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.
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.
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. [1] 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. [2]
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. [3] The judiciary's role in deciding the validity of presidential and parliamentary elections also necessitates independence of the judiciary. [4]
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. [5] 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. [6]
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. [7] Judicial supremacy could potentially promote an elitist autocracy, but this can be balanced through democracy. [8]
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. [9]
In some countries, the constitution also prohibits the legislative branch from reducing salaries of sitting judges.
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. [10] 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. [10]
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. [11] 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, [12] 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. [13] Other common law countries, including Canada, Australia, and India, also adopted the British model of judicial independence. [14]
In recent decades the third phase of judicial independence has been evident in the UK, [15] 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. [16]
Where British national law had previously impacted the international development of judicial independence, the British Constitutional Reform Act 2005 [17] 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. [18] 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. [19] 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. [18] The creation of the Supreme Court was important, for it finally separated the highest court of appeal from the House of Lords. [20]
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, [21] in civil law countries such as Austria, and in other common law jurisdictions including Canada. [22]
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. [23]
In recent years, the principle of judicial independence has been described as one of the core values of the justice system. [24]
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, [25] where higher values indicate higher independence, shown below for individual countries.
There was a struggle to establish judicial independence in colonial Australia, [26] 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. [27] 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. [28] No federal judge and only one supreme court judge has been removed for misconduct since 1901. [29] 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. [30] 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. [31]
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.
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. [32] [33]
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.
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. [34] 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. [35] [36]
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.[ citation needed ]
Furthermore, the independence of the judiciary is guaranteed by the Constitutional Reform Act 2005. [37] 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.[ citation needed ]
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.[ citation needed ]
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. [38]
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, [39] 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 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 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.
Separation of powers is the division of a government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with others. The typical division into three branches of government, sometimes called the trias politica model, includes a legislature, an executive, and a judiciary. It can be contrasted with fusion of powers in many monarchies, but also parliamentary and semi-presidential systems in which overlap can exist in membership and functions between different branches, especially the executive and legislative.
Article Three of the United States Constitution establishes the judicial branch of the U.S. federal government. Under Article Three, the judicial branch consists of the Supreme Court of the United States, as well as lower courts created by Congress. Article Three empowers the courts to handle cases or controversies arising under federal law, as well as other enumerated areas. Article Three also defines treason.
The judiciary of Germany is the system of courts that interprets and applies the law in Germany.
Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others. This philosophy heavily influenced the drafting of the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct in order to prevent abuse of power. The American form of separation of powers is associated with a system of checks and balances.
The Constitutional Reform Act 2005 is an Act of the Parliament of the United Kingdom, relevant to UK constitutional law. It provides for a Supreme Court of the United Kingdom to take over the previous appellate jurisdiction of the Law Lords as well as some powers of the Judicial Committee of the Privy Council, and removed the functions of Speaker of the House of Lords and Head of the Judiciary of England and Wales from the office of Lord Chancellor.
The court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. In the courts, the judiciary interpret and apply the law of Canada. Some of the courts are federal in nature, while others are provincial or territorial.
The Supreme Court (Filipino: Kataas-taasang Hukuman; colloquially referred to as the Korte Suprema, is the highest court in the Philippines. The Supreme Court was established by the Second Philippine Commission on June 11, 1901 through the enactment of its Act No. 136, an Act which abolished the Real Audiencia de Manila, the predecessor of the Supreme Court.
The Supreme Court of the United Kingdom is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the United Kingdom's highest appellate court for these matters, it hears cases of the greatest public or constitutional importance affecting the whole population.
Federalist No. 78 is an essay by Alexander Hamilton, the seventy-eighth of The Federalist Papers. Like all of The Federalist papers, it was published under the pseudonym Publius.
The Reference re Remuneration of Judges of the Provincial Court (P.E.I.) [1997] 3 S.C.R. 3 is a leading opinion of the Supreme Court of Canada in response to a reference question regarding remuneration and the independence and impartiality of provincial court judges. Notably, the majority opinion found all judges are independent, not just superior court judges and inferior court judges concerned with criminal law, as the written constitution stipulates. Unwritten constitutional principles were relied upon to demonstrate this, indicating such principles were growing in importance in constitutional interpretation. The reference also remains one of the most definitive statements on the extent to which all judges in Canada are protected by the Constitution.
The Constitutional Court of Korea is one of the highest courts—along with the Supreme Court—in South Korea's judiciary that exercises constitutional review, seated in Jongno, Seoul. The South Korean Constitution vests judicial power in courts composed of judges, which establishes the ordinary-court system, but also separates an independent constitutional court and grants it exclusive jurisdiction over matters of constitutionality. Specifically, Chapter VI Article 111(1) of the South Korean Constitution specifies the following cases to be exclusively reviewed by the Constitutional Court:
In the United States, judicial review is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the U.S. Constitution does not explicitly define the power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.
In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, and highcourt of appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of a supreme court are binding on all other courts in a nation and are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts. A Supreme Court can also, in certain circumstances, act as a court of original jurisdiction, however, this is typically limited to constitutional law.
The Constitutional Court of the Russian Federation is a high court within the judiciary of Russia which is empowered to rule on whether certain laws or presidential decrees are in fact contrary to the Constitution of Russia. Its objective is only to protect the Constitution and deal with a few kinds of disputes where it has original jurisdiction, whereas the highest court of appeal is the Supreme Court of Russia.
The Supreme Court is the highest court in the Kingdom of Spain. Originally established pursuant to Title V of the Constitution of 1812 to replace —in all matters that affected justice— the System of Councils, and currently regulated by Title VI of the Constitution of 1978, it has original jurisdiction over cases against high-ranking officials of the Kingdom and over cases regarding illegalization of political parties. It also has ultimate appellate jurisdiction over all cases. The Court has the power of judicial review, except for the judicial revision on constitutional matters, reserved to the Constitutional Court.
The constitution of the United Kingdom comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no official attempt has been made to codify such arrangements into a single document, thus it is known as an uncodified constitution. This enables the constitution to be easily changed as no provisions are formally entrenched.
Judicial independence is protected by Singapore's Constitution, statutes such as the State Courts Act and Supreme Court of Judicature Act, and the common law. Independence of the judiciary is the principle that the judiciary should be separated from legislative and executive power, and shielded from inappropriate pressure from these branches of government, and from private or partisan interests. It is crucial as it serves as a foundation for the rule of law and democracy.
The Constitution of Kenya is the supreme law of the Republic of Kenya. There have been three significant versions of the constitution, with the most recent redraft being enabled in 2010. The constitution was presented to the Attorney General of Kenya on 7 April 2010, officially published on 6 May 2010, and was subjected to a referendum on 4 August 2010. The new Constitution was approved by 67% of Kenyan voters. The constitution was promulgated on 27 August 2010.
The Separation of powers in Singapore is governed by Constitution of the Republic of Singapore, which splits the power to govern the country between three branches of government – the parliament, which makes laws; the executive, which executes them; and the judiciary, which enforces them. Each branch, while wielding legitimate power and being protected from external influences, is subject to a system of checks and balances by the other branches to prevent abuse of power. This Westminster constitutional model was inherited from the British during Singapore's colonial years.
The judiciary of South Korea is the judicial branch (사법부) of South Korean central government, established by Chapter 5 and 6 of the Constitution of South Korea.
The complete independence of the courts of justice is particularly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority ... Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing..
As the partisan administration of law erodes rule of law, a central institutional requirement is an independent, accessible judiciary..