Pakistan: Some Reflections from the U.S.

Dr. Naveed Ahmed, Syeda Mahpara Safder

Abstract


The Constitution and the political system of any country guarantees and makes favourable atmosphere to ensure independence of judiciary. However, sometimes due to certain political events or dictatorial regimes, the judiciary may face certain limitations which affect ultimately its independent and impartial character. This article focuses on the comparative analysis of judicial set up of the U.S.A. and Pakistan to jot down the weaknesses of Pakistan’s judiciary in the past and to look forward for judicial independence in the country. Previously, the role of judiciary, to uphold the Constitution and rule of law in Pakistan got compromised. At present, the judicial activism practiced by the judiciary leads to confrontation with other government bodies and raises serious questions regarding the mandate, limits and powers of the judiciary. The judicial activism reflected the failure of the other political organs of the country to defend the rule of law and to perform their duties within their specified spheres as mentioned in the Constitution of Pakistan 1973. However, the Constitution of the United States had established a separate and an independent judicial organ and guarantees life tenure, an impartial method of appointment, protected salary, and a clumsy impeachment mechanism. The judiciary had armed the courts with the weapon of judicial review at the early stage of its development. Therefore, the U.S. has developed an independent and impartial judicial set up under the auspices of its Constitution and may attract the attention of global world to introduce such system in their own countries. On the other hand, Pakistan has a problematic judicial history and striving hard for an independent judicial set up and in that situation the U.S. set up could be a good example as a starting point. Although, the role of judiciary in the past is questionable but there is a little consensus that some constitutional and political factors that have undermined judicial independence in Pakistan. However, the lawyer’s movement which was started at very small scale was supposed to be a good start and a way forward for future outcomes for sustainable judicial independence. 

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