Judicial independence

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Judicial independence is the concept that the judiciary needs to be kept away 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 vital and 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.

In many 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.

Economic basis[edit]

Constitutional economics studies such issues as the proper national wealth distribution including the government spending on the judiciary, which in many transitional and developing countries is completely controlled by the executive. The latter undermines the principle of powers' “checks and balances”, as it creates a critical financial dependence of the judiciary. It is important to distinguish between the two methods of corruption of the judiciary: the state (through budget planning and various privileges – being the most dangerous), and the private. The state corruption of the judiciary makes it almost impossible for any business to optimally facilitate the growth and development of national market economy.[1]

Development of the concept of Judicial Independence[edit]

The five fundamental values of the justice systm[edit]

The principle of Judicial Independence is one of the core values of the justice and judicial independence[2]

The three phases of the normative cycle of shaping judicial independence[edit]

It has been suggested[3] that there is a cycle of national law impacting international law, and international law subsequently impacting national law. This occurs in three phases: the first phase is characterized by the domestic development of the concept of judicial independence, the second by the seeping of this concept into the international scene, and the third by the re-domestication of newly reformulated international principles of judicial independence, with significant and dramatic results. There cannot be a more instructive illustration of this cycle of impacting and reimpacting than that of the UK. The first phase occurred in England with the original conception of judicial independence in the Act of Settlement in 1701.[4] The second phase was evident when England’s concepts regarding judicial independence first entered the international scene, and from there moved into the domestic arenas of other countries; for instance, England served as the theoretical model for Montesquieu’s separation of powers doctrine[5] 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.[6] Other common law countries, including Canada, Australia, and India, also adopted the British model of judicial independence.[7] In recent decades the third phase of judicial independence has come to play in the UK,[8] as it has been significantly influenced by judicial independence principles developed by international human rights constitutional documents. The European Court of Human Rights (“ECtHR[JPJ1] ”) 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 later this process found its dramatic expression in the application of the ECHR in the British Human Rights Act, which came into force in 2000.[9] Where the British national law previously impacted the international law of judicial independence, the British Constitutional Reform Act of 2005[10] signaled a shift, with international law now also 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 aberrant 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.[11] 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.[12] 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.[13] The creation of the Supreme Court was important, for it finally separated the highest court of appeal from the House of Lords.[14] Thus, the UK, where the first phase of judicial independence began over three hundred years ago, illustrates vividly the mutual impacts of national and international law and jurisprudence in the area of judicial independence. It demonstrates a cycle of mutual normative impacts and cross-conceptual fertilizations. 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’s instructive illustration, similar developments of conceptual cross-fertilization can be seen internationally—in EU law,[15] in civil law countries such as Austria, and in other common law jurisdictions including Canada.[16]

The main provisions of the Mt. Scopus Standards[edit]

1. THE SIGNIFICANCE OF THE INDEPENDENCE OF THE JUDICIARY

1.1. An independent and impartial judiciary is an institution of the highest value in every society and an essential pillar of liberty and the rule of law.

1.2. The objectives and functions of the judiciary shall include:

1.2.1.1. To resolve disputes and to administer the law impartially between persons and between persons and public authorities;

1.2.1.2. To promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and

1.2.1.3. To ensure that all people are able to live securely under the rule of law.

2. THE JUDICIARY AND THE EXECUTIVE

2.1. The Judiciary as a whole shall be independent.

2.2. Each judge shall enjoy both personal independence and substantive independence:

2.2.1. Personal independence means that the terms and conditions of judicial service are adequately secured by law so as to ensure that individual judges are not subject to executive control; and

2.2.2. Substantive independence means that in the discharge of his judicial function, a judge is subject to nothing but the law and the commands of his conscience.

2.3. The Judiciary as a whole shall enjoy collective independence and autonomy vis-à-vis the Executive.

2.4. Judicial appointments and promotions by the Executive are not inconsistent with judicial independence as long as they are in accordance with Principles 4.

2.5. No executive decree shall reverse specific court decisions, or change the composition of the court in order to affect its decision-making.

2.6. The Executive may only participate in the discipline of judges by referring complaints against judges, or by the initiation of disciplinary proceedings, but not by the adjudication of such matters.

2.7. The power to discipline or remove a judge must be vested in an institution which is independent of the Executive.

2.8. The power of removal of a judge shall preferably be vested in a judicial tribunal.

2.9. The Executive shall not have control over judicial functions.

2.10. Rules of procedure and practice shall be made by legislation or by the Judiciary in cooperation with the legal profession, subject to parliamentary approval.

2.11. The state shall have a duty to provide for the execution of judgments of the Court. The Judiciary shall exercise supervision over the execution process.

2.12. Judicial matters are exclusively within the responsibility of the Judiciary, both in central judicial administration and in court level judicial administration.

2.13. The central responsibility for judicial administration shall preferably be vested in the Judiciary or jointly in the Judiciary and the Executive.

2.14. The principle of democratic accountability should be respected and therefore it is legitimate for the legislature to play a role in judicial appointments and central administration of justice provided that due consideration is given to the principle of judicial independence.

2.15. The process and standards of judicial selection shall give due consideration to the principle of fair reflection by the judiciary of the society in all its aspects.

2.15.1. Taking into consideration the principle of fair reflection by the judiciary of the society in all its aspects, in the selection of judges, there shall be no discrimination on the grounds of race, colour, gender, language, religion, national or social origin, property, birth or status, subject however to citizenship requirements. .

2.16. Candidates for judicial office shall be individuals of integrity and ability, well- trained in the law. They shall have equality of access to judicial office.

2.17. It is the duty of the state to provide adequate financial resources to allow for the due administration of justice.

2.18. Division of work among judges should ordinarily be done under a predetermined plan, which can be changed in certain clearly defined circumstances.

2.18.1. In countries where the power of division of judicial work is vested in the chief justice, it is not considered inconsistent with judicial independence to accord to the chief justice the power to change the predetermined plan for sound reasons, preferably in consultation with the senior judges when practicable.

2.18.2. Subject to 2.18.1, the exclusive responsibility for case assignment should be vested in a responsible judge, preferably the President of the Court.

2.19. The power to transfer a judge from one court to another shall be vested in a judicial authority according to grounds provided by law and preferably shall be subject to the judge’s consent, such consent not to be unreasonably withheld.

2.20. Judicial salaries and pensions shall be adequate at all times, fixed by law, and should be periodically reviewed independently of Executive control

2.21. The position of the judges, their independence, their security of tenure, and their adequate remuneration shall be entrenched constitutionally or secured by law.

2.22. Judicial salaries, pensions, and benefits cannot be decreased during judges’ service except as a coherent part of an overall public economic measure.

2.23. The Ministers of the government shall not exercise any form of pressure on judges, whether overt or covert, and shall not make statements which adversely affect the independence of individual judges, or of the Judiciary as a whole.

2.24. The power of pardon shall be exercised cautiously so as to avoid its use as an interference with judicial decision.

2.25. The Executive shall refrain from any act or omission which pre-empts the judicial resolution of a dispute, or frustrates the proper execution of a court judgment.

2.26. The Executive shall not have the power to close down, or suspend, or delay, the operation of the court system at any level.

3. THE JUDICIARY AND THE LEGISLATURE

3.1. The Legislature shall not pass legislation which reverses specific court decisions.

3.2. Legislation introducing changes in the terms and conditions of judicial service shall not be applied to judges holding office at the time of passing the legislation unless the changes improve the terms of service and are generally applied.

3.3. In case of legislation reorganising or abolishing courts, judges serving in these courts shall not be affected, except for their transfer to another court of the same or materially comparable status.

3.4. Everyone shall have the right to be tried expeditiously by the established ordinary courts or judicial tribunals under law, subject to review by the courts.

3.5. Part-time judges should be appointed only with proper safeguards secured by law.

3.6. The Legislature may be vested with the powers of removal of judges, upon a recommendation of a judicial commission or pursuant to constitutional provisions or validly enacted legislation.[17]

Canada[edit]

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[edit]

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.[18][19]

United Kingdom[edit]

In the United Kingdom and its predecessor states, judicial independence emerged slowly. Under the Norman monarchy of the Kingdom of England, the king and his Curia Regis held judicial power. Later, however, more courts were created and a judicial profession grew. In the fifteenth century, the king's role in this feature of government thus became small.[20] Nevertheless, kings could still influence courts and dismiss judges. The Stuart dynasty used this power frequently in order to overpower Parliament. After the Stuarts were removed in the Glorious Revolution of 1688, some advocated guarding against royal manipulation of the judiciary. King William III finally approved the Act of Settlement 1701, which established tenure for judges unless Parliament removed them.[21]

Under the uncodified British Constitution, there are two important conventions which help to preserve judicial independence. The first is that Parliament 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.

In modern times, the independence of the judiciary is guaranteed by the Constitutional Reform Act 2005, s.3. 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 will make recommendations to the government having taken 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.

As of March 2008, the legal profession is self-regulating; it is responsible for implementing and enforcing its own professional standards and disciplining its own members. In this case, the bodies are the Bar Council and the Law Society. However, this self-regulation will come to an end when those bodies themselves come under the regulation of the Legal Standards Board, composed of non-lawyers, under the Legal Services Act 2007.

United States of America[edit]

Federal courts[edit]

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,[22] 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." For instance, David Souter was appointed in the Supreme Court by President George H. W. Bush in 1990 but in Bush v. Gore case in 2000 vote with minority against President George W. Bush's legal position. It was specially mentioned in the book, written in Russian and bearing Souter's name in the title.[23] Justice of the Constitutional Court of the Russian Federation Yury Danilov, reviewing the book in a Moscow English-language daily, made the following remark on Souter's position in Bush v. Gore case: "In a most critical and delicate situation, David Souter had maintained the independence of his position and in this respect had become a symbol of the independence of the judiciary."[24]

State courts[edit]

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 focused increased attention on judicial outcomes as opposed to the traditional focus on judicial qualifications.

See also[edit]

References[edit]

  1. ^ Peter Barenboim, Defining the rules, The European Lawyer, Issue 90, October 2009
  2. ^ Shimon Shetreet, Fundamental Values of the Justice System, 23 THE EUROPEAN BUSINESS LAW REVIEW 61-76, (2012).
  3. ^ S Shetreet, ‘The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges’ (2009) 10 Chicago Journal of International Law 275-332
  4. ^ See generally Shimon Shetreet book, Judges on Trial.
  5. ^ See Baron de Montesquieu, The Spirit of the Laws (Hafner 1949) (Thomas Nugent, trans).
  6. ^ Article III of the US Constitution provides that “the judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation which shall not be diminished during their continuance in office.”
  7. ^ Shetreet, Judicial Independence at 590 (cited in note Error! Bookmark not defined.). See also Peter H. Russell, The Judiciary in Canada: The Third Branch of Government (McGraw-Hill Ryerson 1987); John Bell, Judicial Cultures and Judicial Independence, 4 Cambridge YB Eur Legal Studies 47 (2001).
  8. ^ UK Human Rights Act - 1998
  9. ^ Human Rights Act (1998), ch 42 (UK), available online at <http://www.opsi.gov.uk/ACTS/acts1998/ukpga_19980042_en_1> (visited Mar 27, 2009).
  10. ^ Constitutional Reform Act (2005), ch 4 (UK). For a detailed analysis of the history of this act, see Lord Windlesham, The Constitutional Reform Act 2005: The Politics of Constitutional Reform, 2006 Pub L 35; Lord Windlesham, The Constitutional Reform Act 2005: Ministers, Judges and Constitutional Change, 2005 Pub L 806. For accounts of the main players, see Lord Woolf, The Pursuit of Justice 161–74 (Oxford 2008); Lord Phillips, Constitutional Reform: One Year On, The Judicial Studies Board Annual Lecture (Mar 22, 2007); Lord Woolf, The Rule of Law and a Change in the Constitution, 2004 Camb L J 317; Tom Bingham, The Business of Judging: Selected Essays and Speeches 55–68 (Oxford 2000). All three authors served as lord chief justice in these formative years. Lord Woolf was active in the shaping of the legislation and Lord Phillips succeeded him
  11. ^ Anthony Seldon, Ed., Blair's Britain, 1997-2007 (Cambridge University Press: 2007), at 294
  12. ^ Robert Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800-1976 (University of North Carolina Press, 1978), at 6
  13. ^ Anthony Seldon, Ed., Blair's Britain, 1997-2007 (Cambridge University Press: 2007), at 294
  14. ^ Anthony Seldon, Ed., Blair's Britain, 1997-2007 (Cambridge University Press: 2007), at 113
  15. ^ See Treaty on European Union, art F, 1992 OJ (C 191) 1 (Jul 29, 1992). Paragraph 2 of Article F states, “The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms . . . and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”
  16. ^ See, for example, Valente v The Queen, [1985] 2 SCR 673 (Canada)
  17. ^ http://www.jiwp.org/#!mt-scopus-standards/c14de
  18. ^ [1]
  19. ^ [2]
  20. ^ Justice Gerard La Forest, Provincial Judges Reference, Supreme Court of Canada, para. 305.
  21. ^ Justice Gerard La Forest, Provincial Judges Reference, para. 306.
  22. ^ Adams, John (1851). The Works of John Adams, Vol 3. Boston: Little and Brown. p. 522. 
  23. ^ Петр Баренбойм, 3000 лет доктрины разделения властей: Суд Сьютера, M., 1996. / Petr Barenboim, 3000 years of the separation of powers doctrine: Souter court, Moscow, 1996; 2nd ed., 2003. / ISBN 5-7619-0015-7, http://lccn.loc.gov/2001434516
  24. ^ The Moscow News, October 15, 2003.

External links[edit]