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Über dieses Buch

This book examines the legal principle of judicial independence in comparative perspective with the goal of advancing a better understanding of the idea of an independent judiciary more generally. From an initial survey of judicial systems in different countries, it is clear that the understanding and practice of judicial independence take a variety of forms. Scholarly literature likewise provides a range of views on what judicial independence means, with scholars often advocating a preferred conception of a model court for achieving ‘true judicial independence’ as part of a rule of law system. This book seeks to reorient the prevailing approach to the study of judicial independence by better understanding how judicial independence operates within domestic legal systems in its institutional and legal dimensions. It asks how and why different conceptualisations of judicial independence emerge over time by comparing detailed case studies of courts in two legally pluralistic states, which share inheritances of British rule and the common law. By tracing the development of judicial independence in the legal systems of Malaysia and Pakistan from the time of independence to the present, the book offers an insightful comparison of how judicial independence took shape and developed in these countries over time. From this comparison, it suggests a number of contextual factors that can be seen to play a role in the evolution of judicial independence. The study draws upon the significant divergence observed in the case studies to propose a refined understanding of the idea of an independent judiciary, termed the ‘pragmatic and context-sensitive theory’, which may be seen in contradistinction to a universal approach. While judicial independence responds to the core need of judges to be perceived as an impartial third party by constructing formal and informal constraints on the judge and relationships between judges and others, its meaning in a legal system is inevitably shaped by the judicial role along with other features at the domestic level. The book concludes that the adaptive and pragmatic qualities of judicial independence supply it with relevance and legitimacy within a domestic legal system.

Inhaltsverzeichnis

Frontmatter

Chapter 1. The Problem of Judicial Independence

Abstract
Few legal ideas have received as much attention in scholarship and invocations in judicial speeches as that of an independent judiciary. Chief Justice Brian Dickson of the Supreme Court of Canada once wrote that judicial independence is “the lifeblood of constitutionalism”. Associate United States Supreme Court Justice Sandra Day O’Connor admonished Americans to ‘recommit’ themselves to maintaining judicial independence after arguing that “all of society has a keen interest in countering threats to judicial independence”. Despite the near universal acclaim, however, the contours of judicial independence remain unclear and its meaning and practice in different legal systems are often poorly understood. In writing about judicial independence, Christopher M. Larkins observes:
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Chapter 2. Judicial Independence in Malaysia

Abstract
This chapter examines the legal principle of judicial independence in Malaysia in two stages. First, a brief analysis of select secondary sources, including academic commentary and the views of participants in Malaysia’s legal system, distills themes that are seen by observers as important to the meaning and practice of judicial independence in Malaysia. From this starting point, the study identifies and examines a number of primary legal sources related to the themes identified, including constitutional arrangements, legislation, and reported judicial decisions. These primary sources are used to construct a narrative of judicial independence in Malaysia from the time of its independence in 1957 to the first half of 2016. While the study draws on illustrative scholarship and commentary to identify themes, its focus is on the identification and analysis of primary legal sources that reflect institutional arrangements and shed light on the interactions between courts and other branches of government. The second stage of this study considers implications and lessons learned from the experience of judicial independence in Malaysia.
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Chapter 3. Judicial Independence in Pakistan

Abstract
This chapter examines the legal principle of judicial independence in Pakistan in two stages. First, a brief analysis of select secondary sources, including academic commentary and the views of participants in Pakistan’s legal system, distills themes that are seen by observers as important to the meaning and practice of judicial independence in Pakistan. From this starting point, the study identifies and examines a number of primary legal sources related to the themes identified, including constitutional arrangements, legislation, and reported judicial decisions. These primary sources are used to construct a narrative of judicial independence in Pakistan from the time of its independence in 1947 to the first half of 2016. While the study draws on illustrative scholarship and commentary to identify themes, its focus is on the identification and analysis of primary legal sources that reflect institutional arrangements and shed light on the interactions between courts and other branches of government. The second stage of this study considers implications and lessons learned from the experience of judicial independence in Pakistan.
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Chapter 4. Conclusion

Abstract
This chapter compares the case studies of judicial independence in Malaysia and Pakistan. As observed by Professor Anja Seibert-Fohr, the comparison of judicial independence across legal systems stands to shed light on the legal principle more generally. This chapter therefore aspires to offer insight into the idea of an independent judiciary and how it is likely to take shape and work in different legal systems. The second part analyses and compares judicial independence in Malaysia and Pakistan in contrast with England by looking at the evolution of judicial independence and the contextual factors that can be seen to have influenced this process. The third and fourth parts evaluate the competing universal and pragmatic and context-sensitive theories of judicial independence by comparing the results observed to the results expected under each of the two theories. The fifth part suggests some broader implications and lessons learned in terms of future judicial independence studies and judicial reform projects.
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