Judicial independence
Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important for the idea of separation of powers.
Different countries deal with the idea of judicial independence through different means of judicial selection, or choosing judges. One way to promote judicial independence is by granting life tenure or long tenure for judges, which ideally frees them to decide cases and make rulings according to the rule of law and judicial discretion, even if those decisions are politically unpopular or opposed by powerful interests. This concept can be traced back to 18th-century England.
In some countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review. This power can be used, for example, by mandating certain action when the judiciary perceives that a branch of government is refusing to perform a constitutional duty or by declaring laws passed by the legislature unconstitutional.
Theory of evolution
Importance
Judicial independence serves as a safeguard for the rights and privileges provided by a limited constitution and prevents executive and legislative encroachment upon those rights.[1] It serves as a foundation for the rule of law and democracy. The rule of law means that all authority and power must come from an ultimate source of law. Under an independent judicial system, the courts and its officers are free from inappropriate intervention in the judiciary's affairs. With this independence, the judiciary can safeguard people's rights and freedoms which ensure equal protection for all.[2]
The effectiveness of the law and the respect that people have for the law and the government which enacts it is dependent upon the judiciary's independence to mete out fair decisions. Furthermore, it is a pillar of economic growth as multinational businesses and investors have confidence to invest in the economy of a nation who has a strong and stable judiciary that is independent of interference.[3] The judiciary's role in deciding the validity of presidential and parliamentary elections also necessitates independence of the judiciary.[4]
Disadvantages
The disadvantages of having a judiciary that is seemingly too independent include possible abuse of power by judges. Self-interest, ideological dedication and even corruption may influence the decisions of judges without any checks and balances in place to prevent this abuse of power if the judiciary is completely independent.[5] The relationship between the judiciary and the executive is a complex series of dependencies and inter-dependencies which counter-check each other and must be carefully balanced. One can be too independent of the other. Furthermore, judicial support of the executive is not as negative as it seems as the executive is the branch of government with the greatest claim to democratic legitimacy. Roger K. Warren writes that if the judiciary and executive are constantly feuding, no government can function well.[6]
An extremely independent judiciary would also lack judicial accountability, which is the duty of a public decision-maker to explain and justify a decision and to make amendments where a decision causes injustice or problems. Judges are not required to give an entire account of their rationale behind decisions, and are shielded against public scrutiny and protected from legal repercussions. However judicial accountability can reinforce judicial independence as it could show that judges have proper reasons and rationales for arriving at a particular decision. Warren opines that while judges are not democratically accountable to the people, the key is for judges to achieve equilibrium between accountability and independence to ensure that justice is upheld.[7]
Economic basis
Constitutional economics studies issues such as the proper distribution of national wealth including government spending on the judiciary. In transitional and developing countries, spending on the judiciary may be controlled by the executive. This undermines the principle of judicial independence because it creates a financial dependence of the judiciary on the executive. It is important to distinguish between two methods of corruption of the judiciary: the state (through budget planning and privileges) being the most dangerous, and private. State corruption of the judiciary can impede the ability of businesses to optimally facilitate the growth and development of a market economy.[8]
In some countries, the constitution also prohibits the legislative branch from reducing salaries of sitting judges.
Development of the concept
National and international developments
The development of judicial independence has been argued to involve a cycle of national law having an impact on international law, and international law subsequently impacting national law.[9] This is said to occur in three phases: the first phase is characterized by the domestic development of the concept of judicial independence, the second by the spread of these concepts internationally and their implementation in international law, and the third by the implementation in national law of these newly formulated international principles of judicial independence.[9]
A notable example illustrating this cycle is the United Kingdom. The first phase occurred in England with the original conception of judicial independence in the
In recent decades the third phase of judicial independence has been evident in the UK,[14] as it has been significantly influenced by judicial independence principles developed by international human rights constitutional documents. The European Court of Human Rights (ECtHR) has had a significant impact on the conceptual analysis of judicial independence in England and Scotland. This process began in the 1990s with the ECtHR hearing UK cases and, more significantly, in the application of the European Convention on Human Rights in British law through the Human Rights Act 1998, which came into force in the UK in 2000.[15]
Where British national law had previously impacted the international development of judicial independence, the British
Thus, the United Kingdom, where judicial independence began over three hundred years ago, illustrates the interaction over time of national and international law and jurisprudence in the area of judicial independence. In this process, concepts and ideas have become enriched as they have been implemented in successive judicial and political systems, as each system has enhanced and deepened the concepts and ideas it actualized. In addition to the UK, similar developments of conceptual cross-fertilization can be seen internationally, for example in European Union law,[20] in civil law countries such as Austria, and in other common law jurisdictions including Canada.[21]
International standards
The International Association of Judicial Independence and World Peace produced the Mt. Scopus International Standards of Judicial Independence between 2007 and 2012. These built on the same association's New Delhi Minimum Standards on Judicial independence adopted in 1982 and their Montréal Universal Declaration on the Independence of Justice in 1983. Other influences they cite for the standards include the UN Basic Principles of Judicial Independence from 1985, the Burgh House Principles of Judicial Independence in International Law (for the international judiciary), Tokyo Law Asia Principles, Council of Europe Statements on judicial independence (particularly the Recommendation of the Committee of Ministers to Member States on the independence, efficiency and role of judges), the Bangalore Principles of Judicial Conduct 2002, and the American Bar Association's revision of its ethical standards for judges.[22]
The justice system
In recent years, the principle of judicial independence has been described as one of the core values of the justice system.[23]
Judicial independence metrics
Judicial independence metrics allow a quantitative analysis of judicial independence for individual countries. One judicial independence metric is the high court independence index in the V-Dem Dataset,[24] where higher values indicate higher independence, shown below for individual countries.
Judicial independence by country
Australia
There was a struggle to establish judicial independence in
Canada
The year 1997 saw a major shift towards judicial independence, as the
Hong Kong
In
Singapore
Judicial independence in Singapore is protected by the
The Chief Justice and other Supreme Court judges are appointed by the President of Singapore acting on the advice of the Cabinet of Singapore. The President must consult the Chief Justice when appointing other judges, and may exercise personal discretion to refuse to make an appointment if he does not concur with the Cabinet's advice. Supreme Court justices enjoy security of tenure up to the age of 65 years, after which they cease to hold office. However, the Constitution permits such judges to be re-appointed on a term basis.
United Kingdom
England and Wales
History
During the
Contemporary usage
Under the uncodified
Furthermore, the independence of the judiciary is guaranteed by the Constitutional Reform Act 2005.[36] In order to try to promote the independence of the judiciary, the selection process is designed to minimize political interference. The process focuses on senior members of the judiciary rather than on politicians. Part 2 of the Tribunals, Courts and Enforcement Act 2007 aims to increase diversity among the judiciary.[citation needed]
The pay of judges is determined by an independent pay review body. It makes recommendations to the government after taking evidence from a variety of sources. The government accepts these recommendations and will traditionally implement them fully. As long as judges hold their positions in "good order", they remain in post until they wish to retire or until they reach the mandatory retirement age of 70.[citation needed]
Until 1 January 2010, the legal profession was self-regulating; with responsibility for implementing and enforcing its own professional standards and disciplining its own members. The bodies which performed this function were the
United States
Federal courts
The Constitution provides that federal judges, including judges of the Supreme Court of the United States, are appointed by the President "by and with the advice and consent of the Senate". Once appointed, federal judges:
...both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
Federal judges vacate office only upon death, resignation, or impeachment and removal from office by Congress; only 13 federal judges have ever been impeached. The phrase "during good behavior" predates the Declaration of Independence. John Adams equated it with quamdiu se bene gesserint in a letter to the Boston Gazette published on 11 January 1773,[38] a phrase that first appeared in section 3 of the Act of Settlement 1701 in England.
The President is free to appoint any person to the federal bench, yet typically he consults with the American Bar Association, whose Standing Committee on the Federal Judiciary rates each nominee "Well Qualified", "Qualified" or "Not Qualified".
State courts
State courts deal with independence of the judiciary in many ways, and several forms of judicial selection are used for both trial courts and appellate courts (including state supreme courts), varying between states and sometimes within states. In some states, judges are elected (sometime on a partisan ballot, other times on a nonpartisan one), while in others they are appointed by the governor or state legislature.
The 2000 case of
See also
- Judicial reform
- Judiciary in Russia
- Political corruption § Judiciary corruption
- Rule According to Higher Law
- Rule of law
- Separation of powers
References
- ISBN 978-0-819-53016-5,
The complete independence of the courts of justice is particularly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority ... Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
. - ISBN 978-0-415-32613-1,
As the partisan administration of law erodes rule of law, a central institutional requirement is an independent, accessible judiciary.
. - ^ Roger K. Warren (January 2003), The Importance of Judicial Independence and Accountability, National Center for State Courts, p. 1, archived from the original (PDF) on 11 November 2018
- ^ Constitution, Art. 93A, and the Presidential Elections Act (Cap. 204A, 2007 Rev. Ed.), ss. 71–80; and the Parliamentary Elections Act (Cap. 218, 2007 Rev. Ed.), ss. 92–101.
- ^ Warren (2003), pp. 2–3.
- ^ Warren (2003), pp. 3–5.
- ^ Warren (2003), pp. 4–5.
- ^ Peter Barenboim, Defining the rules, The European Lawyer, Issue 90, October 2009
- ^ a b S Shetreet, ‘The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges’ (2009) 10 Chicago Journal of International Law 275-332
- ^ See generally Shimon Shetreet book, Judges on Trial.
- The Spirit of the Laws(Hafner 1949) (Thomas Nugent, trans).
- ^ Article III of the US Constitution provides that “the judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation which shall not be diminished during their continuance in office.”
- ^ Shetreet, Judicial Independence. See also Peter H. Russell, The Judiciary in Canada: The Third Branch of Government (McGraw-Hill Ryerson 1987); John Bell, Judicial Cultures and Judicial Independence, 4 Cambridge YB Eur Legal Studies 47 (2001).
- ^ UK Human Rights Act - 1998
- ^ Human Rights Act (1998), ch 42 (UK), available online at <"Human Rights Act 1998 (C. 42)". Archived from the original on 2010-09-01. Retrieved 2013-01-02.> (visited Mar 27, 2009).
- ^ Constitutional Reform Act (2005), ch 4 (UK). For a detailed analysis of the history of this act, see Lord Windlesham, The Constitutional Reform Act 2005: The Politics of Constitutional Reform, 2006 Pub L 35; Lord Windlesham, The Constitutional Reform Act 2005: Ministers, Judges and Constitutional Change, 2005 Pub L 806. For accounts of the main players, see Lord Woolf, The Pursuit of Justice 161–74 (Oxford 2008); Lord Phillips, Constitutional Reform: One Year On, The Judicial Studies Board Annual Lecture (Mar 22, 2007); Lord Woolf, The Rule of Law and a Change in the Constitution, 2004 Camb L J 317; Tom Bingham, The Business of Judging: Selected Essays and Speeches 55–68 (Oxford 2000). All three authors served as lord chief justice in these formative years. Lord Woolf was active in the shaping of the legislation and Lord Phillips succeeded him
- ^ a b Anthony Seldon, Ed., Blair's Britain, 1997-2007 (Cambridge University Press: 2007), at 294
- ^ Robert Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800-1976 (University of North Carolina Press, 1978), at 6
- ^ Anthony Seldon, Ed., Blair's Britain, 1997-2007 (Cambridge University Press: 2007), at 113
- ^ See Treaty on European Union, art F, 1992 OJ (C 191) 1 (Jul 29, 1992). Paragraph 2 of Article F states, “The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms . . . and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”
- ^ See, for example, Valente v The Queen, [1985] 2 SCR 673 (Canada)
- ^ "Mt. Scopus Approved Revised International Standards of Judicial Independence Approved March 19, 2008". International Association of Judicial Independence and World Peace - International Project of judicial independence. Retrieved 11 October 2014.
- ^ Shimon Shetreet, Fundamental Values of the Justice System, 23 THE EUROPEAN BUSINESS LAW REVIEW 61-76, (2012).
- ^ a b Pemstein, Daniel, et al. "The V-Dem measurement model: latent variable analysis for cross-national and cross-temporal expert-coded data." V-Dem Working Paper 21 (2018).
- ^ Clark, D. "The struggle for judicial independence". Archived from the original on 2016-03-05. Retrieved 2019-01-07. [2013] 12 Macquarie Law Journal 21.
- ^ North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31, (2004) 218 CLR 146. Judgment summary (PDF), High Court
- ^ Gleeson, M (9 February 2007). "Public Confidence in the Courts" (PDF). High Court. Retrieved 13 November 2018.
- ^ Kirby, M (February 2001). "Discipline of judicial officers in Australia". High Court. Retrieved 7 January 2019.
- ^ Blackshield, A (1990). "The Appointment and Removal of Federal Judges". In Opeskin, B & Wheeler, F (eds.). The Australian Federal Judicial System. pp. 427–8.
- ^ Bathurst, T F. "Separation of Powers: Reality or Desirable Fiction?" (PDF). [2013] New South Wales Judicial Scholarship 39.
- ^ "The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China"- Chapter 1, basiclaw.gov.HK, 17 March 2008. Retrieved 2016-07-14.
- ^ "The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China"- Chapter 4, Section 4 Archived 2014-12-30 at the Wayback Machine, basiclaw.gov.HK, 17 March 2008. Retrieved 2016-07-14.
- Provincial Judges Reference, Supreme Court of Canada, para. 305.
- ^ "Independence". Courts and Tribunals Judiciary. Retrieved 9 November 2014.
- ^ Justice Gerard La Forest, Provincial Judges Reference, para. 306.
- ^ "Constitutional reform". Courts and Tribunals Judiciary. Retrieved 9 November 2014.
- ^ "Legal Services Act 2007", legislation.gov.uk, The National Archives, 2007 c. 29
- ^ Adams, John (1851). The Works of John Adams, Vol 3. Boston: Little and Brown. p. 522.
External links
- Independence of the judicial system Part I. The Independence of Judges Part II - the Prosecution Service Venice Commission, 2010