Judicial independence is the concept that the judiciary should be independent from the other branches of government, meaning that courts should not be subject to improper influence from those branches or from private or partisan interests. Judicial independence is an important component of the separation of powers.
Different countries deal with the idea of judicial independence through different means of judicial selection, that is, choosing judges. One method seen as promoting judicial independence is by granting life tenure or long tenure for judges, as it would ideally free 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.
Foundation of rule of law
Judicial independence serves as a safeguard for rights and privileges from a limited government and prevents executive and legislative encroachment upon those rights.. 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 their officers are free from inappropriate intervention in judicial affairs. With this independence, the judiciary can safeguard people's rights and freedoms which ensure equal protection for all..
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, judicial independence is a pillar of economic growth, as multinational businesses and investors have confidence to invest in the economy of a nation which has a strong and stable judiciary that is insulated from interference. The judiciary's role in deciding the validity of presidential and parliamentary elections also necessitates judicial independence.Constitution, Art. 93A, and the , ss. 71–80; and the , ss. 92–101.
Economic effects 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.Peter Barenboim, Defining the rules, The European Lawyer, Issue 90, October 2009
In some countries, the constitution also prohibits the legislative branch from reducing salaries of sitting judges.
Judicial misconduct
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. 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.
Judicial supremacy could potentially promote an elitist autocracy. Judicial aggrandizement describes the process when judges displace or subordinate the authority of elected branches, which undermines political legitimacy and can facilitate democratic backsliding.
Judicial accountability 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 indirectly elected judges are not directly democratically accountable to the people, the key is for judges to achieve equilibrium between accountability and independence to ensure that justice is upheld. Judges are directly elected in some cases, including Mexican judicial elections, Bolivian judicial election and . Judicial elections can increase political polarization. Judicial retention elections were found to have an impact on the accountability of judges.
Internal judicial independence Internal judicial independence is the autonomy of individual judges from undue influence within the judiciary itself—such as pressure from court leadership or senior colleagues over case assignment, panel composition, promotions, transfers, discipline, or informal guidance—so that adjudication rests solely on law and facts rather than intra-branch hierarchies.
In the Czech Republic, for example, scholarship has described how informal practices by senior judges (e.g., in appointments, panel design, and case assignment) may enhance expertise and uniformity yet blur internal checks, coining the term “superjudges.”
Development
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.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 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.
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.See generally Shimon Shetreet book, Judges on Trial. 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,See Baron de Montesquieu, The Spirit of the Laws (Hafner 1949) (Thomas Nugent, trans). 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.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.” Other common law countries, including Canada, Australia, and India, also adopted the British model of judicial independence.Shetreet, Judicial Independence. 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).
In recent decades the third phase of judicial independence has been evident in the UK,UK Human Rights Act - 1998 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.Human Rights Act (1998), ch 42 (UK), available online at <> (visited Mar 27, 2009).
Where British national law had previously impacted the international development of judicial independence, the British Constitutional Reform Act 2005Constitutional 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 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.Anthony Seldon, Ed., Blair's Britain, 1997-2007 (Cambridge University Press: 2007), at 294 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.Robert Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800-1976 (University of North Carolina Press, 1978), at 6 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. The creation of the Supreme Court was important, for it finally separated the highest court of appeal from the House of Lords.Anthony Seldon, Ed., Blair's Britain, 1997-2007 (Cambridge University Press: 2007), at 113