THE judiciary, which is one of the three organs of a state, is a powerful weapon against injustice. The system of courts usually interprets and applies laws such as constitutional, statutory, regulatory and other laws and has some powers to change laws, especially through the process of a judicial review in the name of the state to uphold justice. This indicates what is justness or fairness for all, regardless of race, gender, caste, etc, in action/behaviour, treatment or systems. Without doubt, it is impossible to attain a just society for all without an effective judiciary.
The judiciary has a long history. The earliest form of the judiciary, more specially courts, was a tribal council in the European tribes, which lay between the present-day Austria and Italy, in 3350–3140 BCE and other places, including the African tribes in 2000 BCE. At that time, ruling family members decided controversies. Later, sovereigns with councils and retinues heard disputes and rendered justice in Sumerian court in 2000 BCE. But the formal administration of justice was established in societies including Egypt and Babylonia where spiritual rites and ceremonies were used to decide disputes. Subsequently, religious rituals were replaced by peer groups and the arguments of the parties were heard in Greece. Later, an impartial secular body was formed for hearing cases and rendering judgements but Rome formed the judicial system or courts, which are still evolving, of the modern world.
The judiciary has played important roles in upholding justice for all by resolving disputes, providing rewards and punishment, etc in democratic and non-democratic societies across the world. But, on the other side of the coin, the judiciary fails to function as expected on many grounds and secure justice in many countries with some variations. As a consequence, many individuals in different countries are deprived of justice. Even though they get justice, they do not get timely and deserved justice. Certainly, there are political, legal or procedural, resource-based and other shortcomings or challenges, which may be broadly explained from three perspectives that make it difficult to secure justice for all.
An insufficient role of the legislative, which is usually responsible for making laws, are of special concern. There are many shortcomings such as the lack of judicial independence, lack of sufficient laws for just rewards and punishment, enactment of laws not reflective of fairness and reflective of unjust interests, outdated laws or an inadequate update of laws, and so on, which reflect insufficient cooperation from and are mainly responsibilities of the legislative. The judiciary has usually nothing to do here but on account of lack of independence, the legislative can exert unreasoned power over it and makes it unable to act independently, which is important to the idea of the separation of powers and a requisite for justice and secure justice on many occasions.
Limitations within the judiciary clearly put significant barriers to justice. In addition to legal limitations mainly caused by the executive, there are many limitations within the judiciary such as corruption among judges (bribery, nepotism, influence on judges by other judges or staff for a favourable verdict, etc), lack of efficiency and professionalism among judges, lack of accountability and transparency in the judiciary, refusal of cooperation of the court’s administrative staff to provide information on the date and time of the hearings, lengthy non-legal process of trials, a backlog of cases, lack of adequate resources and training to judges, especially in specialised areas, low technological input, etc. Because of these, the judiciary fails to secure justice even if there is judicial independence.
Obviously, corruption, which is caused by many factors including political influence and lack of accountability and transparency, within the judiciary is a major concern. Of different forms, bribery is the most common form of corruptions, or misuse of power, which alone deprives many of justice in many countries. It is often criticised that judges and other court officials accept bribes to exercise their influence over a case in a way that unduly benefits bribers. In exchange for bribes, a judge may delay or accelerate cases, accept or deny appeals, or give rulings in a particular way favouring the bribers. Additionally, higher ranked judges sometimes exert undue influence on the verdicts of the judges in lower tiers.
A lack of desired roles of the executive is also another important hindrance to justice. Of course, the judiciary cannot ensure justice even if just laws exist and it gives just verdict based on just laws. Indeed, the executive, which usually executes and enforces laws, work with the judiciary on various grounds, especially accurate investigation and implementation of verdicts, providing judicial security, managing facilities, etc is needed for justice. But there are many concerns including a lack of expected cooperation from the executive in terms of providing accurate and timely intelligence support against cases and the execution of verdicts in many countries and exertion of undue influence over the judiciary. Consequently, justice is denied on many occasions even if the judiciary wants.
Of course, justice is varyingly denied and/or inadequately given in different countries around the world. For the attainment of justice specifically through the judiciary, thus, all concerns related to all branches need to be addressed. But the most important step is the enactment of just laws by the legislative branch. Indeed, no society/state is justly ordered in terms of just laws as expected. With some variations, different countries have unjust laws including black laws, which deprive them of justice and put barriers to justifiable progression of human beings. The enactment of just laws, or human development-friendly laws, must be prioritised as unjust laws cannot set just grounds for justice.
Usually, the judicial branch in authoritative and less developed countries lack independence and is less effective compared to democratic counties. But in addition to the problem of unjust laws, other concerns varyingly exist in different countries. Thus, some other steps such as the separation of the judiciary from other branches, de jure and/or de facto, at least to the extent needed for desired justice, ending undue influence of the executive, increased cooperation among these branches, ending corruption among judges and staff of courts through both administrative and legislative means, increasing number of judges, where required, improving efficiency of judges, addressing the backlog of cases for earlier and appropriate settlement and providing more space for justifiable criticism against the judiciary for securing justice will be effective depending on the actual situation.
The contempt of court, a charge which can be laid against someone for interrupting the process of justice in a court of law, or any action that interferes with a judge’s ability to administer justice or insults the dignity of the court, is to be especially noted. The rigid nature of the concept, especially in terms of someone’s act that insults the dignity of the court, gives limited/no room for justifiable public discussions on charges of bribery, misconduct against judges, etc which can lead to an effective and transparent judicial system and secure justice on many occasions. To make the judiciary more effective in securing justice, more space is needed for justifiable criticism or public discussions.
Amir Mohammad Sayem writes opinion pieces on social issues, politics, environmental issues, international relations and current affairs.
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