In the 18th century, American legal scholar and politician Alexander Hamilton had famously said that the judiciary is the “least dangerous” branch, having “no influence over either the sword or the purse,”. What he meant was that the judiciary, in those days, was least capable of defending itself against intrusion by other dominant organs of the state. Judicial independence, i.e., the ability of courts and judges to perform their duties free of influence or control by other actors, whether governmental or private, eventually became the hallmark and main life vein in all successful democracies. Judges were entrusted to settle disputes, including disputes between private and government actors, without interference.
Across the globe, justice systems are, hypothetically, left to the men and women of superior, discerning legal minds, who are capable of understanding state and society in greater depth and remain fully cognizant of their constitutional, legal and moral obligations. There is a widespread consensus that democracy cannot take roots without an independent judiciary, acting as a moral lodestar and presiding over conflicts involving other state institutions in electoral democracies. The “Basic Principles” of the independence of the judiciary was endorsed by the U.N. General Assembly in 1985, which were designed to assist member states in their “task of securing and promoting” the independence of the judiciary.
According several published journals, in Bangladesh, the vast majority of the population (roughly 90 per cent) reported having experienced corruption when dealing with the courts. Likewise, 85 per cent of Peruvians had little or no confidence in their judiciary. In countries such as Afghanistan, Bolivia, Morocco and Ukraine, the judiciary was seen as the most corrupt of all public institutions. In South Asia, Sri Lanka, India, Pakistan and Nepal fared marginally better than these countries in these surveyed popular perceptions.
Judicial corruption, thriving today in many quasi-democracies, offer a paradigmatic image of judges taking bribes and, more importantly, raises questions about of the impartiality of the justice system, with attendant actors such as the lawyers and administrative staff. Illegitimate influences on judges take a variety of forms bribes, blackmail, threats, violence or even murder. In such cases, the relations between the judiciary and the political arms of government are organized to engender and nourish a legal culture where judges defer to political diktats. Procedures for appointment of judges, judicial leadership, tenures for judges, and budgetary and financial regulations become structural factors in creating a malleable, pliant judiciary. Systemic judicial corruption stifles the broader accountability function that the judiciary is constitutionally entrusted with. It remains, at best hesitant, or at worst, incapable of safeguarding the state’s essential democratic functions – upholding citizens’ rights, securing the integrity of the political rules of the game, and sanctioning of other branches when they act in contravention of law.
In Pakistan’s tumultuous history, both military and civilian governments manoeuvred the judiciary to grant legitimacy for their unlawful actions. The judicial trajectory has, however, seen some marginal changes. In early 2009, the military regime in Pakistan succumbed to popular pressure and reinstated the deposed Chief Justice Iftikhar Chaudhry, along with 59 other judges. A moribund Pakistani judiciary has since exerted more independence and displayed some rejuvenations. The Panama Papers came under judicial scrutiny, making several ruling political elites accountable for money-laundering to offshore banks.With the revitalization of the judiciary the country has seen an upswing in freedom of expression. Several controversial government decisions have been annulled by the higher courts. Despite several past efforts, the Pakistani judiciary has, however, failed to bring the powerful military and its intelligence agencies under the scanner of law and accountability.
In India, with the BJP government in power, some judges were replaced and posted out in 2018 in a deliberate effort to quash murder charges filed in the appeals court against the BJP President, and now the Home Minister, Amit Shah. In an unprecedented judicial vigour, four judges of Supreme Court addressed a press conference to narrate that the Indian judiciary was in danger and there was a concerted effort to damage its independence. Earlier in 2014, Chief Justice Palanisam Sathasivam was appointed as the Governor of Kerala after his retirement. He was the lead of the bench that had first dismissed the murder case against the BJP supremo Amit Shah, who was involved in the fake encounter that killed a Muslim activist Sohrabuddin Sheikh. In 2020, a retired Chief Justice, Ranjan Gogoi, was rewarded with a Rajya Sabha seat in the upper house of parliament for his controversial verdicts on Ajodhya Mosque and Rafael arms purchase cases.
Indian Courts showed little or no urgency in responding to several petitions that challenged the curfews, lockdowns, and blocking mainstream media and social media networks in the State of Jammu and Kashmir. Despite its partisan and communal prejudice in several landmark cases, the Indian judiciary has largely remained above petty politics such as “defamation” cases or “digital act” cases which are used widely in neighbouring Bangladesh to rein in the media and punish opposition party activists. Indian media remains relatively freer among the South Asian countries, largely due to the judicial protection extended to journalists and media outlets.
From its independence in 1948, Sri Lanka has had a comparatively professional and independent judiciary. The constitution of 1972 and its amendments in 1978 curtailed judiciary’s protection from parliamentary and presidential powers. In 2013, the Sri Lankan government, in a politicized move, impeached the Chief Justice of the Supreme Court, but in 2015 the decision became void and was deemed unconstitutional. In 2018, the Supreme Court ruled that even a democratically elected President’s decision to dissolve the elected Parliament before the end of its term was unconstitutional. Lower courts in Sri Lanka, however, remain embroiled in communal and local politics and Tamil and other religious and ethnic minorities seeking justice for human rights abuses are often denied fair treatment in politicized lower courts.
In Nepal, the courts remained arbitrary, punitive, and oppressive under the authoritarian rule of the Rana family. With the dissolution of the monarchy, judiciary become relatively independent. Substantive legal and procedural reforms enabled a rejuvenated judiciary to act as an arbiter in the long-drawn constitutional crises that followed the collapse of the century-old monarchy. In a recent move, fearing a loss of majority in a coalition government, the Nepali Prime Minister dissolved the elected Parliament before its tenure and announced fresh elections in December 2020. This move was deemed unconstitutional by the bulk of the country’s political elites. The Supreme Court has now issued a show cause notice to the government demanding a justification for its unprecedented move to dissolve the Parliament. The Nepali judiciary is showing some encouraging signs of vigour as it strives to rise above partisan power politics in a young and growing democracy. Media in Nepal remains relatively free from political intimidation and harassment.
Bangladesh judiciary has had acid tests through landmark cases, such as the Mujib family murders and the 1971 war crimes trials. The war crimes trials, although long overdue, was politicized and, according to several experts, failed to meet international legal standards and procedures. The higher courts have, however, done a commendable job in bringing legal notice on some blatant irregularities and corruption. There are also dismal failures as courts entertained numerous politicized legal procedures against political leaders, and against several journalists, bureaucrats and judges, who raised dissenting voices in demanding greater transparency and fairplay. Pointing fingers at bureaucratic corruption often leads to cases involving contempt of court, a legal option available to self-extolling judges to put judicial misdemeanours under the carpet. In 2018, the forcible removal of a sitting Chief Justice with the help of a partisan military general and exiling him abroad was a real low point in the country’s history. A pliant judiciary chose quiescence over conscience on this flagrant violation of democratic norm and failed to rise up to its constitutionally mandated role.
Unfortunate as it is, bench-fixing and judgement-fixing are not uncommon in most judicial systems across South Asia. Lower courts, all over South Asia, continue to struggle, in varying degrees, with image perceptions as those remained embroiled in corruption and in partisan and power politics. In Afghanistan, most people prefer to go to the unofficial Taliban courts, where they exist, to avoid their corrupt lower courts. It may appear unfair to castigate the judiciary pejoratively, especially when the entire ruling and administrative machinery, including politicians, bureaucrats, doctors and law-enforcement agencies in these societies are steeped in corruption and malpractice. No wonder that in lower courts in some South Asian countries, the contesting lawyers often negotiate sentences with corrupt judges with offers of bribe or other official and unofficial incentives. Ordinary citizens, however, want to invest a greater trust in the integrity of the country’s judiciary, which is expected to act as a safeguard against intrusion by corroded and politicized institutions.
In the absence of the rule of law, basic tenets of democracy become hollow and superficial. Corruption and whimsical flouting of laws become epiphenomenal when the judiciary remains weak, inept and politicized. During World War II, under intense German bombing, when the British Prime Minister Winston Churchill was being briefed on the staggering casualties and the precipitous national economic collapse, he inquired if the country’s courts were still functioning well. When he learned that the judges were dispensing justice, Churchill replied, “Thank God. If the courts are working, nothing can go wrong.” For long, both elites and common masses in South Asia are asking the same probing question about their courts. Judicial leadership in these countries needs some soul-searching. Although not-too-easy a course, South Asian judiciaries must strive to grow out of the Hamiltonian skepticism and stir up a sunburst of Churchillian optimism to become the legal guardian of these growing and apparently fractious democracies.
Dr Kalam Shahed is an independent researcher in Canada. Earlier he taught at two universities there.