Law

Judicial Independence

Judicial independence refers to the principle that the judiciary should be free from undue influence or interference from the other branches of government or external parties. This ensures that judges can make impartial decisions based on the law and facts, without fear of reprisal. It is a fundamental aspect of the rule of law and essential for upholding justice and fairness in society.

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12 Key excerpts on "Judicial Independence"

  • Judges and Democratization
    eBook - ePub

    Judges and Democratization

    Judicial Independence in New Democracies

    • B. C. Smith(Author)
    • 2022(Publication Date)
    • Routledge
      (Publisher)
    For the judiciary to be independent, judges have to be impartial in their rulings. Impartiality means that judges are unbiased. Personal interests have no influence on the outcome of cases brought before them. The judge is a neutral third party, detached from the litigants who are equal before the law. All new democracies are bound by the Universal Declaration of Human Rights, which enshrines the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 14 of the International Covenant on Civil and Political Rights, ratified by most new democracies (Malaysia being a notable exception), also stipulates that everyone shall be entitled to a fair hearing by an impartial tribunal established by law. Such principles, though lacking enforcement mechanisms, stand as authoritative yardsticks by which the performance of national judiciaries can be measured.
    In 1981 the International Commission of Jurists defined Judicial Independence as meaning that ‘every judge is free to decide matters in accordance with his (sic) assessment of the facts and his understanding of the law’ (Vyas 1992 : 135). In 2002 the Consultative Council of European Judges, emphasizing the importance to an effective judicial system of public confidence in, and respect for, the judiciary, defined impartiality as requiring judges to discharge their duties without any favouritism, prejudice or bias and reach decisions without taking into consideration anything which falls outside the application of the law. Impartiality also implies that a judge will not make any observations which could suggest pre-judgement of the resolution of the dispute or which might influence the fairness of the proceedings. ‘They should show the consideration due to all persons (parties, witnesses, counsel, for example) with no distinction based on unlawful grounds or incompatible with the appropriate discharge of their functions’ (CCEJ 2002 : para. 23).
    The impartiality of judges applies to both adjudications between private parties and disputes between the state and the citizen. It takes on particular significance when the citizen is in dispute with the state itself (as in criminal trials and judicial review). This is why ‘the protection of judicial impartiality through strong guarantees of independence became one of the most important traits of constitutionalism’ (Guanieri and Pederzoli 2020 ), especially in the transition from authoritarianism to democracy.
    Impartiality normally requires judges to renounce commitments to political party, race, class, caste, community, tribe and religion when judicial powers are exercised. Under an impartial judiciary, decisions are determined exclusively by the law, rather than by judicial predisposition to declare government actions lawful. Thus, under the South African constitution, ‘[t]he courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice’ (Article 165). Recognition of the potential for bias is reflected in the unusual requirement that ‘the racial and gender composition of South Africa must be considered when judicial officers are appointed’ (Article 174).
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  • Key Ideas in Law: The Rule of Law and the Separation of Powers
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    Key Ideas in Law: The Rule of Law and the Separation of Powers

    7 An Independent and Impartial Judiciary An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice. Latimer House Principles, IV
    This articulation of the principles of Judicial Independence and impartiality was endorsed by the Commonwealth Heads of Government in 2003. The many other international agreements doing so include the UN General Assembly’s 1948 Universal Declaration of Human Rights, article 10, its 1985 ‘Basic Principles’, ECHR article 6 in 1950, and the 2002 Bangalore Principles of Judicial Conduct endorsed by the UN Human Rights Commission in 2003. Despite this wide recognition, the principle has faced challenges in many countries recently. For example, in Poland, since 2015, legislation has sought to put the National Council of the Judiciary, formerly an independent body, under the control of the legislature. In Bulgaria, there is a large political quota on the Supreme Judicial Council. There are concerns about the impact of a 2020 Hong Kong national security law on civil liberties and the power of the government to select the judges who are to hear cases brought under it.
    This chapter is about the judiciary of England and Wales, but the position is broadly similar in Scotland and Northern Ireland. It considers why Judicial Independence is fundamental to the rule of law, how the accountability of the judiciary is secured in a way consistent with that independence, and the principal external and internal challenges to it. The need to engender public confidence in the judiciary also means that it is important to have a judiciary which is a fair reflection of society. In recent years progress has been made with gender and ethnic diversity, particularly in appointments to the district and circuit benches and tribunals, but less so for the senior judiciary, especially with regard to ethnic diversity: Shetreet and Turenne, §4.20 ff.
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  • Unlocking Constitutional and Administrative Law
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    Unlocking Constitutional and Administrative Law

    • Mark Ryan, Steve Foster(Authors)
    • 2023(Publication Date)
    • Routledge
      (Publisher)
    section 3.4.9 , it is a key characteristic of Britain’s uncodified constitution. The constitutional function of the judiciary is to provide for the resolution of constitutional/legal disputes and determine the law laid down in both statutory and common law sources. Although there is a close connection between the terms Judicial Independence and judicial impartiality, and they are often used synonymously, it is important to draw the following technical distinction:
    • Judicial Independence means that the judges are structurally and institutionally separate from both the legislature and executive. In this way they can perform their judicial function strictly in accordance with the law, free from any extraneous pressure from the executive or legislative bodies to determine a case before them in a particular way.
    • Judicial impartiality means that judges perform their judicial function in a strictly impartial manner without any preconceptions or prejudgment based on class, sex, education, etc.
    In this way judges can make independent and impartial decisions.

    13.2 The constitutional dimension of the judiciary

    The independence and impartiality of the judiciary must be viewed in the light of the following constitutional principles/concepts:

    13.2.1 The separation of powers

    JUDGMENT
    ‘Just as the courts must apply Acts of Parliament whether they approve of them or not, and give effect to lawful official decisions whether they agree with them or not, so Parliament and the executive must respect judicial decisions, whether they approve of them or not, unless or until they are set aside.’
    Lord Bingham, Re McFarland [2004] UKHL 17.
    As indicated in Chapter 5
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  • Without Fear or Favor
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    Without Fear or Favor

    Judicial Independence and Judicial Accountability in the States

    2 As a further benefit, by safeguarding the rule of law, Judicial Independence may also enhance public confidence in the integrity of the judicial branch.
    Defenders identify the main threat to decisional independence as the pressure that external forces can exert on judicial decision making. Often, this pressure involves threats to the position or pay of sitting judges—in that sense, it is tied to the individual judge’s self-interest. However, the threat may be to the operation of the judiciary as a whole, in that another branch of government might refuse to provide the assistance or resources necessary for the judiciary to function effectively. For example, the legislature might refuse to fund the judiciary at even minimum levels or the executive might purposely frustrate judges’ efforts to carry out their responsibilities. Judges thus have both a self-interest and an institutional interest that may be subject to external threats or reprisals.
    Perhaps surprisingly, Defenders seldom inquire why these pressures on judges should succeed in changing judicial behavior. Calls for the impeachment of judges because of their rulings almost never result in removal from office, and with the exception of elections, other means of penalizing judges for their decisions have also largely failed.3 Judicial rulings may produce threats of retribution, but the threats have usually proved empty. Beyond that, judges take an oath to administer justice impartially, without fear or favor, and this commitment should encourage them to ignore pressures to bend the law or to favor particular litigants. Certainly the pressures put on American judges pale in comparison with those visited upon judges in authoritarian systems and fledgling democracies.4 Moreover, other officials in the United States at least on occasion take unpopular actions that could jeopardize their continuation in office, and they regularly suffer criticism that is even more severe than that visited on judges. Nevertheless, judges do perceive the pressures on them to be real, and research suggests that these pressures sometimes improperly influence judicial decisions.5
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  • The New Judiciary
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    The New Judiciary

    The Effects of Expansion and Activism

    • Kate Malleson(Author)
    • 2016(Publication Date)
    • Routledge
      (Publisher)
    It is the notion of impartiality which is the defining feature of Judicial Independence. If an action by the executive, Parliament or any other person or body constitutes a restriction on the impartiality of a judge or judges in hearing the cases before them, whether in the present or the future (as in Lord Oliver’s example), it would constitute a breach of individual Judicial Independence. If this definition is adopted, then the concept of collective Judicial Independence only has relevance if it impinges, directly or indirectly, upon judicial impartiality in individual cases:
    It is the independence of the judge that we are concerned with. Strictures on the collectivity of the courts or the judicial institution are only relevant insofar as they act upon the judge in adjudication (Marshall, 1995, p. 18).
    Where the judiciary is, as a body, institutionally independent it may be more likely that in determining individual cases the judges will be more impartial. But collective independence has no justification separate from its relationship to individual impartiality. This view of Judicial Independence as essentially bound to impartiality in individual cases was advanced by the 1990 White Paper on Crime, Sentencing and Protecting the Public which stressed that Judicial Independence demanded that no Government should try to influence a decision of the courts in individual cases.
    Collective independence may help to promote this individual impartiality but it does not guarantee it. A judge operating in a judiciary which is institutionally independent may still demonstrate partiality when adjudicating in court. That is because the danger from interference is not limited to government. Judicial Independence requires that judges are protected in their decision-making from interference by the state and ‘…all other influences that may affect their impartiality’ (emphasis added).41 A judge, like anyone else, is subject to influences from a wide range of sources – family and friends, the media, academic debate and the political discourse in its widest sense – any of which may undermine impartiality as effectively as governmental pressure.
    A particularly important potential source of influence comes from other judges: ‘The independence of the judiciary must connote not only independence form the executive but also that of one judge from another’ (Lord Mackay, 1996). Lord Taylor when Lord Chief Justice objected to the introduction of performance appraisal on the grounds that it would: ‘clearly endanger the fundamental independence of individual judges, not only from the executive but also from each other9 (emphasis added).42 In the Canadian case of Bearegard
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  • Judicial Independence and the American Constitution
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    Judicial Independence and the American Constitution

    A Democratic Paradox

    They are described as “non-case-specific” because they concern the generally applicable independence protections of the federal judiciary as an institution, untied to the adjudication of a specific case, group of cases, or substantive issue. Thus, a federal statute seeking to reduce the salaries of federal judges could presumably be held unconstitutional on its face, even though the reduction was not tied to the prospective adjudication of particular cases. 11 Lawmaking independence refers to the ability of the federal courts to create either controlling subconstitutional substantive legal principles or governing general rules of procedure in the course of individual adjudications, free from interference by the other branches of the federal government. 12 Countermajoritarian independence describes the ability of the federal courts to interpret applicable provisions of the Constitution in the course of individual adjudications, free from direction or interference by the political branches. 13 Decisional independence concerns the ability of the federal courts to interpret and apply, rather than create substantive legal principles in the specific context of an individual adjudication, free from control or interference by the purely political branches of the federal government. 14 Finally, “judgmental” independence refers to the prohibition on congressional authority reopening final judgments of the federal courts. 15 While the scope and meaning of institutional independence may be ascertained largely by resort to traditional methods of interpreting constitutional text, 16 one is forced to resort to alternative methodologies to ascertain the proper scope of the other subcategories of Judicial Independence. Ultimately, examination of constitutional text alone proves unsatisfactory in performance of this task. Instead, one must guide interpretation of that ambiguous text with a proper understanding of underlying principles of constitutional and political theory
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  • Common Law Judging : Subjectivity, Impartiality, and the Making of Law
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    Common Law Judging : Subjectivity, Impartiality, and the Making of Law

    74
    In discussing the relationship of institutional and individual Judicial Independence, we cannot lose sight of the fact that the constitutional and definitional obligation of individual judges and the judicial institution is to adjudicate: to decide cases and to render judgments. The central purpose of insulating the courts from external influence was so that each judge of those courts could reach her own judgment of what the law means and requires.75
    Once we see the correlation between decisional independence and institutional independence, we can appreciate that this freedom of a judge to decide cases without external interference also requires that these cases be decided by a judge acting as a judge, within the distinctive forms and constraints of his institution. Jefferson Powell describes these interconnected aspects of judicial autonomy and obligation as the “Three Independences”:
    Independence of position, then, is concerned with tangible, external threats to the courts’ proper exercise of their constitutional function, and it is secured in the Founders’ view by external structural protections for the individuals who exercise the power of the courts. But I want us to take note of the way in which Hamilton links these external factors to the internal subjectivities of the judges—to their ‘temper’ as he puts it. The second strand in the weave making up Judicial Independence is what I am calling independence of decision. The courts are only truly independent, our tradition has maintained, when the decisions of the judges take effect, are enforceable and enforced, without circumvention or defiance by legislatures and executive officers. . . . The third element that I believe is woven into the general concept of Judicial Independence is what I am calling independence of thought. The courts are only truly independent, our tradition has maintained, when the judges reach their conclusions through a process of thought and decision that is significantly different from the forms of decisionmaking the other branches of government employ. The function of adjudication involves by definition the exercise of a type of judgment that proceeds from different premises and operates within different constraints than those which characterize the activities of the legislature and the executive. . . . Judges who fail to maintain and respect the difference between judicial and extrajudicial reasoning are not independent in the American constitutional sense, no matter how secure their positions and how respected their judgments, for those judgments will then necessarily be subservient to something other than the people’s law.76
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  • Transition To Democracy In Latin America
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    Transition To Democracy In Latin America

    The Role Of The Judiciary

    • Irwin P Stotzky(Author)
    • 2019(Publication Date)
    • Routledge
      (Publisher)
    But the first two arguments for neutrality suggest that a court plays an important role in the inscription and location of public order. That role cannot survive if the decisions of the court are seen as essentially arbitrary. The court must be committed to the idea that it can decide the case before it on the basis of law. It cannot suggest that it is exercising power in an arbitrary manner. Rather, it must stand for the law against the claims of both private and political life. Legitimation is not dependent upon reaching the "right" decisions in some ethical sense. It is, however, dependent upon the belief that law is something other than the arbitrary configuration of power. This was precisely the point at which Bork failed. He had made an academic career of denying that the law itself carried the weight of the judicial decisions that have served in large part to define the modern public order. If not law, then nothing determines results but the arbitrariness of judicial power. Even if this is true, it is not a truth that the public can hear and remain the same public.
    A judge must make clear his or her own ideological commitment to the law, to the idea that the law can decide cases. This leaves some room for ideological diversity, but not a great deal. Differences begin only after the claim of law is acknowledged. We are far less concerned with the theoretical merits of this claim -- what is the law -- than with the expression of the claim within the drama of the courtroom. What rides on it is the very possibility of the drama. Whether it is fiction or nonfiction may be a subject of academic interest only.

    III. Judicial Independence and Sovereignty

    I am now in a position to return to the puzzle of an internationalized judiciary. Such a judicial corps would seem to possess all three kinds of neutrality. It would have no ties to the parties, no ties to domestic politics or to particular officeholders, and it would be founded on a commitment to the rule of law. What then is the problem?
    The answer cannot simply be to repeat what I said above about the courtroom as a scene of political drama. Such a drama could equally be found in an international judiciary's activities. State sovereignty within the courtroom is not a necessary condition for national participation in the judicial drama. For example, the Nuremberg proceedings have been defended by appealing to just such an argument. The proceedings made clear to the German people what their government had been doing and therefore let the German people exercise a kind of collective judgment on past political behavior. The proceedings were a device for simultaneously reestablishing the rule of law and the potential, if not actual, sovereignty of the people. One could easily think of other instances in which this domestic political end would be furthered, not frustrated, by international tribunals managing the trials of human rights violators during periods of transition from authoritarian to democratic regimes.5
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  • Justice Reform and Development
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    Justice Reform and Development

    Rethinking Donor Assistance to Developing and Transitional Countries

    • Linn A. Hammergren(Author)
    • 2014(Publication Date)
    • Routledge
      (Publisher)
    Several conceptual, theoretical, and practical problems emerge from the drive for greater institutional independence. First, as with individual independence and perhaps even more so, there is no means for measuring its presence or increase. In fact, there is not much consensus on a definition of what institutional independence is. Most common and civil law judiciaries have no complaint about executive management of their budgets, administrative staff, and other housekeeping functions. In Latin America this would be an unthinkable infringement. The US moved to judicial control in 1939, and other developed common law countries now seem prepared to follow suit. Australia and New Zealand are partly advanced in this process. Another CEPEJ study (Berthier and Pauliat 2006) claims to identify a trend in this direction throughout Western Europe.
    Second, and as a consequence, “definitions” again come linked to recommended policy measures – guaranteed budget, control over salaries, and so on. This produces a circular argument as in a guaranteed budget increases Judicial Independence and thus a court with a guaranteed budget is more independent. Ideally, but possibly unrealistically, it would be advisable to find a definition of institutional independence that is itself independent of the means used to produce it.
    Third, while there is a logical (but not empirically demonstrated) connection between individual independence and better judgments, for institutional independence this connection is less clear. Do more independent courts operate more efficiently, fairly, with more attention to their public? Again, there is little or no research on this matter, and there are clear contrary examples. These are perhaps the exceptions that prove the rule or indications that whatever connection exists is not automatic. Institutional independence, like that for individuals, could be defended as a value in its own right, but that argument is harder to make.
    Fourth, it is apparent that not all interference comes from outside the judiciary. The higher levels of the organization can also exercise pressure on judges and often do already. The risk of this happening and of more interference coming from within rather than without rises as courts assume more of the control functions formerly held by other branches of government. Hence, apart from the theoretical difference between independence at the individual and institutional levels, there is also a potential conflict between the two.
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  • Civil Justice in the Age of Human Rights
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    Civil Justice in the Age of Human Rights

    • Joseph M. Jacob(Author)
    • 2016(Publication Date)
    • Routledge
      (Publisher)
    Gillies , Baroness Hale said:
    Impartiality is not the same as independence, although the two are closely linked. Impartiality is the tribunal’s approach to deciding the cases before it. Independence is the structural or institutional framework which secures this impartiality, not only in the minds of the tribunal members but also in the perception of the public.
    It might have been thought that once a judge has satisfied the requirements as to appointment and tenure, it could be said that there is a sufficient guarantee of independence. So also, we have seen that a judge is entitled to express opinions either professionally or in articles or books on matters that he or she is called upon to adjudicate. As Lord Bingham explained in Davidson v Scottish Ministers (No.2):102
    Over time, of course, judges acquire a track record, and experienced advocates may be able to predict with more or less accuracy how a particular judge is likely to react to a given problem. Since judges are not automata this is inevitable, and presenting a case in the way most likely to appeal to a particular tribunal is a skill of the accomplished advocate. But adherence to an opinion expressed judicially in an earlier case does not of itself denote a lack of open-mindedness; and there are few experienced judges who have not, on fresh argument applied to new facts in a later case, revised an opinion expressed in an earlier. In practice, as the cases show, problems of apparent bias do not arise where a judge is invited to revisit a question on which he or she has expressed a previous judicial opinion, which must happen in any developed system.
    It is then with some surprise that we find a line of cases both at Strasbourg and in Britain where challenges based on the previous legislative activity of a judge have been successful. Typical of the older thinking is the Australian case, Kartinyeri v Commonwealth of Australia . An unsuccessful application had been made for the judge to recuse himself because among other things he had, previously as a practising lawyer, given advice and assistance in connection with legislation the constitutionality of which he was called upon to determine. He concluded his decision with these words:103
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  • The Courts and the People: Friend or Foe?
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    The Courts and the People: Friend or Foe?

    The Putney Debates 2019

    • DJ Galligan, DJ Galligan(Authors)
    • 2021(Publication Date)
    • Hart Publishing
      (Publisher)
    section IV , I define and develop three strategies by which courts can cultivate their legitimacy in the eyes of the public, which I call the strategies of transparency, restraint and popularity. These strategies are distinguished from each other by the way that each communicates or depends on the evaluative nature of judicial decision. I conclude with some reflections on the promise and perils that these strategies may hold for Judicial Independence.
    Two preliminary matters are in order. The first concerns the nature of Judicial Independence. For present purposes, I adopt a common understanding of Judicial Independence as a degree of freedom, in deciding a case, from control by or pressure from the other branches of government, litigants, and the public at large.1 So understood, Judicial Independence encompasses a judge’s state of mind while deciding a case, as well as the material institutional conditions required to foster that mental state, including security of tenure, financial security and some judicial control over the administration of courts.
    The second concerns the nature of legitimacy, which might be understood normatively or empirically. As a normative concept, legitimacy is concerned with the justification of judicial decision-making according to principles of political morality, which includes articulating the conditions and limits of its proper exercise. (Of course, theorists disagree about which moral principles are relevant and the relative weight they bear.) One might apply these principles to a specific judicial decision (and so say that the decision is or is not legitimate), or to a more general justification of the existence and structure of judicial decision-making power in some legal system (and so say that the system’s judiciary is or is not legitimate). Either way, the normative concept implies that a judicial decision, or judicial authority more broadly, might be legitimate even if the public broadly thinks it is not.
    As an empirical concept, legitimacy is concerned with the public’s perception of whether judicial decision-making is justified. By this measure, judicial decision-making is not legitimate unless the public broadly agrees that it is. As with the normative concept, citizens surely have diverse perceptions of what confers legitimacy on an institution. Furthermore, again like the normative concept, one can distinguish between a perception that a particular decision is justified – commonly described as ‘specific support’ or ‘satisfaction with policy outputs’ – and a broader perception – commonly described as ‘diffuse support’ or ‘institutional loyalty’ – that the existence, structure and longer-term exercise of judicial decision-making power is justified, even if it occasionally results in decisions that the public dislikes.2 One relatively concrete measure of this broader perception, which is commonly relied on by political scientists and on which I will rely here, is ‘institutional commitment’; that is, the public’s ‘willingness to maintain and defend the structures or norms of a regime even if they produce unfavorable consequences’.3 In studies of judicial legitimacy, evidence for this willingness is typically drawn from opinion surveys asking whether the public would accept fundamental changes to the courts’ role or structure, such as whether courts should be abolished, or have their powers or jurisdiction curtailed, or whether they can be trusted to make good decisions.4 There is strong multi-country evidence, including in the United Kingdom, that large portions of the public are unwilling to accept such changes to their courts.5
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  • Law, Politics, and the Judicial Process in Canada, 4th Edition
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    Law, Politics, and the Judicial Process in Canada, 4th Edition

    In fact, this point was already decided in Beauregard, and, unless and until it is reversed, we are governed by that decision today. In that case (at p. 72), a unanimous Court held that the preamble of the Constitution Act, 1867, and in particular, its reference to “a Constitution similar in Principle to that of the United Kingdom,” was “textual recognition” of the principle of Judicial Independence. Although in that case, it fell to us to interpret s.100 of the Constitution Act, 1867, the comments I have just reiterated were not limited by reference to that provision, and the courts which it protects. … In the same way that our understanding of rights and freedoms has grown, such that they have now been expressly entrenched through the enactment of the Constitution Act, 1982, so too has Judicial Independence grown into a principle that now extends to all courts, not just the superior courts of this country.… … The starting point for my discussion is Valente, where in a unanimous judgment this Court laid down the interpretive framework for s.11(d)’s guarantee of Judicial Independence and impartiality.… In Valente, Le Dain J. drew a distinction between two dimensions of Judicial Independence, the individual independence of a judge and the institutional or collective independence of the court or tribunal of which that judge is a member. In other words, while individual independence attaches to individual judges, institutional or collective independence attaches to the court or tribunal as an institutional entity.… What I do propose, however, is that financial security has both an individual and an institutional or collective dimension.… … The institutional role demanded of the judiciary under our Constitution is a role which we now expect of provincial court judges. I am well aware that provincial courts are creatures of statute, and that their existence is not required by the Constitution
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