The judiciary acts as a critical check over the other two branches of government – legislative and executive. This, however, can only be secured by its independence. How can this be achieved in countries without strong and well-established democratic institutions? According to NES Professor Sultan Mehmood, the first step should be the establishment of a proper system of the selection and appointment of judges. In a column for GURU, he talks about the centuries-long dispute about different approaches to select judges. He then provides evidence that uses a unique natural experiment to bring to bear the answer to the question of judicial selection.
Montesquieu, in his famous book "The Spirit of Law" (1750), argued that judges should be independent from political interference by the government and that the selection process should ensure their impartiality. He advocated for a system where judges are selected through a merit-based process, with appointments being made by a body separate from the executive and legislative branches. On the other hand, the Federalists (1788), who wrote the Constitution of the United States, argued that judges should be appointed by the executive branch and approved by the legislative branch to ensure that they reflect the values of the majority. They believed that this would make judges more accountable to the people and prevent them from imposing their own views on the public.
These two views continue to be debated today, with some experts arguing that judges should be appointed based on merit and independence, while others believe that judges should get to their office through the process involving the executive and legislative branches to make them accountable to the people. So which approach was right and more favorable for the majority in the society, Montesquieu or the United States’s Founding Fathers?
An answer to this question can be found in the recent history of Pakistan, where a dramatic and unique institutional reform took place in 2010 that removed presidential discretion in the appointment of judges and introduced a judicial commission-based selection involving appointment by peer judges. This reform became a natural experiment and allowed us to bring to bear empirical evidence to this debate in support of Montesquieu’s position.
The 2010 reform in Pakistan confirmed that removing presidential discretion in the appointment of judges improved independence of the judicial system and the decision quality. The results of my study reveal that the presidential appointment of judges substantially affects the objectivity of judicial decisions: a 10% rise in judges selected by the judicial commission reduces government victories by about 2 pp, which is equivalent to a 4% reduction over the sample mean. This reduction in pro-government rulings implies a rise in decision quality. Additionally, the study shows that commission-appointed judges are about 35% less likely to have held political office in the lawyers’ bar associations than presidential appointees, indicating a political selection mechanism.
These findings are based on the analysis of cases on land expropriations by the government. The estimates suggest that the selection reform can prevent land expropriations worth 0.07 to 0.3% of GDP every year, which is more than twice the costs for religious leaders entering politics in Pakistan and expropriating state resources.
The research results support the importance and value of institutional design efforts in underdeveloped and vulnerable democracies and suggest that greater judicial independence is necessary for a strong judicial dispensation. A prominent lawyer, politician, legal scholar and historian of Pakistan, Syed Muhammad Zafar described the removal of presidential appointment of judges as follows:
“Our judiciary or any other judiciary in the world should be independent to make correct decisions. We had provisions for this in the 1973 Constitution. Judges’ tenure was secure. But this strong judicial dispensation was suffering from one key ailment or a flaw of the induction of the judges into the judiciary. The previous procedure was very arbitrary, it was not only arbitrary, but it was noninstitutional, discretionary and as a result bad judges, sometimes jiyalas (political ideologues), sometimes diwanas (crazies) got into the judiciary. So, we thought that the judicial appointments be through a process, we institutionalised it. We took away the power, the discretionary power, the arbitrary power.”
The evidence provided by my research suggests that Zafar's comments on the judicial reform in Pakistan may have been correct. Removing arbitrary power in judicial appointments may have increased judicial independence, which is vital for a robust judicial system. The findings underscore the potential to reform the judiciary system and support institutional design efforts in developing countries.