The following factors contribute in a large measure towards securing the independence of the judiciary:
Mode of Appointment of Judges
Experience of the past centuries has shown that the independence of the judges is greatly determined by the way they are appointed. Three different methods are used in different countries for the appointment of the judges. They are: (i) election by the people (ii) election by the legislature; and (iii) appointment by the executive.
Election by the people:
In some States, e.g., U.S.A., Switzerland, the judges are elected by the people. This method was first used in Revolutionary France owing to the strong influence of the theory of the separation of powers in that country. This method is, however, very defective. It corrupts the fountain of justice at its very source. The elected judges are necessarily under the influence of the voters and the parties which have elected .them. They cannot be impartial, honest, dignified and independent. Their judgments are prejudiced. An elected judge is a partisan and partisan judge cannot defend the rights and liberties of the individuals. “The desire to court popularity is a temptation few will be able to resist when their re-election is dependent on their popularity.” In short, the elected judges are more of politicians than judges.
Election by the Legislature: This method is no better than the method of popular election. For, says Laski, “If the choice is to be made on grounds of legal fitness, the average member of legislature has no special qualification forjudging, and he is therefore likely to be swayed by political considerations irrelevant to the problem.” The legislature tends to elect politicians to judicial offices rather than judges. A legislature is an arena of party politics and the judges are elected on party grounds. “Such party election encourages a type of judge who is far removed from the ideal of fairness and reasonableness which judicial decision demands.”
Appointment by the Executive:
Appointment or nomination of the judges by the executive, that is, by the minister in charge of the judicial department, is considered as the best available method and is applied in many countries. It is claimed that the executive is the most appropriate agency to judge the capacity and qualifications of the candidates to a judicial post. Experience has also shown that this method is greatly free from party bias in the choice of the judges. Yet it is not free from all defects. “Simple nomination” says Laski, “as in England by the Lord Chancellor, is not, I think, an adequate system.
It leaves the door too wide open for measurement of fitness in terms of political eminence rather than judicial quality.” However, the method of appointment can be improved by certain safeguards. Laski suggests that the appointment by the Minister of Justice should be made with the consent of a standing committee of the judges, which would represent all sides of their work. The judges know well the nature of their work and can judge better the qualities of the candidates, while they are not likely to be influenced by party considerations. This is the method used in the appointment of judges of the High and Supreme Courts in Pakistan. Another improvement in this method is selection by competitive examination. The minister appoints only such candidates as have been successful in it. The examination method is now applied in many countries, including Pakistan, for recruiting subordinate judges.