Importance of Having an Impartial and Independent Judiciary - Essay Example

Importance of Having an Impartial and Independent Judiciary Term paper 2102 words al affiliation Importance of Having an Impartial and Independent Judiciary Introduction The independence of the judiciary forms the cornerstone of the constitutionalism of a state1. This independence enables the judges to check other arms of the government. They are able to resolve cases with impartiality and according to the law. There are positive benefits to democracy when the independent judicial systems are involved. They are able to prevent states from changing towards authoritarianism. In undemocratic regimes, the courts are able to thwart such regimes. For one to say that there is a good system of governance in a given country there ought to be a system where all arms act independently without the fear of intrusion into their activities by other branches of government. It is the doctrine of separation of powers, which guides the working of the different arms of the government. Through the system of checks and balances, a particular arm is prevented from superseding its powers. For the judiciary to be able to deliver its mandate and serve the people fairly, it is important that it is independent in its undertakings, and that it acts with impartiality in the delivery of justice. The judiciary plays a very important role in interpreting the law. As Ronald Dworkin observed, law is rules plus principles. Rules cannot be law unless they are interpreted. He further states that when a litigant appears before a judge, he or she is entitled to the right judgment on the matter that they are seeking adjudication upon2. It is therefore important to appreciate the role that the courts as part of the judiciary play in interpreting the law. The terms independence and impartiality and the relation These two terms are linked very closely and most international organs deal with them jointly. In the Canadian Supreme Court case of Valiente v. The Queen3, the notion of judicial independence was addressed. It is not only a state of the mind, but also the status and relationship to others. It is about the expression of how much this notion is given constitutional value. This notion revolves around both the individual and institution. The individual independence is seen in matters such as security of tenure while institutional independence is seen in the institutional and administrative relationships to the other branches of the government4. According to Brian Landsberg5, for a judiciary to be institutionally independent, the judges should enjoy tenure of office so long as they exercise good behavior and a salary that is sufficient to shield them from outside pressure6. Such a judiciary will not be easy to manipulate. A judge should be able to make an independent decision when there are faced with constitutionally controversial issues as in the case of Marbury v. Madison7. Impartiality on the other hand denotes the state of mind or attitude that the judge has towards the parties as well as the issues in the case. A judge should not hold any preconceptions on the matter before them. They should not at any time act in a way that seems to favour or promote the interests of one of the parties involved. No member of the judicial body should hold any prejudice or bias. There should be guarantees to all parties involved that there shall be no doubts as to the partiality of the court or tribunal. A judge cannot be impartial if he is not independent. He should be free from personal pressures as well as institutional pressures. In most instances, when judges are said to be impartial, it is when they get a lot of pressure from the state. Most dictatorial regimes thrive well when they are able to control the judiciary, which is detrimental to the citizens of a country as well as to the institutions of that country. The role of the judiciary in the society The society’s survival is embedded in the rule of law, without which the citizens cannot say that they are free. The rule of law upholds the liberty of an individual where he has an inalienable right to take part in the processes that will shape the society in which he lives. This rule of law can only be upheld if there is an independent judiciary. It gives way for the courts to scrutinize the activities of the government of the day and to ensure that they are lawful. The reason this is important is that, in the modern society, the citizens are mainly under the control of the government. The executive is the most common litigator and if it is able to influence the judiciary, justice cannot be served. It is thus important that a citizen gets audience in a court of law where he can challenge the activities of the government. The regional and human rights instruments advocate for a fair hearing before an independent court. Section 14 (1) of the International Covenant on Civil and Political Rights gives an absolute right to individuals by entitling them to a fair and public hearing. This can only be achieved if a person is able to stand before an independent, competent and impartial judiciary. Furthermore, what is the use of going to seek justice for an individual or for a group; if at all one already knows that the outcome will not be a fair one? The American convention of human rights in article 8 (1) further provides that every person should be heard by a competent, independent and impartial tribunal, within reasonable time. This principle is part of customary international law and all states follow these guidelines, otherwise there would be a gross abuse of human rights An independent judiciary protects the weak in the society from the powerful. The minorities are also protected from the majority, the poor are protected from the rich and citizens are protected from the excesses of the government. From the system in which judges come into office, one can tell whether the judiciary will protect the individuals. A system of appointment of judges is way better than where judges are elected. Where judges are elected, they will tend to lean towards the side that brings them into office. They cannot make judicial decisions that go against the will of the people that brought them into office. The Bemarsh Case In Relation To Judicial Independence and Impartiality In the Bemarsh case8, there was the discussion on the denial of habeas corpus for nine inmates. In this case, all the appellants challenged the lawfulness of their detention. The appellants were allowed to leave the country and if they stayed, they were supposed to stay under detention. It was cited as a case of abuse of human rights by the United Kingdom and a contravention of the provisions of the European Convention on Human Rights. According to the appellants, the state was not supposed to derogate from the provision in the Convention not even by the use of statutory provisions allowing for the detention. The question whether information gathered by state security and intelligence should be disclosed in an open court arose in this appeal case. The basis of the denial was that the Antiterrorism Crime and Security Act 2003, which put a restriction on the right of suspects in terror cases from accessing information relating to their arrest and detention. There arose a conflict between the role of the state in protecting the citizens and the role of the judiciary in ensuring that the state uses its prosecutorial powers in an open, reasoned and accountable manner. In this case, Lord Bingham noted the conflict between the judiciary and the legislature where he stated that the same way that political bodies resolve political issues, the judicial bodies should be let, to exercise their judicial functions in assessing the legality of a particular subject. He however stated that on the question of derogation, which brought out the whole issue, there was a political end to the spectrum. Lord Hoffman however gave a dissenting opinion where he was of the view that derogation was unlawful as in the particular circumstances; the life of the nation was not under any threat. The courts in this matter were shy to interfere with the role given to the legislature. In this case, they could not thus usurp authority that belonged elsewhere. This matter brought in the debate on judicial independence as lord Bingham noted, the attorney general in his submissions was wrong in stigmatizing the judiciary in its decision-making. He stated that if the country was to be called a democratic state, then the judiciary had to do its work independent of any influences. The conflict between the judiciary and other branches of the government is due to a number of reasons. One of these reasons is the increasing liberalism among judges where they seem to be placing more emphasis on human rights and civil liberties. In doing this, they challenge the government where the rights of an individual are abused. This is a departure from what was the norm. Secondly, the human rights instruments have helped the judges by giving them tools within which to use against the external pressures. The third is the authoritarianism by the government where they create legislation that affects the rights and liberties of individuals. Independence as To Decision Making Of the Judiciary As stated above in this essay, the judiciary cannot make impartial decisions if it is not independent. What this means is that the legislature, the executive, other institutions as well as private individuals should respect and abide by the decisions made by the judicial bodies even when they tend to feel that they do not agree with the decisions. This is very important if the rule of law is to be upheld. All institutions have a mandate not to erode the decision-making authority of the judiciary. The decisions made by the judiciary should not be subjected to judicial revision but this is not to dispense with the need for judicial review by competent authorities as prescribed in law. Independence as to decision making also entails the jurisdiction of judicial bodies over all matters that are judicial in nature. They should also be in a position to determine whether they are competent to decide on any matter submitted before them as prescribed by law9. Unless a state has an independent judiciary that can interpret and apply laws based on rules and principle, the citizens cannot claim to live in a democratic state. The judiciary should be free from political calculations or interventions. When this aspect lacks, the concept of law in such a state can also be questioned. If a judge holds personal biases or when they tend to hold particular beliefs, and then lets those biases or beliefs to interfere with his decision-making, the outcome is not pleasant. When a litigant feels that, there were biases there are avenues where one can appeal to. While this may be a way of seeking justice, it will mean that a lot of time will be used and the same would have been avoided if the first judicial body did not allow its biases and prejudices to interfere with its decision-making. This case is mainly seen when we find that a judge belongs to particular school of thought that is biased against certain beliefs by other individuals. For example, you may find that a judge has gender biases or even that there are inclined towards supporting a particular political body. Judicial independence and impartiality is the bedrock of democracy and constitutionalism. When a state allows the judiciary to act independently, the citizens and institutions respect the judicial institution as it should be and they trust it to deliver just decisions. An impartial judge who can rule without any bias is the hope of the oppressed and can administer justice, as it should be. Bibliography A v. Secretary of State for the Home Department, 2004 UKHL 56. Brian K. Landsberg, ‘the Role of Judicial Independence’, http://www.mcgeorge.edu/Documents/Conferences/JUDIND_LANDSBERG_MA STER.pdf, 2007(accessed 26 February 2015). Campbell, J., ‘Preserving Judicial Independence.’ Defense Counsel Journal. Vol. 77, Issue 2. Pp.159-160. Diane, H., ‘Decision Making, Independence and the Judiciary.’ International Journal of Public Administration. Vol.22 Issue 2, 1999, pp. 261-284. Dworkin, R. ‘Theory of Judiciary: Right Thesis’ http://theoryofjurisprudence.blogspot.com/2007/12/ronald-dworkins-right- thesis.html. 2007 (accessed 27 February 2015). Gee, G., Hazell, R., Malleson, K., O’Brien, P., ‘The Politics of Judicial Independence in the UK’s Changing Constitution. Cambridge University Press. United Kingdom, 2015. Gerber, S., ‘A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787’, Oxford University Press. Oxford, 2011. Gilbert, M. ‘Judicial independence and social welfare’, Michigan Law Review, Vol. 112, Issue 4, 2014, pp. 575- 600. LeRoy, S., ‘Judicial Independence and the Integrity of the Judiciary’, Fraser Forum, Vol. 20, Issue 4, 2004. Pp. 1-20. Human Rights in the Administration of : a manual on Human Rights for judges, Prosecutors and lawyers, ‘independence and impartiality of judges, prosecutors and lawyers, Global Business & Development Law Journal / Vol. 19, 2007 Marbury v. Madison, 1803, 137, 5 U.S. Recommendation no.R (94) 12 of the Committee of Ministers of the council of Ministers. The American Convention on Human Rights, 1969. The European Convention on Human Rights, 1950. The International Covenant on Civil and Political Rights, 1966. Peter, D. Webster., ‘who needs an Independent Judiciary?’, The Florida Bar Journal, vol. 78, Issue 2, pp.24-28. Russel, P., O’Brien, D. ‘Judicial Independence in the age of Democracy: Critical Perspectives from around the World. University of Virginia Press. Virginia, 2001. Sorge, A., ‘the role of the Judiciary in the Publice Decision-Making Process’. Economics and Politics, Vol. 24, Issue, 2012, pp. 1-23. Sueur, A., Sunkin, M., Murkens J. Public Law: Text, Cases and Materials 2e. Oxford University Press. Oxford, 2013. Valiente v. The Queen, 1985, 673, 2.S.C.R Read More