Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. In a judicial review, a court may invalidate laws, acts, or
governmental actions that are incompatible with a higher authority. For
example, an executive decision may be invalidated for being unlawful, or
a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers—the
power of the judiciary to supervise the legislative and executive
branches when the latter exceed their authority. The doctrine varies
between jurisdictions, so the procedure and scope of judicial review may
differ between and within countries.
General principles
Judicial review can be understood in the context of two distinct—but parallel—legal systems, civil law and common law,
and also by two distinct theories of democracy regarding the manner in
which government should be organized with respect to the principles and
doctrines of legislative supremacy and the separation of powers.
First, two distinct legal systems, civil law and common law,
have different views about judicial review. Common-law judges are seen
as sources of law, capable of creating new legal principles, and also
capable of rejecting legal principles that are no longer valid. In the
civil-law tradition, judges are seen as those who apply the law, with no
power to create (or destroy) legal principles.
Secondly, the idea of separation of powers
is another theory about how a democratic society's government should be
organized. In contrast to legislative supremacy, the idea of separation
of powers was first introduced by Montesquieu; it was later institutionalized in the United States by the Supreme Court's ruling in Marbury v. Madison that the court had the power of judicial review to enforce the separation of powers stated in the US Constitution. This was left uncontested by the U.S. Congress and president Thomas Jefferson, despite his expressed opposition to the principle of judicial review by an unelected body.
Separation of powers is based on the idea that no branch of
government should be able to exert power over any other branch without due process of law;
each branch of government should have a check on the powers of the
other branches of government, thus creating a regulative balance among
all branches of government. The key to this idea is checks and balances.
In the United States, judicial review is considered a key check on the
powers of the other two branches of government by the judiciary.
Differences in organizing democratic societies led to different views regarding judicial review, with societies based on common law and those stressing a separation of powers being the most likely to utilize judicial review.
Nevertheless, many countries whose legal systems are based on the idea
of legislative supremacy have gradually adopted or expanded the scope of
judicial review, including countries from both the civil law and common
law traditions.
Another reason why judicial review should be understood in the context of both the development of two distinct legal systems (civil law and common law)
and two theories of democracy (legislative supremacy and separation of
powers) is that some countries with common-law systems do not have
judicial review of primary legislation. Though a common-law system is
present in the United Kingdom, the country still has a strong attachment
to the idea of legislative supremacy; consequently, judges in the
United Kingdom do not have the power to strike down primary legislation.
However, when the United Kingdom became a member of the European Union there was tension between its tendency toward legislative supremacy and the EU's legal system, which specifically gives the Court of Justice of the European Union the power of judicial review.
Principles of review
When carrying out judicial review a court may ensure that the principle of ultra vires are followed, that a public body's actions do not exceed the powers given to them by legislation.
The decisions of administrative acts by public bodies under
judicial review are not necessarily controlled in the same way that
judicial decisions are, rather a court will enforce that principles of procedural fairness are followed when making judicial decisions.
Types
Review of administrative acts and secondary legislation
Most
modern legal systems allow the courts to review administrative "acts"
(individual decisions of a public body, such as a decision to grant a
subsidy or to withdraw a residence permit). In most systems, this also
includes review of secondary legislation
(legally enforceable rules of general applicability adopted by
administrative bodies). Some countries (notably France and Germany) have
implemented a system of administrative courts which are charged with
resolving disputes between members of the public and the administration,
regardless these courts are part of administration (France) or
judiciary (Germany). In other countries (including the United States and
United Kingdom), judicial review is carried out by regular civil courts
although it may be delegated to specialized panels within these courts
(such as the Administrative Court within the High Court of England and Wales). The United States employs a mixed system in which some administrative decisions are reviewed by the United States district courts (which are the general trial courts), some are reviewed directly by the United States courts of appeals and others are reviewed by specialized tribunals such as the United States Court of Appeals for Veterans Claims
(which, despite its name, is not technically part of the federal
judicial branch). It is quite common that before a request for judicial
review of an administrative act is filed with a court, certain
preliminary conditions (such as a complaint to the authority itself)
must be fulfilled. In most countries, the courts apply special
procedures in administrative cases.
Review of primary legislation
There are three broad approaches to judicial review of the constitutionality of primary legislation—that is, laws passed directly by an elected legislature.
In
countries which have inherited the English common law system of courts
of general jurisdiction, judicial review is generally done by those
courts, rather than specialised courts. Australia, Canada and the United
States are all examples of this approach.
In the United States, federal and state courts (at all levels, both appellate and trial) are able to review and declare the "constitutionality", or agreement with the Constitution (or lack thereof) of legislation by a process of judicial interpretation
that is relevant to any case properly within their jurisdiction. In
American legal language, "judicial review" refers primarily to the
adjudication of the constitutionality of statutes, especially by the Supreme Court of the United States.
Courts in the United States may also invoke judicial review in order to
ensure that a statute is not depriving individuals of their
constitutional rights. This is commonly held to have been established in the case of Marbury v. Madison, which was argued before the Supreme Court in 1803.
Judicial review in Canada and Australia pre-dates their establishment as countries, in 1867 and 1901, respectively. The British Colonial Laws Validity Act 1865
provided that a British colony could not enact laws which altered
provisions of British laws which applied directly to the colony. Since
the constitutions of Canada and Australia were enacted by the British
Parliament, laws passed by governments in Australia and Canada had to be
consistent with those constitutional provisions. More recently, the
principle of judicial review flows from supremacy clauses in their
constitutions.
In Australia, the term 'judicial review' generally refers to reviews of
the lawfulness of the actions of the executive and the public service,
while reviews of the compatibility of laws with the Australian
Constitution is known as characterisation or constitutional challenges.
In 1920, Czechoslovakia adopted a system of judicial review by a specialized court, the Constitutional Court as written by Hans Kelsen, a leading jurist of the time. This system was also adopted the same time by Austria and became known as the Austrian System,
also under the primary authorship of Hans Kelsen, being emulated by a
number of other countries. In these systems, other courts are not
competent to question the constitutionality of primary legislation; they
often may, however, initiate the process of review by the
Constitutional Court.
Russia adopts a mixed model since (as in the US) courts at all
levels, both federal and state, are empowered to review primary
legislation and declare its constitutionality; as in the Czech Republic,
there is a constitutional court in charge of reviewing the
constitutionality of primary legislation. The difference is that in the
first case, the decision about the law's adequacy to the Russian
Constitution only binds the parties to the lawsuit; in the second, the
Court's decision must be followed by judges and government officials at
all levels.
The discussion forms part of a larger debate on the fragmentation of international law.
While some scholars conceive each branch as a self-contained regime
distinct from other branches, others regard the three branches as
forming a larger normative system that seeks to protect the rights of
all human beings at all time. The proponents of the latter conception
view this holistic regime as including norms only applicable to certain
situations such as armed conflict and military occupation (IHL) or to
certain groups of people including refugees (refugee law), children (the
Convention on the Rights of the Child), and prisoners of war (the Geneva Convention (III) relative to the Treatment of Prisoners of War).
Definition of 'refugee'
There
is a variety of definitions as to who is regarded as a refugee, usually
defined for the purpose of a particular instrument. The variation of
definitions regarding refugees has made it difficult to create a
concrete and single vision of what constitutes a refugee following the
original refugee convention. Article 1 of the 1951 Refugee Convention, as amended by the 1967 Protocol, defines a refugee as:
A person who owing to a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of
his nationality and is unable or, owing to such fear, is unwilling to
avail himself of the protection of that country; or who, not having a
nationality and being outside the country of his former habitual
residence as a result of such events, is unable or, owing to such fear,
is unwilling to return to it.
The 1967 Protocol removed the temporal restrictions that restricted
refugee status to those whose circumstances had come about "as a result
of events occurring before 1 January 1951," and the geographic
restrictions that gave participating states of the Convention the option
of interpreting this as "events occurring in Europe" or "events
occurring in Europe or elsewhere". However, it also gave those states
that had previously ratified the 1951 Convention and chose to use the
geographically-restricted definition the option to retain that
restriction.
Any person compelled to leave his/her country owing to
external aggression, occupation, foreign domination or events seriously
disturbing public order in either part or the whole of his country of
origin or nationality.
In 1984, a group of Latin-American governments adopted the Cartagena Declaration on Refugees,
which, like the OAU Convention, added more objectivity based on
significant consideration to the 1951 Convention. The Cartagena
Declaration determine that a refugee includes:
Persons who flee their countries because their lives,
safety or freedom have been threatened by generalized violence, foreign
aggression, internal conflicts, massive violation of human rights or
other circumstances which have seriously disturbed public order.
Difference from 'asylee' and 'displaced person'
Additionally, U.S. Law draws an important distinction between refugees and asylees. A refugee
must meet the definition of a refugee, as outlined in the 1951
Convention and be of "special humanitarian concern to the United
States."
Refugee status can only be obtained from outside the United States. If
an individual who meets the definition of a refugee, and is seeking
admission in a port of entry is already in the United States, they are
eligible to apply for asylum status.
The term displaced person
has come to be synonymous with refugees due to a substantial amount of
overlap in their legal definitions. However, they are legally distinct,
and convey subtle differences. In general, a displaced person refers to "one who has not crossed a national border and thus does not qualify for formal refugee status."
In 1989, however, the UN signed an additional treaty, the Convention on the Rights of the Child (CRC), which defined the rights of children and bound its signatories to upholding those rights by international law.
Although the CRC was not specific to the rights of refugee minors, it
was used as the legal blueprint for handling refugee minor cases, where a
minor was defined as any person under the age of 18. In particular, it
extends the protection of refugee children by allowing participating
nations the capacity to recognize children who do not fall under the
strict guidelines of the Convention definition but still should not be
sent back to their countries of origin. It also extends the principle of non-refoulement
to prohibit the return of a child to their country "where there are
grounds for believing that there is a real risk of irreparable harm to
the child."
International sources
Refugee law encompasses both customary law, peremptory norms,
and international legal instruments. The only international instruments
directly applying to refugees are the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.
Both the Convention and the Protocol are open to states, but each may
be signed separately. 145 states have ratified the Convention, and 146
have ratified the Protocol. These instruments only apply in the
countries that have ratified an instrument, and some countries have
ratified these instruments subject to various reservations.
A Council Directive on minimum standards for the qualification and status of third-country nationals and stateless persons as refugees or as persons who otherwise need international protection and content of the protection granted.
Various regions and countries have different variations of refugee
law. They all stem from the 1951 Convention and the 1967 Protocol which
relates to refugee status. The United States became a party to this
protocol in 1968.
Despite playing an active role in the drafting of the Convention on the Rights of the Child, the United States has yet to ratify the treaty, making it the only nation in the United Nations that is not party to it.
Refugee status first emerged as a legal category in the United
States in the 1940s, responding to an influx of Eastern Europeans
fleeing Communism. In response to this influx, Congress established
refugee migration as "distinct and separate from general immigration
admissions" upon the recommendation from the House Committee on Postwar
Immigration. The Committee argued that the right to seek asylum be made "an explicit part of United States immigration policy."
Although the aftermath of World War II brought forth a refugee
crisis, the large influx and resettlement of Indochinese refugees led to
the passage of the Refugee Act of 1980. This law incorporated the International Convention's definitions of a refugee into U.S. law.
In doing so, it codified into U.S. law that a refugee was an individual
with a "well-founded fear of being persecuted for reasons of race,
religion, nationality, membership in a particular social group or
political opinion."
Furthermore, ratifying this Convention meant the elimination of
previous "ideological and geographical discriminations" against refugee
and asylum seekers.
These discriminations were a result of previous U.S. refugee law, which
had served mainly as a tool for foreign policy agendas. The law also
created the legal basis for the admission of refugees into the U.S. The
Refugee Act of 1980 was the first time the United States created an
objective decision-making process for asylum and refugee status. This
included a joint system between Congress and the Presidency, in which
both branches would collaborate to establish annual quotas and determine
which national groups would receive prioritized consideration for
refugee status. In doing so, the U.S. shifted away from a relatively
reactionary system, in which refugee laws were only passed in response
to political changes in the international community, primarily the
spread of Communism. Instead, under the Refugee Act of 1980, the U.S.
established a comprehensive framework for addressing refugee crises
preemptively. This framework was built on emerging ideals of
"humanitarianism".
An important aspect of this law is how an individual goes about
applying for status. A person may meet the definition of refugee but may
not be granted refugee status. If the individual is inside of the U.S.
with a different status or no status, they are granted the status of
asylee but not refugee.
In order to be considered a refugee in the United States, an individual must:
be located outside of the U.S.
be of specific humanitarian apprehension for the U.S.
be able to validate previous persecution or feared approaching
persecution based on the individual's race, religion, nationality,
social class, or political outlook
not be currently settled in another country
be admissible to the United States
The first step of being granted this status is to receive a referral
to the U.S. Refugee Admissions Program (USRAP). The person is allowed to
include their spouse, child, or other family members (only in specific
circumstances) when applying for refugee status. After the person is
referred, a U.S. Citizenship and Immigration Services officer located
abroad will conduct an interview to determine refugee resettlement
eligibility inside the United States.
If the person is approved as a refugee, they will then be provided with
many forms of assistance. These include a loan for travel, advice for
travel, a medical exam, and a culture orientation. After the refugee is resettled, they are eligible for medical and cash assistance. The Office of Refugee Resettlement
(ORR) has a program called the Cash and Medical Assistance Program
which completely reimburses the assistance in which states provide
refugees. The refugee is eligible for this cash and medical assistance up to eight months after their arrival date.
In the United States, refugees are subject to annual quotas,
which are determined by a joint collaboration between the incumbent
Presidential administration and Congress. In addition to establishing
the annual quota, Congress and the President determine which national
groups are of special humanitarian concern to the United States.
Since ratifying the 1980 Refugee Act, the United States has admitted
over 3.1 million refugees from around the world, many of who were
permanently resettled in the United States.
Prior to the Trump Administration, the United States was the global
leader in admitting refugees and offered refugee status to more
individuals than the rest of the world altogether.
Under the Trump administration, refugee immigration laws faced many
challenges and setbacks, as administration officials sought to rollback
immigration laws and decrease the annual number of refugees admitted.
Challenges to refugee law included contesting practices of
non-refoulement, which has been a long-standing principle of the U.S.
immigration system.
Attempts to reverse Trump-era policies have been a focus of the
subsequent Biden presidential administration. In 2021, it was announced
that Biden administration would raise the refugee cap from 15,000
individuals to 62,500 individuals.
The burden of refugee status determination (RSD) falls primarily on
the state. However, in cases where states are either unwilling or
unable, the UNHCR
assumes responsibility. In 2013, the UNHCR managed RSD in over 50
countries and worked in parallel with national governments in 20
countries. In the period from 1997 to 2001, the number of RSD applications submitted to the UNHCR nearly doubled.
RSD provides protection for refugees through promoting non-refoulement, resettlement assistance, and direct assistance.
Human rights and refugee law
Human rights
are the rights that a person is guaranteed by way of birth. The
following are universal human rights that are most relevant to refugees:
The right to freedom from torture or degrading treatment
The right to freedom of opinion and expression
The right to freedom of thought, conscience, and religion
The right to life, liberty, and security
Freedom from discrimination
The right to asylum
Refugee law and international human rights law are closely connected
in content but differ in their function. The main difference of their
function is the way in which international refugee law considers state sovereignty while international human rights law do not. One of the core principles of international refugee law is the prohibition on refoulement
(or the expulsion or return of a refugee), which is the basic idea that
a country cannot send back a person to their country of origin if they
will face endangerment upon return.
In this case, a certain level of sovereignty is taken away from a
country. This basic right of non-refoulement conflicts with the basic
right of sovereign state to expel any undocumented aliens.
International human rights law (IHRL) is the body of international law designed to promote human rights
on social, regional, and domestic levels. As a form of international
law, international human rights law are primarily made up of treaties, agreements between sovereign states intended to have binding legal effect between the parties that have agreed to them; and customary international law. Other international human rights instruments,
while not legally binding, contribute to the implementation,
understanding and development of international human rights law and have
been recognized as a source of political obligation.
International human rights law, which governs the conduct of a
state towards its people in peacetime is traditionally seen as distinct
from international humanitarian law
which governs the conduct of a state during armed conflict, although
the two branches of law are complementary and in some ways overlap.
A more systemic perspective explains that international
humanitarian law represents a function of international human rights
law; it includes general norms that apply to everyone at all time as
well as specialized norms which apply to certain situations such as
armed conflict between both state and military occupation (i.e. IHL) or
to certain groups of people including refugees (e.g. the 1951 Refugee Convention), children (the Convention on the Rights of the Child), and prisoners of war (the 1949 Third Geneva Convention).
In 2006, the United Nations Commission on Human Rights was replaced with the United Nations Human Rights Council
for the enforcement of international human rights law. The changes
prophesied a more structured organization along with a requirement to
review human rights cases every four years. The United Nations Sustainable Development Goal 10 also targets the promotion of legislation and policies towards reducing inequality.
More broadly, the UDHR has become an authoritative human rights reference. It has provided the basis for subsequent international human rights instruments that form non-binding, but ultimately authoritative international human rights law.
Regional
systems of international human rights law supplement and complement
national and international human rights law by protecting and promoting
human rights in specific areas of the world. There are three key
regional human rights instruments which have established human rights
law on a regional basis:
the European Social Charter
for Europe of 1961, in force since 1965 (whose complaints mechanism,
created in 1995 under an Additional Protocol, has been in force since
1998); and
The African Union (AU) is a supranational union consisting of 55 African countries.
Established in 2001, the AU's purpose is to help secure Africa's
democracy, human rights, and a sustainable economy, in particular by
bringing an end to intra-African conflict and creating an effective and
productive common market.
Pursuant to Article 63 (whereby it was to "come into force three
months after the reception by the Secretary General of the instruments
of ratification or adherence of a simple majority" of the OAU's member
states), the African Charter on Human and Peoples' Rights came into
effect on 21 October 1986, in honour of which 21 October was declared
African Human Rights Day.
The African Commission on Human and Peoples' Rights (ACHPR) is a quasi-judicial organ of the African Union,
tasked with promoting and protecting human rights and collective
(peoples') rights throughout the African continent, as well as with
interpreting the African Charter on Human and Peoples' Rights, and
considering individual complaints of violations of the Charter. The
commission has three broad areas of responsibility:
In pursuit of these goals, the commission is mandated to "collect
documents, undertake studies and researches on African problems in the
field of human and peoples' rights, organise seminars, symposia and
conferences, disseminate information, encourage national and local
institutions concerned with human and peoples' rights and, should the
case arise, give its views or make recommendations to governments."
With the creation of the African Court on Human and Peoples' Rights
(under a protocol to the Charter which was adopted in 1998 and entered
into force in January 2004), the commission will have the additional
task of preparing cases for submission to the Court's jurisdiction.
In a July 2004 decision, the AU Assembly resolved that the future Court
on Human and Peoples' Rights would be integrated with the African Court
of Justice.
The Court of Justice of the African Union is intended to be the "principal judicial organ of the Union".[19][20]
Although it has not yet been established, it is intended to take over
the duties of the African Commission on Human and Peoples' Rights, as
well as to act as the supreme court of the African Union, interpreting
all necessary laws and treaties. The Protocol establishing the African
Court on Human and Peoples' Rights entered into force in January 2004,
but its merging with the Court of Justice has delayed its
establishment. The Protocol establishing the Court of Justice will come
into force when ratified by fifteen countries.
There are many countries in Africa accused of human rights violations by the international community and NGOs.
The Organization of American States
(OAS) is an international organization headquartered in Washington, DC.
Its members are the thirty-five independent nation-states of the
Americas.
Over the course of the 1990s, with the end of the Cold War, the return to democracy in Latin America, and the thrust toward globalisation, the OAS made major efforts to reinvent itself to fit the new context. Its stated priorities now include the following:
strengthening democracy;
working for peace;
protecting human rights;
combating corruption;
the rights of indigenous peoples; and
promoting sustainable development.
The Inter-American Commission on Human Rights (IACHR) is an autonomous organ of the Organization of American States, also based in Washington, D.C. Along with the Inter-American Court of Human Rights, based in San José, Costa Rica, it is one of the bodies that comprise the inter-American system for the promotion and protection of human rights.
The IACHR is a permanent body which meets in regular and special
sessions several times a year to examine allegations of human rights
violations in the hemisphere. Its human rights duties stem from three
documents:
The Inter-American Court of Human Rights was established in 1979 with
the purpose of enforcing and interpreting the provisions of the
American Convention on Human Rights. Its two main functions are
therefore adjudicatory and advisory:
Under the former, it hears and rules on the specific cases of human rights violations referred to it.
Under the latter, it issues opinions on matters of legal
interpretation brought to its attention by other OAS bodies or member
states.
Many countries in the Americas, including Colombia, Cuba, Mexico and Venezuela, have been accused of human rights violations.
The Council of Europe,
founded in 1949, is the oldest organisation working for European
integration. It is an international organisation with legal personality
recognised under public international law, and has observer status at
the United Nations. The seat of the council is in Strasbourg in France.
The Council of Europe is responsible for both the European Convention on Human Rights and the European Court of Human Rights.
These institutions bind the council's members to a code of human rights
which, although strict, is more lenient than that of the UN Charter on
human rights.
The Council of Europe is separate from the European Union,
but the latter is expected to accede to the European Convention on
Human Rights. The Council includes all the member states of European
Union. The EU also has a separate human rights document, the Charter of Fundamental Rights of the European Union.
The European Convention on Human Rights has since 1950 defined and guaranteed human rights and fundamental freedoms in Europe.
All 47 member states of the Council of Europe have signed this
convention, and are therefore under the jurisdiction of the European
Court of Human Rights in Strasbourg. In order to prevent torture and inhuman or degrading treatment, the Committee for the Prevention of Torture was established.
The European Court of Human Rights is the only international
court with jurisdiction to deal with cases brought by individuals rather
than states. In early 2010, the court had a backlog of over 120,000 cases and a multi-year waiting list. About one out of every twenty cases submitted to the court is considered admissible. In 2007, the court issued 1,503 verdicts. At the current rate of proceedings, it would take 46 years for the backlog to clear.
Although these same international bodies also hold jurisdiction
over cases regarding international humanitarian law, it is crucial to
recognise, as discussed above, that the two frameworks constitute
different legal regimes.
The enforcement of international human rights law is the responsibility of the nation state; it is the primary responsibility of the State to make the human rights of its citizens a reality.
In practice, many human rights are difficult to enforce legally,
due to the absence of consensus on the application of certain rights,
the lack of relevant national legislation or of bodies empowered to take
legal action to enforce them.
In over 110 countries, national human rights institutions (NHRIs) have been set up to protect, promote or monitor human rights with jurisdiction in a given country. Although not all NHRIs are compliant with the Paris Principles, the number and effect of these institutions is increasing.
The Paris Principles
were defined at the first International Workshop on National
Institutions for the Promotion and Protection of Human Rights in Paris
from 7 to 9 October 1991, and adopted by UN Human Rights Commission
Resolution 1992/54 of 1992 and General Assembly Resolution 48/134 of
1993. The Paris Principles list a number of responsibilities for NHRIs.
Universal jurisdiction
is a controversial principle in international law, whereby states claim
criminal jurisdiction over people whose alleged crimes were committed
outside the boundaries of the prosecuting state, regardless of
nationality, country of residence or any other relationship to the
prosecuting country. The state backs its claim on the grounds that the
crime committed is considered a crime against all, which any state is
authorized to punish. The concept of universal jurisdiction is therefore closely linked to the idea that certain international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens.
In 1993, Belgium
passed a "law of universal jurisdiction" to give its courts
jurisdiction over crimes against humanity in other countries. In 1998, Augusto Pinochet was arrested in London following an indictment by Spanish judge Baltasar Garzón under the universal-jurisdiction principle.
Adolf Eichmann who was the former Nazi SS lieutenant colonel accused of
overseeing the transfer of Jews to Holocaust death camps also
persecuted in Israel in 1961. Adolf was living in Argentina after the
war.
The principle is supported by Amnesty International and other human rights organisations,
which believe that certain crimes pose a threat to the international
community as a whole, and that the community has a moral duty to act.
Others, like Henry Kissinger,
argue that "widespread agreement that human rights violations and
crimes against humanity must be prosecuted has hindered active
consideration of the proper role of international courts. Universal
jurisdiction risks creating universal tyranny—that of judges".
Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts
should not be subject to improper influence from the other branches of
government or from private or partisan interests. Judicial independence
is important for the idea of separation of powers.
Many countries deal with the idea of judicial independence through different means of judicial selection, or choosing judges. One way to promote judicial independence is by granting life tenure or long tenure for judges, which ideally frees them to decide cases and make rulings according to the rule of law and judicial discretion,
even if those decisions are politically unpopular or opposed by
powerful interests. This concept can be traced back to 18th-century
England.
In some countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review.
This power can be used, for example, by mandating certain action when
the judiciary perceives that a branch of government is refusing to
perform a constitutional duty or by declaring laws passed by the
legislature unconstitutional.
Theory of evolution
Importance
Judicial independence serves as a safeguard for the rights and privileges provided by a limited constitution and prevents executive and legislative encroachment upon those rights. 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 inter-dependencies which counter-check each
other and must be carefully balanced. One can be too independent of the
other. Furthermore, judicial support of the executive is not as negative
as it seems as the executive is the branch of government with the
greatest claim to democratic legitimacy. Roger K. Warren writes that if
the judiciary and executive are constantly feuding, no government can
function well.
An extremely independent judiciary would also lack judicial
accountability, which is the duty of a public decision-maker to explain
and justify a decision and to make amendments where a decision causes
injustice or problems. Judges are not required to give an entire account
of their rationale behind decisions, and are shielded against public
scrutiny and protected from legal repercussions. However judicial
accountability can reinforce judicial independence as it could show that
judges have proper reasons and rationales for arriving at a particular
decision. Warren opines that while judges are not democratically
accountable to the people, the key is for judges to achieve equilibrium
between accountability and independence to ensure that justice is
upheld.
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.
Judicial independence metrics
Judicial
independence metrics allow a quantitative analysis of judicial
independence for individual countries. One judicial independence metric
is the high court independence index in the V-Dem Dataset, where higher values indicate higher independence, shown below for individual countries.
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 AustraliaMurray 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 NSWTom 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.
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 Courtjudges 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.
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.
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.
...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.
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.