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AN ESSAY ON INDEPENDENCE OF THE JUDICIARY: INDEPENDENCE FROM WHAT AND WHY
Abstract
Probably no topic is more frequently raised at judicial confer-ences throughout the world than independence of the judiciary, and properly so. But why is judicial independence important? In-dependence of the judiciary is not itself an important governance value. A judge may believe in the doctrine due to status or protec-tion of profession. But others will embrace the principle only when its reality leads to ensuring fundamental interests. Thus, judicial independence is, in the main, significant to the extent it provides the citizens with certain values they might not enjoy but for inde-pendence of the judiciary. Thus, to justify judicial independence, there must be an em-phasis on how the doctrine protects values held dear by society. For example, it has been asserted that neither justice nor human rights guaranteed by the Constitution become secure for the people with-out a free and independent judiciary. This we need to examine. Our investigation is aided by understanding that judicial indepen-dence is an evolving doctrine. 1 Societal need appears to be the moving force in development of the doctrine as part of governance. 2 I. Judicial independence starts with an established judicial re-view, which allows the judiciary the opportunity to protect funda-mental interests. That is the essential foundation. Unfortunately, however, other factors that restrain the achievement of justice are not solvable through the structuring of the judiciary itself. It is one thing to determine what is an efficient, effective, and desirable means of judicial review, and quite another to put it into practice. Political considerations often impose limitations on the substantive * Senior Judge, United States Court of Appeals for the Ninth Circuit. The ideas expressed here are of the author. He has neither sought nor received the concurrence of his court. 1. J. Clifford Wallace, Judicial Administration in a System of Independents: A Tribe with Only Chiefs, 1978 BYU L. REV. 39, 40–43. 2. See id.
... The independence of the judiciary from political pressures is an essential aspect of justice at any level. 159 It is advisable to scrap the proposal of statutory constitution of Environmental Courts in the present form. The more appropriate way is to constitute them in form of a specialised division of the existing High Courts. ...
The Indian experience in environmental governance, involving easy access to justice through Public Interest Litigation, demonstrates that 'independent' and 'powerful' superior courts are indispensable for securing environmental justice. However, the superior courts are unable to satisfactorily resolve environmental disputes involving scientific and technical questions due to lack of permanent expert panels to assist them. Thus, the Law Commission of India has mooted the idea of specialised Environmental (Green) Courts in its 186th Report which will be structurally modeled on similar courts functioning in Australia and New Zealand. While recognizing the significance of a specialised judiciary, this paper criticizes the proposal of the Law Commission as a half hearted attempt in this direction. The proposed structure is utterly unimpressive as it purports to withdraw environmental disputes from the jurisdiction of superior courts while entrusting them to weak Environmental Courts which appear vulnerable to substantial executive interference. Furthermore, the proposed courts have been weaned of the wide powers which the superior courts were hitherto exercising in environmental matters. Thus, as an alternative, it is proposed that a more pragmatic course will be to create specialist divisions within the existing Indian High Courts to effectively address the practical problems involved in environmental adjudication.
Purpose: Since the inception of the notions of separation of powers and judicial independence, different judicial systems across the globe have devised various models of judicial appointments to meet the standards of the concepts of separation of powers and judicial independence. Methodology: In general, three moles of judicial appointments namely the politicised, the judicialised and the institutionalised models have been used in different jurisdictions. Findings: In Pakistan, since its independence, all these three models have been practiced, however none of these could help to achieve the required standards of judicial independence. The causes of failure perhaps rooted in the attitudes and intentions of the constitutional players rather than internal flaws of these three models. Implications: This article analyses the pros and cons of these models of judicial appointments and the causes of failure of these models in provision of independent and trustworthy judiciary in Pakistan and then proposes a better model with further improvements for judicial appointments in Pakistan.
The article takes up the difficult problem of the so-called disobedience of judges against the background of the experiences of the Polish departure from constitutional democracy in 2015–2020. The special role and responsibility of a judge in the state imposes restrictions on her freedom of opinion in the public sphere. Openly manifesting opposition to government policy, which in the case of an ordinary citizen is only the implementation of human rights and freedoms, may be described as controversial and contrary to applicable ethical regulations. The main thesis of this paper is the assertion that although judges who act as impartial arbitrators in disputes should generally refrain from ostentatiously opposing the actions of political authorities, they are not deprived of the possibility of protest. Also in the exercise of office, and not outside the sphere of their duties, judges should take into account overriding moral values that should be implemented by the legal order, and not the values or declarations guiding the government policies. The integrity of the judge, which prescribes restraint in statements and actions in the public sphere, as well as the care for the dignity of the office held, should not be confused with absolute subordination to the legislature or the executive, even if the judge is obliged to apply the law. The traditional attitude of the members of the judiciary, consisting in focusing only on the application of the law in individual cases and the lack of any political involvement, is being reviewed in the face of the spread of majoritarianism and the law abuse as normal techniques of exercising public authority. The disobedience of judges—although difficult to defend at first sight—may seem to be the only possible way to draw public attention to the corruption of the state system. The ‘disobediant’ judges can even be assigned the role of ‘whistleblowers’, which should help to ease their legal liability or their future rehabilitation.
Independent and impartial judiciary is the sine qua non in the democratic and welfare society that foster fair adjudication, promote the rule of law, guarantee fundamental human rights of citizens, abolish arbitrary power of government, deterrent crime in the society, and secure economic expansion and investments. Construction and sustaining robust independent judiciary seems a culture of civilized nations. Under the strong independent judiciary, judges can maintain fair dispute resolution out of fear, favor or undue influence from public or private sectors. Indeed, independent and impartial judiciary only can make check and balances among the government organs and can control the influential person to law and order. In Bangladesh, judicial independence is unconditionally required for effective and efficient functionaries of court. This article sought to address the significance of the independent judiciary in Bangladesh with the interdisciplinary context of law and economics. The study signifies on impartial adjudication for deterrent crime, the establishment of peace and order, control corruption, and healthy economic growth in the society.
A Background Study for Addis Ababa Chamber of Commerce Five Year Strategy Plan, 2008
A struggle over the norms and boundaries of federal judicial authority is ongoing, both within the United States Supreme Court and between the Court and Congress. That debate is taking place not only in the Court's high-profile constitutional docket but in ordinary cases and in work other than adjudication. The five-person majority that has become famous for its jurisprudence on the Commerce Clause, the Fourteenth Amendment, and sovereign immunity has also revised the scope of federal equitable and common law powers. The emerging legal rules stem from cases - such as Grupo Mexicano de Desarrollo, S.A., v. Alliance Bond Fund, Inc. and Great-West Life & Annuity Insurance Co. v. Knudson - that may not come trippingly off the constitutional scholar's tongue but must be understood as working in tandem with the majority's restrictions on the power of Congress to develop new federal rights. These holdings instruct federal judges not to craft remedies without express congressional permission, and, when permission has been granted, to read it narrowly. Moreover, through collective action unprecedented in the American experience, the Rehnquist Judiciary is attempting to convince Congress not to grant such permission. The Article III judiciary has become increasingly active in Congress before legislation is enacted - opining to Congress and the public about which litigants ought to be able to bring substantive claims to the federal courts. Eighty years ago, Congress chartered a conference of circuit judges to meet under the leadership of the Chief Justice and - "in the interest of uniformity and expedition of business" - to "survey . . . the condition of business" of the federal courts. Thus began an entity, novel for the United States, which provided a means for judges to coordinate and collaborate. As I detail in a brief history below, during its first decades the Conference did not use its collective voice to comment on which litigants merited access to federal courts. Thereafter, the Conference occasionally advised against federal court remediation for certain kinds of cases. A different posture has been adopted under the current Chief Justice. The Judicial Conference has proposed that Congress hold a general presumption against creating new rights if enforced through federal courts. In the mid-1990s, through its first-ever Long Range Plan, the Conference offered a vision of the appropriate allocation of power between state and federal systems and of the appropriate size and shape of the federal courts. The Conference made some ninety recommendations, including this presumption against federal remediation. The approach of the Long Range Plan is paralleled by commentary by the current Chief Justice, who has regularly used annual "state of the judiciary" addresses to criticize congressional decisions to empower particular kinds of litigants to appear in federal courts. Examining the Rehnquist Judiciary's adjudication and advocacy together reveals a particular, and in some ways contradictory, delineation of the role for the federal judiciary: at once incompetent to help ordinary litigants who seek small-scale remediation through adjudication predicated on fact-filled records subject to appellate review, yet at the same time competent to use a collective voice to advise Congress on the shape of the rights that "the people" ought to have. These activities also illuminate the Rehnquist Judiciary's view of congressional capacities. Through constitutional adjudication, the majority has disabled Congress from certain forms of generativity and innovation. Through statutory interpretations and judicial policy prescriptions, the majority has discouraged Congress from looking to federal courts as a means of enforcing national agendas. While others have identified the majority as claiming its supremacy and assessed its political vision and its interpretative norms, here I bring into focus the effects of the Rehnquist Judiciary on the daily experiences of lower tier judges, litigants, and members of Congress. The work of both judging and governing at the national level becomes impoverished.
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