What is the significance of an independent judiciary

The responsibility of the judiciary to protect citizens against unlawful acts of government has thus increased, and with it the need for the judiciary to be independent of government. As well as in fact being independent in this way, it is of vital importance that judges are seen to be both independent and impartial. Justice must not only be done — it must be seen to be done. It was for this reason that the House of Lords in the Pinochet case in held that a decision it had given had to be set aside and the appeal before it heard again by a panel of different Law Lords.

It had come to light after the original decision that one of the Law Lords might have given an appearance that he was not independent and impartial because of a connection with a campaigning organisation which was involved in the case.

In those circumstances, and even though there was no suggestion that the Law Lord was not in fact independent or impartial, the decision could not stand. Justice demanded that the appeal be heard again before a panel of Law Lords who had and gave the appearance to reasonable well-informed observers that they were independent and impartial.

Whilst an independent and impartial judiciary is one of the cornerstones of a democracy, the practical ways in which this is given effect are often treated with suspicion.

For example, judges are given immunity from prosecution for any acts they carry out in performance of their judicial function.

They also benefit from immunity from being sued for defamation for the things they say about parties or witnesses in the course of hearing cases.

However, it is not right to say that Judges are above the law. Judges are subject to the law in the same way as any other citizen.

The Lord Chief Justice or Lord Chancellor may refer a judge to the Judicial Complaints Investigations Office in order to establish whether it would be appropriate to remove them from office in circumstances where they have been found to have committed a criminal offence.

Judicial independence does, however, mean that judges must be free to exercise their judicial powers without interference from litigants, the State, the media or powerful individuals or entities, such as large companies. This is an important principle because judges often decide matters between the citizen and the state and between citizens and powerful entities.

For example, it is clearly inappropriate for the judge in charge of a criminal trial against an individual citizen to be influenced by the state. It would be unacceptable for the judge to come under pressure to admit or not admit certain evidence, how to direct the jury, or to pass a particular sentence. Decisions must be made on the basis of the facts of the case and the law alone.

Judicial independence is important whether the judge is dealing with a civil or a criminal case. This requirement that judges be free from any improper influence also underpins the duty placed on them to declare personal interests in any case before it starts, to ensure that there is neither any bias or partiality, or any appearance of such.

A practical example of the importance of judicial independence is where a high profile matter, which has generated a great deal of media interest comes before the court. Such matters range from the criminal trial of a person accused of a shocking murder, the divorce of celebrities, and challenges to the legality of government policy, for example the availability of a new and expensive drug to NHS patients.

In the 24 hour media age in which we live, it stands to reason that the judge hearing the case will often be under intense scrutiny, with decisions open to intense debate.

Not only has this dimension of public power escaped judicial control, by-and-large, but, more disturbingly, it has taken command of the very sources of the momentum of public institutions, and has had impacts even upon the character of the judiciary itself. We are concerned with the creation of leadership, in relation to Legislature-cum-Executive, and in relation to Judiciary. Leadership of the Executive Branch has emerged in tandem with the process of electing a Legislative Branch.

But, electing a Legislative Branch is a function dominated by the partisan interests which have sprung up, by their unregulated dynamics, from the grassroots. The partisan interests that brought forth the parliamentarians, a number of whom then graduated to the? Then, how is the judicial cadre brought into being?

Not directly from the grassroots. Indeed, the judicial calling is more elitist; it takes considerable learning and specialisation. So the judicial cadre has been sourced by somebody; and the partisan stand characterising those in the? This carries a danger for the cherished principle, independence of the judiciary.

Is the judicial cadre likely to want to do one good turn to the partisan interests that selected it? If yes, then judicial independence will have suffered a set-back? Developed and Developing-Country Scenarios. Partisanship, in relation to the constitutional set-up, means something different in the developed, industrialised nations, from what it means in the relatively-new States of Sub-Saharan Africa. The following passage in an earlier work 8 will shed light on this point:.

The prevailing philosophy in Western countries is that political parties? This may be regarded as a fundamental premise to the development of governmental institutions. Upon it, structures have been evolved which take the form of legal phenomena. Thus one perceives, even at this preliminary level, that the party system forms part of the fundamental assumptions that are attached to the constitutional and legal set-up.?

Partisanship in the industrialised and urbanised countries, is essentially a term that defines differences sparked by social and economic forces, by prosperity or lack of it. But in the developing countries where there are many more factors of social differentiation, partisanship has numerous racial, ethnic, cultural, religious, familial, generational, gender, inspirational etc. The partisanship at the? How far will the partisanship of the Western countries impact upon the prevailing notion of independence of the judiciary?

And what would be the position in the countries of Africa? This will remain a matter for conjecture. The political challenge to judicial independence aforementioned is to be found in all countries, but the Western countries, with their more structural and more institutional foundation to partisanship at the?

In those countries, judicial independence is perceived as a vital pillar in the constitutional order; and so, undermining this principle will raise a political question which, in the electoral democracies of the countries concerned, may work to the detriment of those who contest its status, as a safeguard for the people?

Such a position may be gleaned from works of scholarship. Dias in his classic work, Jurisprudence 10 , remarks:. Dias further observers 11 :. The success or failure of judicial control of the abuse of power, whatever form such control may assume, depends on the judges being independent of those wielding the power.

Independence means far more than immunity from interference; it means that they are free to bring their own sense of values to bear in considering legislation and do not simply reflect the values of government. For there can be no protection against abuse of power, even when safeguards are enshrined in the Constitution, if the judges who have to interpret these whenever the government is challenged are only puppets of the government?

The learned scholar squarely touches on the dangers to constitutional principles, where the judges are beholden to the? The notion that the third arm of the constitution, the judiciary, should be entirely separate from both the legislative and the executive powers, seemed Two principles could in this instance be invoked, each of which might be regarded as entitled to a good deal of weight.

In the first place there is the question of the independence of the judiciary. If the laws are to be fairly interpreted and impartially applied it is obviously important that the judiciary should enjoy an independent status and be free from the political pressures engendered by association with either the executive or even the legislature itself, dominated as the latter is likely to be by the divisions of party politics?

And Lord Denning reposes his trust in the judge, so long as the judge functions independently:. With judicial independence thus perceived, and with the obvious awareness of the partisan threats to the hallowed principle, the Western countries have adopted certain safeguards, to protect it from compromises emanating from the? Executive Stall?. These include? Lord Lloyd of Hampstead has considered the application of these several criteria, in relation to his country, Great Britain.

He notes as follows, and in relation to each of the foregoing five points:. The question of promotion is almost as important as that of initial appointments in regard to judicial independence. For if the judiciary has to look for its future prospects to the politicians they may be unwilling to incur executive displeasure and so mar the chances of later promotion, even though they are secure in their posts.

In England this difficulty has been largely overcome by avoiding too hierarchical a pattern in regard to the higher judiciary.

A certain uniformity of status has been retained in regard to all the higher judiciary from the High Court level to the House of Lords, particularly by keeping salaries on almost the same level throughout and by avoiding any form of promotion on the basis of seniority. This system has been greatly aided by the historical antecedents of the English judiciary and its exceptionally strong traditions and long-established status?

The Challenges of the African Context. It is quite apparent, from the foregoing account, that judicial independence will remain a more distant ideal in the African countries, than is the case in the economically-advanced countries of the West. Although it is possible that participants at this conference from different African countries may present a picture showing the status of judicial independence in their own countries to be rosier than it is elsewhere, such a depiction is apt to miss the fundamental point: in virtually every one of the African countries, the very diverse social condition greatly complicates the political profile, and brings forth a much varied scheme of partisanship at the?

Executive Stall;? For, each of the many partisan elements will be seeking to influence what goes on at the judicial plane; the ethos which is supportive of the norms of judicial independence will be largely enfeebled; informed and diverse consultation before the recruitment of the judicial cadre is likely to be minimal; principled regulation of terms of service, and of promotion, may also be lacking. So, the special socio-political factors which, in the Western society, sustain the commitment to the principle of judicial independence, may not comfortably co-exist with the typical African political condition.

Yet, at international deliberations fora, such as the multi-lateral treaty-making events, and at international bodies such as the International Commission of Jurists, the typical African country will stand with other States, and extol the virtues of judicial independence. They should be taken into account by Governments and be brought to the attention of judges, lawyers, members of the executive and the legislature, and the public in general.

The Bangalore Principles are the result of extensive consultations involving Chief Justices and senior judges from different States, within the Judicial Integrity Group, with the purpose of considering ways of strengthening judicial institutions and promoting judicial independence and accountability.

The principles were developed through a process of drawing information on the concept of judicial independence from different codes of judicial conduct, as well as other documents elaborated at the international level. In addition to the authoritative guidance provided at the international level, various judicial cooperation networks have been established to support international cooperation in criminal matters.

In some regions, these networks play quite an active role. A pioneering network of this kind, The European Judicial Network EJN comprises national contact points from EU Member States to facilitate judicial cooperation in criminal matters, particularly with respect to serious crime. In addition to the information exchange and cooperative functions of the network, the EJN also organizes training sessions, with a view to fostering improved judicial cooperation more generally.

In Latin America, Presidents and Judges of Constitutional Courts gathered in Brazil, in , to discuss judicial independence, ethics training, anti-corruption capacity building, transparency of decisions and court procedures, conflicts of interest and financial disclosure, financial autonomy of courts, accountability and public confidence and trust in the judiciary. The meeting concluded with the adoption of the Brasilia Declaration , in which participants expressed their commitment to judicial ethics, human rights, transparency, tackling corruption and promoting access to justice see also UNODC , n.

Doha Declaration. Education for Justice. What is Good Governance? Contemporary issues relating to conditions conducive both to the spread of terrorism and the rule of law Topic 2. Contemporary issues relating to the right to life Topic 3. Contemporary issues relating to foreign terrorist fighters Topic 4.

Definition of Crime Prevention 2. Key Crime Prevention Typologies 2. Crime Problem-Solving Approaches 4. Identifying the Need for Legal Aid 3. Models for Delivering Legal Aid Services 7. Roles and Responsibilities of Legal Aid Providers 8. Legal Framework 3. Use of Firearms 5.

Protection of Especially Vulnerable Groups 7. Aims and Significance of Alternatives to Imprisonment 2. Justifying Punishment in the Community 3. Pretrial Alternatives 4. Post Trial Alternatives 5. Concept, Values and Origin of Restorative Justice 2. Overview of Restorative Justice Processes 3. How Cost Effective is Restorative Justice?

Vulnerabilities of Girls in Conflict with the Law 3. Ending Violence against Women 2. Human Rights Approaches to Violence against Women 3. Who Has Rights in this Situation? What about the Men? Understanding the Concept of Victims of Crime 2. Impact of Crime, including Trauma 3.

Right of Victims to Adequate Response to their Needs 4. Collecting Victim Data 5. Victims and their Participation in Criminal Justice Process 6. Outlook on Current Developments Regarding Victims 8. The Many Forms of Violence against Children 2. The Impact of Violence on Children 3. Improving the Prevention of Violence against Children 5.

The Role of the Justice System 2. Justice for Children 4. Justice for Children in Conflict with the Law 5. Institutional and Functional Role of Prosecutors 2c.

Share this page Toggle Dropdown. Add selection. Create your own course:. Judicial independence General issues. Judicial independence as a fundamental value of the rule of law and of constitutionalism The main factors aimed at securing judicial independence Topic 2.

The role of public prosecutors General issues. Public prosecutors as the 'gate keepers' of criminal justice. The institutional and functional role of prosecutors: different models and practices: Other factors affecting the role of prosecutors: appointment, tenure and conduct. References Exercises Possible class structure Core reading Advanced reading Student assessment Additional teaching tools First published in February This module is a resource for lecturers Topic one - Judicial independence General issues.

Judicial independence as a fundamental value of the rule of law and of constitutionalism This section illustrates the crucial role of the judiciary in society and the importance of judicial independence as a necessary precondition to judges properly performing their function.

The role of the judiciary in society What is the role of the judiciary in society, and in justice processes? The academic literature identifies the essential features that distinguish the judicial process from legislative and administrative powers: The judicial process is not initiated by the court on its own motion, but it needs a claimant, a plaintiff for example, a private party or the public prosecutor ; Audiatur et altera pars.

All the parties are given a fair opportunity to be heard by an impartial judge, either personally or through their representatives; Nemo iudex in causa sua.

The judge cannot have a personal interest in the case and must not be subject to partial pressure Cappelletti, , p. The concepts of judicial independence and impartiality As mentioned above, judicial independence and impartiality are the most important sources of legitimacy and authority for judges and, consequently, of public trust in judicial institutions.

Key debate: Gender-sensitive training for judges Education is key to the exercise of the judicial function without bias or discrimination. For example: "Discriminatory practices on the grounds of gender preponderate in the performance of judicial duties in Uganda Women's Access to Justice , in which Justice Judith Jones of the Supreme Court in Trinidad and Tobago talks about ways to improve public confidence in the judiciary for domestic violence survivors.

Gender Related Issues in the Judiciary , in which Justice Shiranee Tilakawardane, a Supreme Court Justice in Sri Lanka, is interviewed by the Global Judicial Integrity Network on gender-related issues in the judiciary, including; sextortion, sexual harassment, and the under-representation of women.