Independence of the judiciary
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Independence of the judiciary (also judicial independence) is the principle that the judiciary should be politically insulated from the legislative and the executive power. That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests.
Different nations 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. But they may have conflicts with republicanism and they could support it.
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, when the judiciary perceives that legislators are jeopardizing constitutional rights such as the rights of the accused.
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[edit] United Kingdom
In the United Kingdom and its predecessor states, judicial independence emerged slowly in the United Kingdom. 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.[1] 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.[2]
Under the unwritten 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.
[edit] United States
[edit] Federal courts
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 only vacate office upon death, resignation, or impeachment and removal from office by Congress; only 13 federal judges have ever been impeached
The President is free appoint 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."
[edit] 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.
Hybrid systems also exist, such as the method of appointment followed by periodic retention elections, or merit selection systems such as the Missouri Plan, Tennessee Plan, or other derivatives, which use a judicial nominating commission.
[edit] Current Proposals and Controversy in the U.S.
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The question of judicial independence is a current issue of significant debate within the U.S. political system, although arising under different labels and names.
There are current political campaigns to make judges more accountable for allegedly bad decisions, meaning those that allegedly do not follow laws passed by the legislature, procedural rules, or precedents of higher courts, or the failure of judges to avoid conflicts of interest and bias, or lack of judicial temperament by judges in how they treat litigants in their courtrooms, or criminal sentences seen by some as too lenient or too harsh.
Referenda have been placed on state ballots to make judges more accountable, such as the J.A.I.L. initiative in South Dakota, which was not approved but engendered and continues to engender significant debate and efforts to promote similar ballot initiatives in other States.
In response to these calls for change to judicial independence, opponents of such change argue for the central importance, in their view, of an independent judiciary immune from political interference in the outcome of court cases.
The 2000 case of Bush v. Gore, in which a majority of the Supreme Court, including some appointees of the first President Bush, over-ruled challenges to the election of the President 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.
Both sides of this debate refer to the doctrine of separation of powers, yet interpret this concept in directly opposing ways. On one side of this debate, separation of powers means that no one branch may act unilaterally, but power is divided between the Legislative, Judicial, and Executive Branches. That is, "checks and balances" should also apply to the Judicial Branch.
On the other side of this debate, separation of powers means that the Judiciary is independent and untouchable within the Judiciary's sphere. In this view, separation of powers requires that the Judiciary alone holds all powers relative to the Judicial function and the Legislative and Executive Branches may not interfere in any aspect of the Judicial Branch.
For example, the Florida Supreme Court maintains that only the Florida Supreme Court may license and regulate attorneys in Florida and set rules for the Florida courts. In other states, the power to regulate all professions -- including attorneys -- is held by the legislature although regulation of attorneys is delegated to the state Bar or state Supreme Court merely for convenience.
There are hybrid or compromise views as well. Current proposals by members of Congress such as Todd Akin and Trent Franks would require the immediate removal of judges for a failure to continue "during good behavior" as the Constitution provides, and would by statute define the meaning of "good behavior." This would result in the immediate removal of Federal judges for any misconduct without the need for impeachment.
[edit] 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 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
[edit] References
- ^ Justice Gerard La Forest, Provincial Judges Reference, Supreme Court of Canada, para. 305.
- ^ Justice Gerard La Forest, Provincial Judges Reference, para. 306.
