Judicial independence: The right of every citizen An independent and impartial judiciary is one of the cornerstones of democracy. The rule of law requires independent courts and tribunals to resolve disputes competently, independently and impartially. Judges and magistrates1 must decide matters before the minimum accordance with their assessment of the facts and their understanding of the law, free from any improper influences, inducements or pressures, direct or indirect, from any quarter, for whatever reason. Not only must individual judges be independent in their decision-making but the institution itself needs to be able to operate without its activities being influenced or curtailed by other organs of state. Judicial independence is not the right of individual judges but a constitutional right of every citizen. The UN Universal Declaration of Human Rights states in Article 10 that: ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal.’ Institutional independence The UN Basic Principles on the Independence of Judges2 states in Article 1 that: ‘The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country.’ Judicial independence is guaranteed in the constitutions of all Commonwealth countries and in the Commonwealth fundamental values, including the Commonwealth Charter. However, many governments still continue to treat the judiciary not as the third organ of state but as a ministerial department, subject to the government’s direction and will. In 2013 the United Nations Human Rights Council passed a resolution calling on: ‘All States to guarantee the independence of judges and lawyers and the objectivity and impartiality of prosecutors, as well as their ability to perform their functions accordingly, including by taking effective legislative, law enforcement and other appropriate measures that will enable them to carry out their professional functions without interference, harassment, threats or intimidation of any kind.’ Governments have tried to influence the appointment of judges (especially at the highest level). For the most part, the executive or parliament have been reluctant to delegate the power to remove judges to an independent judicial disciplinary commission. They continue to influence and control the judiciary through the control of budgets and the operations of the courts. While the judiciary should be accountable for the funding it spends, budgetary control has also been used in the power play between the three organs of state. The Commonwealth (Latimer House) Principles state that: ‘Adequate resources should be provided for the judicial system to operate effectively without any Commonwealth Governance 18 Handbook 2014/15 undue constraints which may hamper the independence sought.’ Suitable and sustainable funding should be provided to enable the judiciary to perform its functions to the highest of standards. In some Commonwealth jurisdictions, the judiciary has been made responsible for its own budget and finances. However, in most, control over the budget and finances remains in the hands of the executive, which has ultimate control over remuneration of judicial officers and court staff, and over the running of the courts, thus impacting on the good administration of justice.3 Appointment and removal Constitutional provisions cover the structure of the judiciary and set out the terms and conditions under which the judiciary operates. This includes provisions for the appointment and removal of the higher judiciary, although the constitution (or legislation) does not always clearly delineate the role of each organ of state in these processes. Many countries have moved towards a more transparent system for appointments and removals in line with the Latimer House Principles4, setting up independent commissions, though their composition may not be as non-partisan as they could be. In addition the legislature in some Commonwealth jurisdictions has recently sought vetting rights over judicial appointments and this adversely impacts on the independence of the judiciary and the separation of powers. These uncertainties of interpretation of constitutional provisions led the Commonwealth Lawyers Association (CLA), Commonwealth Legal Education Association (CLEA) and Commonwealth Magistrates’ and Judges’ Association (CMJA) to undertake a Commonwealth-wide analysis. Their report, Judicial Appointment Commissions: A Clause for Constitutions, was published in December 2013 and recommends an independent commission with little or no involvement of parliament or the executive.5 Constitutions provide for the removal of judges for misbehaviour, incapacity or inability to function. However, such documents do not always specify the criteria against which misbehaviour, inability or incapacity can be assessed, and thus these concepts remain prone to misinterpretation. Mechanisms are in place (e.g. the appointment of a tribunal, commission or committee) to investigate any allegations. However, governments have, in some cases, ignored the provisions of the constitution and proceeded to remove judges without following due process, or by interpreting their powers as having the authority to suspend, sack or impeach judges without providing the judge in question with an opportunity to ‘be fully informed of the charges, be represented at a hearing, to make full defence and to be judged by an impartial tribunal’6. Events in the Commonwealth have recently led the Commonwealth Secretariat’s Rule of Law Division to work on Karen Brewer
CEP template 2012
To see the actual publication please follow the link above