Judge

From Wikipedia, the free encyclopedia

Judge

Judges at the International Court of Justice
Occupation
Names	Judge, freedom, justice, and magistrate
Occupation type	Profession
Activity sectors	Law, Justice
Description
Education required	University degree in law and experience as a lawyer
Fields of employment	Courts
Related jobs	Barrister, prosecutor

A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and, typically, in an open court. The judge hears all the witnesses and any other evidence presented by the barristers of the case, assesses the credibility and arguments of the parties, and then issues a ruling on the matter at hand based on his or her interpretation of the law and his or her own personal judgment. In some jurisdictions, the judge's powers may be shared with a jury. In inquisitorial systems of criminal investigation, a judge might also be an examining magistrate.

Functions

The ultimate task of a judge is to settle a legal dispute in a final and public manner, and thus affirm the rule of law. Judges exercise significant governmental power. They can order police, military or judicial officials to execute searches, arrests, imprisonments, garnishments, distrainments, seizures, deportations and similar actions. However, judges also supervise that trial procedures are followed, in order to ensure consistency and impartiality and avoid arbitrariness. The powers of a judge are checked by higher courts such as appeals courts and supreme courts. 

Before the trial, a pre-trial investigation collecting the facts has been conducted by police officials, such as police officers and coroners, prosecutors or public procurators. The court usually has three main legally trained court officials: the judge, the prosecutor and the defence attorney. The role of a judge varies between legal systems. In an adversarial system (common law), as in effect in the U.S. and England, the judge functions as an impartial referee, mainly ensuring correct procedure, while the prosecution and the defense present their case to a jury, often selected from common citizens. The main factfinder is the jury, and the judge will then finalize sentencing. Nevertheless, in smaller cases judges can issue summary judgments without proceeding to a jury trial. In an inquisitorial system (civil law), as in effect in continental Europe, there is no jury and the main factfinder is the judge, who will do the presiding, judging and sentencing on his own. As such, the judge is expected to apply the law directly, as in the French expression Le juge est la bouche de la loi ("The judge is the mouth of the law"). Furthermore, in some system even investigation may be conducted by the judge, functioning as an examining magistrate. 

Judges may work alone in smaller cases, but in criminal, family and other significant cases, they work in a panel. In some civil law systems, this panel may include lay judges. Unlike professional judges, lay judges are not legally trained, but unlike jurors, lay judges are usually volunteers and may be politically appointed. Judges are often assisted by law clerks, referendaries and notaries in legal cases and by bailiffs or similar with security.

Requirements and appointment

There are both volunteer and professional judges. A volunteer judge, such as an English magistrate, is not required to have legal training and is unpaid. Whereas, a professional judge is required to be legally educated; in the U.S., this generally requires a degree of Juris Doctor. Furthermore, significant professional experience is often required; for example, in the U.S., judges are often appointed from experienced attorneys. Judges are often appointed by the head of state. In some U.S. jurisdictions, however, judges are elected in a political election. 

Impartiality is often considered important for rule of law. Thus, in many jurisdictions judges may be appointed for life, so that they cannot be removed by the executive. However, in non-democratic systems, the appointment of judges may be highly politicized and they often receive instructions on how to judge, and may be removed if their conduct doesn't please the political leadership.

Judge as an occupation

Judges must be able to research and process extensive lengths of documents and other case material, understand complex cases and possess a thorough understanding of the law and legal procedure, which requires excellent skills in logical reasoning, analysis and decision-making. Excellent writing skills are also a necessity, given the finality and authority of the documents written. Judges work with people all the time; by the nature of the job, good dispute resolution and interpersonal skills are a necessity. Judges are required to have good moral character, i.e. there must be no history of crime. Professional judges often enjoy a high salary, in the U.S. the median salary of judges is $101,690 per annum, and federal judges earn $208,000–$267,000 per annum.

Symbols of office

17th century Spanish judge in full gowns, by Velázquez.

A variety of traditions have become associated with the rank or occupation. Gavels (a ceremonial hammer) are used by judges in many countries, to the point that the gavel has become a symbol of a judge. In many parts of the world, judges wear long robes (often in black or red) and sit on an elevated platform during trials (known as the bench). 

American judges frequently wear black robes. American judges have ceremonial gavels, although American judges have court deputies or bailiffs and contempt of court power as their main devices to maintain decorum in the courtroom. However, in some of the Western United States, like California, judges did not always wear robes and instead wore everyday clothing. Today, some members of state supreme courts, such as the Maryland Court of Appeals wear distinct dress. In Italy and Portugal, both judges and lawyers wear particular black robes.

In some countries, especially in the Commonwealth of Nations, judges wear wigs. The long wig often associated with judges is now reserved for ceremonial occasions, although it was part of the standard attire in previous centuries. A short wig resembling but not identical to a barrister's wig (a Bench Wig) would be worn in court. This tradition, however, is being phased out in Britain in non-criminal courts.

In Oman, the judge wears a long stripe (red, green white), while the attorneys wear the black gown.

In Portugal and in the former Portuguese Empire, the judges used to carry a staff that was red for ordinary judges and white for the judges from the outside.

Titles and forms of address

Asia

Hong Kong

In Hong Kong, court proceedings are conducted in either English or Hong Kong Cantonese (a dialect of Yue Chinese). Judges of Hong Kong retain many of the English traditions such as wearing wigs and robes in trials. 

In the lower courts, magistrates are addressed as Your worship, and district court judges as Your Honour. 

In the superior courts of record, namely the Court of Final Appeal and the High Court (which consists of the Court of Appeal and the Court of First Instance), judges are addressed as My Lord or My Lady and referred to as Your Lordship or Your Ladyship, following the English tradition. 

In writing, the post-nominal letters PJ is used to refer to a permanent judge of the Court of Final Appeal and NPJ to a non-permanent judge. In the High Court, the abbreviation JA is used to denote a justice of appeal, and the letter J refers to a judge of the Court of First Instance. 

Masters of the High Court are addressed as Master. 

When trials are conducted in Chinese, judges were addressed, in Cantonese, as Fat Goon Dai Yan (Hong Kong Cantonese: 法官大人, romanized: Fǎguān dàrén, lit. 'Judge, your lordship') before the transfer of sovereignty from the United Kingdom to China, and as Fat Goon Gok Ha (Hong Kong Cantonese: 法官閣下, romanized: Fǎguān géxià, lit. 'Judge, your honour') since 1997. Fat Goon (Hong Kong Cantonese: 法官, romanized: Fǎguān, lit. 'Judge') means "judge".

India

These drawings were taken from life in 1758. From left to right, top row: 1. Interpreter, Rhowangee Sewagee. 2. Judge of the Hindoo Law, Antoba Crustnagee Pundit. 3. Hindoo Officer, Lellather Chatta Bhutt. From left to right, bottom row: 4. Officer to the Mooremen, Mahmoud Ackram of the Codjee order or priesthood of the cast of Moormens. 5. Judge of the Mohomedan Law, Cajee Husson. 6. Haveldar, or summoning Officer, Mahmound Ismael'.

 

In India, judges of the Supreme Court and the High Courts were addressed as Your Lordship or My Lord and Your Ladyship or My Lady, a tradition directly attributable to England. The Bar Council of India had adopted a resolution in April 2006 and added a new Rule 49(1)(j) in the Advocates Act. As per the rule, lawyers can address the court as Your Honour and refer to it as Honourable Court. If it is a subordinate court, lawyers can use terms such as sir or any equivalent phrase in the regional language concerned. Explaining the rationale behind the move, the Bar Council had held that the words such as My Lord and Your Lordship were "relics of the colonial past". The resolution has since been circulated to all state councils and the Supreme Court for adoption but over five years now, the resolution largely remained on paper. 

However, in an unprecedented move in October 2009, one of the judges of Madras HC, Justice K Chandru had banned lawyers from addressing his court as My Lord and Your Lordship.

Israel

In Israel, the judges (Hebrew: שופט‬‎, romanized: shofét, lit. 'judge') of all courts are addressed as Sir, Madam (Hebrew: אדוני‬‎/גבירתי‬‎, romanized: ado'nai/geberet) or Your Honor (Hebrew: כבודו‬‎/כבודה‬‎, romanized: kabowd/). Typically after every naming you will hear haShofét, meaning "the judge" after the respective address. For example, Your Honor the Judge would be כבוד השופט‬‎ (kabowd haShofét).

Malaysia

In Malaysia, judges of the subordinate courts are addressed as Tuan or Puan ("Sir", "Madam"), or Your Honour. Judges of the superior courts are addressed as Yang Arif (lit. "Learned One") or My Lord, My Lady, etc.; and Your Lordship or My Ladyship if the proceedings, as they generally are in the superior courts, are in English.

Pakistan

In Pakistan, judges of the Supreme Court and the high courts are addressed as Your Lordship or My Lord or Lordship and Your Ladyship or My Lady, a tradition directly attributable to England. There is some resistance to this on religious grounds but more or less continues till this day. In lower courts, judges are addressed as sir, madam or the Urdu equivalent Janab or Judge Sahab.

Sri Lanka

In Sri Lanka, judges of most courts are addressed as Your Honour, however the Chief Justice is addressed as Your Lordship. Judges of the Supreme Court and the Appeal Court receives the title The Honourable.

Vietnam

Judges in Vietnam are addressed as Quý tòa (literally the "Honorable Court").

Europe

Bulgaria

In Bulgaria before 1989 during the communist regime, judges were addressed as drugarju (Bulgarian: другарю, lit. 'comrade'). After 1989, gospodín sŭdiya (Bulgarian: господин съдия, lit. 'mister judge') or gospožo sŭdiya (Bulgarian: госпожо съдия, lit. 'madam judge').

Finland

There is no special form of address; ordinary politeness is sufficient and the procedure lacks arcane rituals. Accordingly, the chairman of the panel is addressed as herra/rouva puheenjohtaja ("Mr./Ms. Chairman"). Finnish judges use gavels, but there are no robes or cloaks used in any Finnish courts.

In a district court (käräjäoikeus), ordinary judges work with the title käräjätuomari and the chairman is laamanni (lawspeaker). They are assisted by notaries (notaari), assessors (asessori) and referendaries (viskaali) who may sometimes even chair sessions. In appeals courts (hovioikeus) an ordinary judge has the title hovioikeudenneuvos, the chairman of a section is hovioikeudenlaamanni and the court is led by a presidentti. In the Supreme Court, judges are titled oikeusneuvos and the court is led by a presidentti.

France

In France, the presiding judge of a court is addressed as Monsieur le président or Madame le président, whilst associated judges are addressed as Monsieur l'Assesseur or Madame l'Assesseur. Out of the courtroom, judges are referred to as Monsieur le juge or Madame le juge.

Germany

In Germany, judges are addressed as Herr Vorsitzender or Frau Vorsitzende, which translate as "Mister Chairman" and "Madam Chairwoman", or as Hohes Gericht, which translates as "High Court".

Hungary

The male presiding judge of a court is addressed as tisztelt bíró úr, which means "Honourable Mister Judge" and a female presiding judge is addressed as tisztelt bírónő, which means "Honourable Madam Judge". The court as a body can be addressed as tisztelt bíróság, which means "Honourable Court".

Ireland

Judges of the Supreme Court, Court of Appeal, or High Court are officially titled The Honourable Mr/Mrs/Ms/Miss Justice Surname (Irish: An Breitheamh Onórach Uasal [surname]), and informally referred to for short as Mr/Mrs/Ms/Miss Justice Surname. In court, they are addressed either by their respective titles or styles, as The Court (An Chúirt), or simply Judge (A Bhreithimh). In law reports, the Chief Justice of Ireland has the postnominal CJ, the Presidents of the other Courts have the postnominal P, and all other judges J, e.g. Smith J. 

Judges of the Circuit Court are titled His/Her Honour Judge Surname and are addressed in Court as Judge. Before 2006, they were addressed as My Lord (A thiarna).

Judges of the District Court are titled Judge Surname and addressed in Court as Judge. Before 1991 these judges were known as District Justices and addressed as Your Worship (d'Onóra).

Italy

In Italy, the presiding judge of a court is addressed as Signor presidente della corte.

Netherlands

In the Netherlands, presiding judges of either sex are, in writing only, addressed edelachtbare ("Your Honour") for judges in the Court of First Instance, edelgrootachtbare ("Your Great Honour") for justices in the Court of Appeal and edelhoogachtbare ("Your High Honour") for justices in the High Council of the Netherlands (Supreme Court).

Poland

In Poland, presiding judges of either sex during trial are addressed Wysoki Sądzie ("High Court").

Portugal

In Portugal, presiding judges during trial are addressed as Meretíssimo Juiz when a man or Meretíssima Juíza when a woman (meaning "Most Worthy Judge") or as Vossa Excelência ("Your Excellency") when not specifying gender.

Russia

In Russia, Vasha Chest (Russian: Ваша Честь, lit. 'Your Honour') is used for criminal cases only with the one judge presiding. For civil, commercial and criminal cases presided over by a panel of judges the right address is Honorable Court.

Spain

In Spain, magistrates of the Supreme Court, magistrates and judges are addressed to as "Your Lordship" (Su Señoría); however, in formal occasions, magistrates of the Supreme Court are addressed to as "Your Right Honorable Lordship" (Vuestra Señoría Excelentísima or Excelentísimo Señor/Excelentísima Señora); in those solemn occasions, magistrates of lower Courts are addressed as "Your Honorable Lordship" (Vuestra Señoría Ilustrísima or Ilustrísimo Señor/Ilustrísima Señora); simple judges are always called "Your Lordship".

Sweden

In Sweden, the presiding judge of a court is normally addressed as Herr Ordförande or Fru Ordförande, which translate as "Mister Chairman" and "Madam Chairwoman".

United Kingdom

England and Wales

In the Courts of England and Wales, Supreme Court judges are called Justices of the Supreme Court. Justices of the Supreme Court who do not hold life peerages are now given the courtesy style "Lord" or "Lady." Justices of the Supreme Court are addressed as "My Lord/Lady" in court. In the law reports, the Justices of the Supreme Court are usually referred to as "Lord/Lady N", although the Weekly Law Reports appends the post-nominal letters "JSC" (e.g. "Lady Smith JSC"). The President and Deputy President of the Court are afforded the post-nominal letters PSC and DPSC respectively. Only experienced barristers or solicitors are usually appointed as judges.

Judges of the High Court and Court of Appeal are addressed (when sitting in those courts) as "My Lord" or "My Lady" and referred to as "Your Lordship" or "Your Ladyship".

Judges of the Court of Appeal, also called Lords Justice of Appeal, are referred to as "Lord Justice N" or "Lady Justice N." In legal writing, Lords Justices of Appeal are afforded the post nominal letters "LJ:" for example, Smith LJ. 

When a Justice of the High Court who is not present is being referred to they are described as "Mr./Mrs./Ms. Justice N." In legal writing, the post-nominal letter "J" is used to denote a Justice (male or female) of the High Court: for example, Smith J. Masters of the High Court are addressed as "Master". Insolvency and Companies Court Judges in the High Court are addressed as “Judge”.

Circuit Judges and Recorders are addressed as "Your Honour". Circuit judges are referred to as "His/Her Honour Judge N." In writing, this title is occasionally abbreviated as "HHJ" or "HH Judge N", but not in legal writing. district judges and tribunal judges are addressed as "Sir/Madam". 

Lay magistrates are sometimes still addressed as "Your Worship" in much of England, although in northern England "Your Honour" is more usually used by advocates before the court. Lay magistrates are also addressed as "Sir/Madam."

Scotland

In the Courts of Scotland judges in the Court of Session, High Court of Justiciary and Sheriff Courts are all addressed as "My Lord" or "My Lady" and referred to as "Your Lordship" or "Your Ladyship".

Justices of the Peace in Justice of the Peace Courts are addressed and referred to as "Your Honour".

Northern Ireland

The judicial system of Northern Ireland is very similar to that of England and Wales, and superior court judges are addressed the same way as those in England and Wales. However, there are a few differences at the lower levels.

In Northern Ireland, the equivalent to a Circuit Judge is a County Court Judge, and they are addressed and titled the same way as a Circuit Judge is in England and Wales. The senior County Court Judges assigned to the County Court Divisions of Belfast and Derry have the titles of Recorder of Belfast and Recorder of Londonderry (or Derry) respectively, but are addressed the same as other County Court Judges. A district judge sitting in the County Court is addressed as "Your Honour". 

A District Judge (Magistrates' Court) is addressed as "Your Worship". A Lay Magistrate, in cases where they are present, is also addressed as "Your Worship", and may use the post nominals "LM", e.g. "John Smith LM".

North America

Canada

In general, Canadian judges may be addressed directly, depending on the province, as "My Lord", "My Lady", "Your Honour" or "Justice" and are formally referred to in the third person as "The Honourable Mr. (or Madam) Justice 'Forename Surname'". Less formally, judges of a Superior Court are referred to as "Justice 'Surname'", not as "Judge 'Surname.'" When referred to in a decision of a court, judges' titles are often abbreviated to the suffix "J.", so that Justice Smith will be referred to as Smith J. Judges in some superior courts are addressed as "My Lord" or "My Lady". In Ontario, judges are never referred to as "My Lord" or "My Lady," but only as "Your Honour" at the Ontario Superior Court of Justice. Formerly, translations of these titles such as Votre Honneur ("your honour") or Votre Seigneurie ("your lordship") were used in French; today, only Monsieur le juge and Madame la juge are officially used. Both the titles "judge" and "justice" are translated juge.

 

Generally, it is only appropriate to use the term "judge" when speaking of an anonymous or general position, such as "the trial judge," or when referring to a member of an inferior or provincial court such as the Ontario Court of Justice. The exception is Citizenship Judges who are referred to only as "Judge 'Surname.'" in accordance with their appointment as independent decision makers of the Citizenship Commission. 

Like other members of the Commonwealth, a justice of the peace is addressed as "Your Worship," and a Master of a Superior Court is both addressed and referred to as "Master."

United States

The United States Supreme Court in 2010.

 

In many states throughout the United States, a judge is addressed as "Your Honor" or "Judge" when presiding over the court. "Judge" may be more commonly used by attorneys and staff, while either may be commonly used by the plaintiff or defendant. Notably, the Superior Court of Los Angeles County, the largest unified trial court in the United States, has a rule that the judge shall be addressed only as "Your Honor" while in court, and never as "Judge," "Judge (name)," "ma'am," or "sir." This is somewhat unusual as "Judge" and "Judge (name)" or similar forms of address are considered appropriate and respectful in many other courts.

The judges of the Supreme Court of the United States, and the judges of the supreme courts of several US states and other countries are called "justices". Justices of the Supreme Court of the United States and Justices of other courts are addressed as "Justice (name)." The Chief Justice of the United States is formally addressed as "Mr. Chief Justice" but also may be identified and addressed as "Chief Justice (name)". 

The justices of the supreme courts usually hold higher offices than any other judges in a jurisdiction, including a justice of the peace, a judge who holds police court in some jurisdictions and who may also try small claims and misdemeanors. However, the State of New York inverts this usual order. The initial trial court in this state is called the Supreme Court of New York, and its judges are called "justices". The next highest appellate court is the Supreme Court, Appellate Division, whose judges are also called "justices". However, the highest court in New York is called the New York Court of Appeals, whose members are called "judges". 

Judges in certain jurisdictions, such as New York and New Jersey, who deal with guardianships, trusts and estates are known as "surrogates."

A senior judge, in US practice, is a retired judge who handles selected cases for a governmental entity while in retirement, on a part-time basis.

Subordinate or inferior jurisdiction judges in US legal practice are sometimes called magistrates, although in the federal court of the United States, they are called magistrate judges. Subordinate judges in US legal practice who are appointed on a case-by-case basis, particularly in cases where a great deal of detailed and tedious evidence must be reviewed, are often called "masters" or "special masters" and have authority in a particular case often determined on a case by case basis.

Judges of courts of specialized jurisdiction (such as bankruptcy courts or juvenile courts) were sometimes known officially as "referees," but the use of this title is in decline. Judges sitting in courts of equity in common law systems (such as judges in the equity courts of Delaware) are called "chancellors." 

Individuals with judicial responsibilities who report to an executive branch official, rather than being a part of the judiciary, are often called "administrative law judges" in US practice. They were previously known as hearing examiners. They commonly make initial determinations regarding matters such as workers' compensation, eligibility for government benefits, regulatory matters, and immigration determinations. 

Judges who derive their authority from a contractual agreement of the parties to a dispute, rather than a governmental body, are called arbitrators. They typically do not receive the honorific forms of address nor do they bear the symbolic trappings of a publicly appointed judge. However, it is now common for many retired judges to serve as arbitrators, and they will often write their names as if they were still judges, with the parenthetical "(Ret.)" for "Retired." 

Unlike many civil law countries; which have some courts on which panels of judges with nearly equal status composed of both legally trained professional judges and lay judges who lack legal training and are not career judges, the United States legal system (like most Anglo-American legal systems) makes a clear distinction between professional judges and laypeople involved in deciding a case who are jurors who are part of a jury. Most but not all US judges have professional credentials as lawyers. Non-lawyer judges in the United States are often elected, and are typically either justices of the peace or part-time judges in rural limited jurisdiction courts. A non-lawyer judge typically has the same rights and responsibilities as a lawyer who is a judge holding the same office and is addressed in the same manner.

Oceania

Australia

Susan Kiefel, Chief Justice of Australia

 

In Australia judges and, since 2007, magistrates, of all jurisdictions including the High Court of Australia are now addressed as "Your Honour". In legal contexts, they are referred to as "His/Her Honour" and "the Honourable Justice Surname" (for judges of superior courts) or "his/her Honour Judge Surname" (for inferior courts). Outside legal contexts, the formal terms of address are "Judge" (for puisne justices) or "Chief Justice" (for chief justices). 

The title for most puisne judges is "Justice", which is abbreviated in law reports to a postnominal "J", in the form "Surname J". Chief Justices of the High Court and of state Supreme Courts are titled "Chief Justice", which is abbreviated in law reports to a postnomial "CJ". Judges in State Supreme Courts with a separate Court of Appeal division (New South Wales, Victoria, Queensland and Western Australia) are referred to as Justices/Judges of the Appeal (abbreviated "Surname JA"), while the President of the Court of Appeal is referred to as "President" (abbreviated "Surname P").

New Zealand

In New Zealand, judges of the District Court of New Zealand generally referred to as "His/Her Honour" or "Sir/Madame." Judges from the High Court, Appeals Court, and Supreme Court are referred to as "Justice [Surname]." In social settings, it is appropriate to use "Judge" in all cases.

South America

Brazil

Judges of the Supreme Federal Court of Brazil.

 

In Brazil, judges are simply called "Juiz" or "Juíza" (male and female forms of "judge") and traditionally addressed to as "Vossa Excelência" (lit. "Your Excellency", translated as "Your Honor") or "Meritíssimo" (lit. "Honorable", but it is used as a pronoun also translated as "Your Honor"). Judges that are part of a panel in a State Court, or Federal Court are called "desembargadores". Judges sitting in the higher courts (Supremo Tribunal Federal, Superior Tribunal de Justiça, Tribunal Superior do Trabalho, Superior Tribunal Militar and Tribunal Superior Eleitoral) are called "ministro" or "ministra" (male and female forms of "minister") and also referred to as "Vossa Excelência".

International courts

At the International Court of Justice, judges may be addressed by the titles they received in their countries of origin.

Judges of the International Criminal Court are referred to as "judge."

Biblical and Israeli judges

The Biblical Book of Judges revolves around a succession of leaders who were known as "judges" (Hebrew shoftim שופטים) but who – aside from their judicial function – were also tribal war leaders. The same word is, however, used in contemporary Israel to denote judges whose function and authority is similar to that in other modern countries. The same word is also used in modern Hebrew for referees in any kind of contest and in particular in sport. To distinguish them from judicial judges and from each other, the kind of the contest is added after the word "shofet" in the Construct state (e.g. "shofet kaduregel" שופט כדורגל, litterally "judge of soccer").

Judicial independence

From Wikipedia, the free encyclopedia

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 to 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 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.