Analysis of the Concept Of Judicial Independence
Shimon Shetreet and Jules Deschenes,
Judicial Independence: The Contemporary Debate
(1985 Martinus Nijhoff).
The judiciary has developed from a dispute-resolution mechanism, to a significant social institution with an important constitutional role which participates along with other institutions in shaping the life of its community. Social, political and economic changes, in recent times, in most countries, have confronted the courts and judges with new challenges and new problems.
The centralization of the responsibility and supervision of court administration and judicial administration has raised the issue of the relationship between the judiciary and the executive, and made it necessary to examine and delineate the boundaries of the scope of executive control on judges, courts and judicial administration, and court financing. It was also necessary to review the rules, traditions, and practices governing the conduct of judges off the bench, in the various areas of activities.
A modern conception of judicial independence cannot be confined to the individual judge and to his substantive and personal independence, but must include collective independence of the judiciary as a whole. The concept of collective judicial independence may require a greater measure of judicial participation in the central administration of the courts including the preparation of budgets for the courts, and depending on one's view of the nature of judicial independence, the extent of judicial participation may range from consultation, joint responsibility with the executive, or exclusive judicial responsibility (Ch. 33).
Shimon Shetreet and Christopher Forsyth
The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges
Chapter 3: The Failure of Institutions: The South African Judicial Service Commission and the Hlophe Saga
Professor Christopher Forsyth
Professor Marcel Storme
Prof. Dr. H.C. Walter Rechberger
Outline of the New Delhi Standards
A) Personal and Substantive Independence
The New Delhi standards are based on the conception that the independence of the judiciary carries two meanings: the independence of the individual judges, and the independence of the judiciary as a body. The independence of the individual judge is comprised of two essential elements; the substantive independence and the personal independence. Substantive independence means that in the making of judicial decision and exercising other official duties, individual judges are subject to no other authority but the law.
Personal independence means that the judicial terms of office and tenure are adequately secured. Personal independence is secured by judicial appointment during good behaviour terminated at retirement age, and by safeguarding judicial remuneration. Thus, executive control over terms of service of the judges, such as remuneration, pensions, or travel allowances, is inconsistent with the concept of judicial independence. Still much less acceptable is any executive control over case assignment, court scheduling, or moving judges from one court to another or from one locality to another.2
B) Judicial Conduct
Independence of the judiciary implies not only that a judge should be free from executive or legislative encroachment and from political pressures and entanglements, but also that he should be removed from financial or business entanglement likely to affect, or rather to seem to affect, him in the exercise of his judicial functions. The duties of the judge as to the standards of his conduct are detailed in Standards 36-45.3 The Standards are aimed at removing judges from political and business entanglements and from controversies or improprieties. As to judges and the Press, New Delhi Standards 33-35 allow for interviews to the Press, subject to the duty to preserve judicial dignity.
C) Collective Independence
A modern conception of judicial independence cannot be confined to the individual judge and to his substantive and personal independence, but must include collective independence of the judiciary as a whole.4 The concept of collective judicial independence requires a greater measure of judicial participation in the central administration of the courts, including the preparation of budgets for the courts. New Delhi Standard 9 calls for exclusive judicial responsibility for judicial administration on the central level, or at least joint responsibility with the Executive. The Montreal Declaration provides that the main responsibility for court administration shall vest in the judiciary.5
The conception of personal independence and substantive independence of the individual judges is universally recognized by law and by legal writers. However, the concept of collective independence of the judiciary which this writer has advocated in recent years6 is not yet well established.
The significance of the New Delhi Standards, and following them, the Montreal Declaration, was the recognition of the concept of collective independence of the judiciary, which calls for greater administrative independence of the judiciary in matters of central court administration including the participation in the formulation of the courts' budgets.7 One of the important achievements of the New Delhi Standards and the Montreal Declaration was the emphasis on this most significant conceptual aspect of the principle of judicial independence in modern society.
D) Internal Independence
Another aspect of judicial independence which has not attracted sufficient attention is the internal independence of the judiciary. That is the independence of a judge from his judicial superiors and colleagues. This also transcends both the substantive and personal independence of the judge vis-a-vis his colleagues and superiors. New Delhi Standard 46 stresses this point; and, in the commentary for this New Delhi Standard, we recommend that separate and dissenting opinions be permissible in order to encourage internal judicial independence.8 In this context it should be noted that New Delhi Standard 11 calls for a division of work among judges according to a pre¬determined plan, to be conducted by the head of the Court according to clearly defined rules. This Standard generally accepts the civil law concept of natural judge. (Gesetzlicher Richter).
E) Judges and the Executive
The protection of judicial terms of service from Executive interference is attained by the Standards in many ways. Executive participation in disciplinary procedures for judges is limited to referring or initiating complaints. The Executive is excluded from adjudication of such complaints. (Standard 4). The
New Delhi Standards call for judicial removal by a judicial tribunal or by the legislation upon a recommendation of a judicial tribunal.9
As to judicial appointments, New Delhi Standard 3 calls for appointment by a predominantly judicial body, but allows the continuation of judicial appointment by non-judicial bodies, in countries, where by long historic tradition, such a practice operates satisfactorily. 10
The New Delhi Standards exclude the Executive from involvement in judicial matters and matters concerning judges (Standard 5), and vest the judiciary with the responsibility for such ,matters (Standard 801 Thus the power to transfer a judge should be vested in a judicial authority (Standard 12),12 and the execution process is put under judicial supervision (Standard 7).13
The Standards call for security of judicial remuneration and provision of adequate judicial salaries by regular and timely pay increases (Standard 14).14 They prohibit a decrease of judicial salaries which is not part of an overall economic measure (Standard 15).15 One of the most pressing problems of the Court system in recent times is the limited resource. Standard 13 responds to this issue and imposes on the relevant government a duty, to adequately finance the Court Services.16
The Standards impose on ministers a duty to refrain from adverse statements on judges (Standard 16), and call for cautious exercise of the power of pardon (Standard 1707
Against the background of incidents of closing down courts, and frustrating of judicial decisions by Executive action, Standard 18 prohibits Executive preemption or frustration of judicial resolution of cases,18 and provides that the Executive shall not have the power to close down or suspend the operation of the court system at any level. 19
F) Security of Judicial Tenure
Probationary appointments are considered inconsistent with judicial independence, except for legal systems where judges are appointed without prior practical experience (Standard 23): Temporary appointments of judges are also rejected by the Standards, except where they exist by long historic, democratic tradition.20 Part time judges can only be appointed, subject to proper safeguards.
Detailed principles are set down in Standards 27-32 concerning the procedure and the grounds for judicial discipline and removal.21 The Standards call for a judicial procedure and a judicial tribunal for removal or discipline of judges. In cases of Legislative removal, the Standards call for a recommendation by a judicial tribunal.
G) The Legislature and Judges
The Standards recognise the problems emanating from adverse Legislative interference with judicial terms of office and judicial adjudication. Standard 19 prohibits retroactive legislative reversal of specific decisions.22 Standard 20 qualifies the application of legislation, changing terms of judicial office or abolishing courts to future holders of office,23 and not to present judges serving at the time of the passage of the legislation.24
H) Standards of Judicial Selection
Standard 26 provides that selection of judges should be based on merit. I call your attention to the commentary on this standard, where it is stated that the selection process of judges should take into account the fair representation on the bench of the various social classes, ethnic groups, geographical regions and ideological inclinations, so as to insure equality of access to judicial office, and a broad spectrum of community attitudes and feelings among the persons holding judicial office. This principle is expressly provided in the Montreal Declaration which requires that "the process and standards of judicial selection shall give due consideration to ensuring a fair reflection by the judiciary of the society in all its aspects" (Art. 2.13).
In conclusion, it is important to stress that the confirmation of the Jerusalem Approved Standards in New Delhi by the IBA Convention was a significant step in the improvement of the administration of justice and the better protection of human rights in our world today, and so was the confirmation of the Universal Declaration of the Independence of Justice.
The Mt. Scopus Standards 1-3.6, 9
1. THE SIGNIFICANCE OF THE INDEPENDENCE OF THE JUDICIARY
1.1. An independent and impartial judiciary is an institution of the highest value in every society and an essential pillar of liberty and the rule of law.
1.2. The objectives and functions of the judiciary shall include:
18.104.22.168. To resolve disputes and to administer the law impartially between persons and between persons and public authorities;
22.214.171.124. To promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and
126.96.36.199. To ensure that all people are able to live securely under the rule of law.
2. THE JUDICIARY AND THE EXECUTIVE
2.1. The Judiciary as a whole shall be independent.
2.2. Each judge shall enjoy both personal independence and substantive independence:
2.2.1. Personal independence means that the terms and conditions of judicial service are adequately secured by law so as to ensure that individual judges are not subject to executive control; and
2.2.2. Substantive independence means that in the discharge of his judicial function, a judge is subject to nothing but the law and the commands of his conscience.
2.3. The Judiciary as a whole shall enjoy collective independence and autonomy vis-à-vis the Executive.
2.4. Judicial appointments and promotions by the Executive are not inconsistent with judicial independence as long as they are in accordance with Principles 4.
2.5. No executive decree shall reverse specific court decisions, or change the composition of the court in order to affect its decision-making.
2.6. The Executive may only participate in the discipline of judges by referring complaints against judges, or by the initiation of disciplinary proceedings, but not by the adjudication of such matters.
2.7. The power to discipline or remove a judge must be vested in an institution which is independent of the Executive.
2.8. The power of removal of a judge shall preferably be vested in a judicial tribunal.
2.9. The Executive shall not have control over judicial functions.
2.10. Rules of procedure and practice shall be made by legislation or by the Judiciary in cooperation with the legal profession, subject to parliamentary approval.
2.11. The state shall have a duty to provide for the execution of judgments of the Court. The Judiciary shall exercise supervision over the execution process.
2.12. Judicial matters are exclusively within the responsibility of the Judiciary, both in central judicial administration and in court level judicial administration.
2.13. The central responsibility for judicial administration shall preferably be vested in the Judiciary or jointly in the Judiciary and the Executive.
2.14. The principle of democratic accountability should be respected and therefore it is legitimate for the legislature to play a role in judicial appointments and central administration of justice provided that due consideration is given to the principle of judicial independence.
2.15. The process and standards of judicial selection shall give due consideration to the principle of fair reflection by the judiciary of the society in all its aspects.
2.15.1. Taking into consideration the principle of fair reflection by the judiciary of the society in all its aspects, in the selection of judges, there shall be no discrimination on the grounds of race, colour, gender, language, religion, national or social origin, property, birth or status, subject however to citizenship requirements. .
2.16. Candidates for judicial office shall be individuals of integrity and ability, well- trained in the law. They shall have equality of access to judicial office.
2.17. It is the duty of the state to provide adequate financial resources to allow for the due administration of justice.
2.18. Division of work among judges should ordinarily be done under a predetermined plan, which can be changed in certain clearly defined circumstances.
2.18.1. In countries where the power of division of judicial work is vested in the chief justice, it is not considered inconsistent with judicial independence to accord to the chief justice the power to change the predetermined plan for sound reasons, preferably in consultation with the senior judges when practicable.
2.18.2. Subject to 2.18.1, the exclusive responsibility for case assignment should be vested in a responsible judge, preferably the President of the Court.
2.19. The power to transfer a judge from one court to another shall be vested in a judicial authority according to grounds provided by law and preferably shall be subject to the judge’s consent, such consent not to be unreasonably withheld.
2.20. Judicial salaries and pensions shall be adequate at all times, fixed by law, and should be periodically reviewed independently of Executive control
2.21. The position of the judges, their independence, their security of tenure, and their adequate remuneration shall be entrenched constitutionally or secured by law.
2.22. Judicial salaries, pensions, and benefits cannot be decreased during judges’ service except as a coherent part of an overall public economic measure.
2.23. The Ministers of the government shall not exercise any form of pressure on judges, whether overt or covert, and shall not make statements which adversely affect the independence of individual judges, or of the Judiciary as a whole.
2.24. The power of pardon shall be exercised cautiously so as to avoid its use as an interference with judicial decision.
2.25. The Executive shall refrain from any act or omission which pre-empts the judicial resolution of a dispute, or frustrates the proper execution of a court judgment.
2.26. The Executive shall not have the power to close down, or suspend, or delay, the operation of the court system at any level.
3. THE JUDICIARY AND THE LEGISLATURE
3.1. The Legislature shall not pass legislation which reverses specific court decisions.
3.2. Legislation introducing changes in the terms and conditions of judicial service shall not be applied to judges holding office at the time of passing the legislation unless the changes improve the terms of service and are generally applied.
3.3. In case of legislation reorganising or abolishing courts, judges serving in these courts shall not be affected, except for their transfer to another court of the same or materially comparable status.
3.4. Everyone shall have the right to be tried expeditiously by the established ordinary courts or judicial tribunals under law, subject to review by the courts.
3.5. Part-time judges should be appointed only with proper safeguards secured by law.
3.6. The Legislature may be vested with the powers of removal of judges, upon a recommendation of a judicial commission or pursuant to constitutional provisions or validly enacted legislation.
9. THE INTERNAL INDEPENDENCE OF THE JUDICIARY
9.1 In the decision-making process, a judge must be independent vis-à-vis his judicial colleagues and superiors.
9.2 Any hierarchical organization of the judiciary and any difference in grade or rank shall in no way interfere with the right of judges to pronounce their judgments freely.