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.
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 judicial independence
Alexander Hamilton, one of the Founding Fathers of the United States, by portraitist Daniel Huntington c. 1865. In The Federalist No. 78,
published 28 May 1788, Hamilton wrote: "The complete independence of
the courts of justice is particularly essential in a limited
constitution."
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. 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.
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.
The judiciary's role in deciding the validity of presidential and
parliamentary elections also necessitates independence of the judiciary.
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.
The relationship between the judiciary and the executive is a complex
series of dependencies and interdependencies which counter-check each
other and must be carefully balanced. One cannot 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. If the judiciary and
executive are constantly feuding, no government can function well.
Also, an extremely independent judiciary would 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. While judges are not democratically accountable to the people,
the key is for judges to achieve equilibrium between the two to ensure
that justice is upheld.
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.
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.
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.
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 Act of Settlement 1701.
The second phase was evident when England’s concepts regarding judicial
independence spread internationally, and were adopted into the domestic
law of other countries; for instance, England served as the model for
Montesquieu’s separation of powers doctrine, and the Founding Fathers of the US Constitution
used England as their dominant model in formulating the Constitution’s
Article III, which is the foundation of American judicial independence. Other common law countries, including Canada, Australia, and India, also adopted the British model of judicial independence.
In recent decades the third phase of judicial independence has been evident in the UK,
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.
Where British national law had previously impacted the international development of judicial independence, the British Constitutional Reform Act 2005
marked a shift, with international law now impacting British domestic
law. The Constitutional Reform Act dramatically reformed government
control over the administration of justice in England and Wales;
importantly, it discontinued the position of the Lord Chancellor,
one of the country’s oldest constitutional offices, who was entrusted
with a combination of legislative, executive, and judicial capacities. The Lord Chancellor served as speaker of the Upper House of Parliament, the House of Lords;
as a member of the executive branch and member of the senior cabinet;
and as the head of the judiciary. Historically, the appellate function
had a connection with the executive branch due to the types of cases
typically heard – impeachment and the hearing of felony charges against
peers.
The Constitutional Reform Act established new lines of demarcation
between the Lord Chancellor and the judiciary, transferring all the
judicial functions to the judiciary and entrusting the Lord Chancellor
only with what are considered administrative and executive matters. In
addition, the Constitutional Reform Act replaced the Lord Chancellor by
the Lord Chief Justice as head of the judiciary, separated the judicial Appellate Committee of the House of Lords from the legislative parliament, reforming it as the Supreme Court, and creating a Judicial Appointments Commission. The creation of the Supreme Court was important, for it finally separated the highest court of appeal from the House of Lords.
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, in civil law countries such as Austria, and in other common law jurisdictions including Canada.
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.
The justice system
In recent years, the principle of judicial independence has been described as one of the core values of the justice system.
Australia
There was a struggle to establish judicial independence in colonial Australia, but by 1901 it was entrenched in the Australian constitution, including the separation of judicial power such that the High Court of Australia
held in 2004 that all courts capable of exercising federal judicial
power must be, and must appear to be, independent and impartial. Writing in 2007 Chief Justice of Australia Murray Gleeson stated that Australians largely took judicial independence for granted and the details were not matters of wide interest. No federal judge and only one supreme court judge has been removed for misconduct since 1901.
Immunity from suit for judicial acts, security of tenure, and fixed
remuneration are all established parts of judicial independence in
Australia. The appointment of judges remains exclusively at the
discretion of the executive which gives rise to concerns expressed that
judicial appointments are political and made for political gain.
Issues continue to arise in relation to dealing with judicial
misconduct not warranting removal and incapacity of judges. In 2013 Chief Justice of NSW Tom Bathurst
identified the way in which judicial and court performance was measured
as one of the most substantial risks to the separation of powers in
Australia.
Canada
Canada has a level of judicial independence entrenched in its Constitution, awarding superior court justices various guarantees to independence under sections 96 to 100 of the Constitution Act, 1867.
These include rights to tenure (although the Constitution has since
been amended to introduce mandatory retirement at age 75) and the right
to a salary determined by the Parliament of Canada (as opposed to the executive). In 1982 a measure of judicial independence was extended to inferior courts specializing in criminal law (but not civil law) by section 11 of the Canadian Charter of Rights and Freedoms, although in the 1986 case Valente v. The Queen it was found these rights are limited. They do, however, involve tenure, financial security and some administrative control.
The year 1997 saw a major shift towards judicial independence, as the Supreme Court of Canada in the Provincial Judges Reference
found an unwritten constitutional norm guaranteeing judicial
independence to all judges, including civil law inferior court judges.
The unwritten norm is said to be implied by the preamble to the Constitution Act, 1867. Consequently, judicial compensation committees such as the Judicial Compensation and Benefits Commission
now recommend judicial salaries in Canada.
There are two types of judicial independence: institutional independence
and decisional independence. Institutional independence means the
judicial branch is independent from the executive and legislative
branches. Decisional independence is the idea that judges should be able
to decide cases solely based on the law and facts, without letting the
media, politics or other concerns sway their decisions, and without
fearing penalty in their careers for their decisions.
Hong Kong
In Hong Kong,
independence of the judiciary has been the tradition since the
territory became a British crown colony in 1842. After the 1997 transfer
of sovereignty of Hong Kong to the People's Republic of China pursuant to the Sino-British Joint Declaration, an international treaty registered with the United Nations, independence of the judiciary, along with continuation of English common law, has been enshrined in the territory's constitutional document, the Basic Law.
Singapore
Judicial independence in Singapore is protected by the Constitution of Singapore, statutes such as the State Courts Act and Supreme Court of Judicature Act, and the common law. To safeguard judicial independence, Singapore law lays down special procedures to be followed before the conduct of Supreme Court judges may be discussed in Parliament
and for their removal from office for misconduct, and provides that
their remuneration may not be reduced during their tenure. By statute,
judicial officers of the State Courts,
and the Registrar, Deputy Registrar and assistant registrars of the
Supreme Court have immunity from civil suits, and are prohibited from
hearing and deciding cases in which they are personally interested. The
common law provides similar protections and disabilities for Supreme
Court judges.
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 middle ages, under the Norman monarchy of the Kingdom of England, the king and his Curia Regis held judicial power. Judicial independence began to emerge during the early modern period;
more courts were created and a judicial profession grew. By the
fifteenth century, the king's role in this feature of government became
small. Nevertheless, kings could still influence courts and dismiss judges. The Stuart dynasty used this power frequently in order to overpower the Parliament of England. After the Stuarts were removed in the Glorious Revolution of 1688, some advocated guarding against royal manipulation of the judiciary. King William III approved the Act of Settlement 1701, which established tenure for judges unless Parliament removed them.
Contemporary usage
Under the uncodified British Constitution, there are two important conventions which help to preserve judicial independence. The first is that the Parliament of the United Kingdom does not comment on the cases which are before the court. The second is the principle of parliamentary privilege: that Members of Parliament are protected from prosecution in certain circumstances by the courts.
Furthermore, the independence of the judiciary is guaranteed by the Constitutional Reform Act 2005.
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.
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.
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 Bar Council and the Law Society. However, this self-regulation came to an end when approved regulators came under the regulation of the Legal Services Board, composed of non-lawyers, following the passage of the Legal Services Act 2007. This saw the establishment of the Solicitors Regulation Authority to regulate solicitors and the Bar Standards Board to regulate barristers.
United States of America
Federal courts
Article III of the United States Constitution establishes the federal courts as part of the federal government.
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, 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 Bush v. Gore,
in which a majority of the Supreme Court, including some appointees of
President George H. W. Bush, overruled challenges to the election of the
George W. Bush then pending in the Florida Supreme Court,
whose members had all been appointed by Democratic governors, is seen
by many as reinforcing the need for judicial independence, both with
regard to the Florida Supreme Court and the US Supreme Court. This case
has increased focus and attention on judicial outcomes as opposed to the
traditional focus on judicial qualifications.
