Information about Judicial Independence

Judicial independence is the doctrine that decisions of the judiciary should be impartial and not subject to influence from the other branches of government or from private or political interests. In most cases, judicial independence is secured by giving judges long, and sometimes lifetime, tenure and making them not easily removable.

History in English legal system

Judicial independence emerged slowly in England, and later the United Kingdom. Under the Norman monarchy, 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.^[1] Nevertheless, kings could still influence courts, and could 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. Thus, King William III finally approved the Act of Settlement 1701, which established tenure for judges unless Parliament removed them.^[2]

In the United Kingdom

In the United Kingdom, this aspect of the separation of powers is less clear-cut than in the US. The key factors that help to ensure judicial independence in the British system are:

Selection In order to try and promote the independence of the judiciary, the selection process is designed to minimise political interference. The process focuses on senior members of the judiciary rather than on politicians.

Pay and rewards 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.

Regulation The legal profession is a self regulating profession, i.e. it is responsible for its own professional standards and for dealing with those who fall short. In this case, the bodies are the Bar Council and the Law Society.

Security of tenure As long as judges hold their positions in "good order", they remain in post until they wish to retire or until they reach 70.

Political conventions There are two important conventions which help to preserve judicial independence.

• Parliament does not comment on the cases which are before the court
• Under a principle known as "Parliamentary Privilege", Members of Parliament are protected from prosecution in certain circumstances by the court.

In the United States

There are two types of Judicial independence. Institutional independence and decisional independence. Institutional indepencence 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 things sway their decisions.

The federal government of the United States of America, for example, gives all members of the Supreme Court, and all members of district courts and appeals courts, lifetime tenure. Other federal judges get substantial terms, such as fifteen years for judges of bankruptcy courts.

Another prong of judicial independence is proper judicial selection. The American Bar Association, which advocates executive appointments of judges who have been cleared by screening committees (so-called "merit selection"), is at odds with many state legislatures which prefer election by the general public. The American Bar Association, and state bar associations generally, view judicial elections as rewarding political skills rather than legal skills.

The 2000 case of Bush v. Gore, in which the appointees of the first President Bush cast decisive votes that helped ensure the election of the second President Bush, thereby overruling the contrary decision reached by the Florida Supreme Court, whose members had all been appointed by Democratic governors, is seen by many as reinforcing the need for judicial independence. This case has focused increased attention on judicial outcomes as opposed to the traditional focus on judicial qualifications.

In 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 1985 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.

References