The Role Of The Judicial Branch In A Democracy - Essay Example

THE ROLE OF THE JUDICIAL BRANCH IN A DEMOCRACY The past ten years has seen an increase in the discussions over the role that judges and the judiciary as a whole plays in areas that deal with government policies as well as politics, areas that had previously been thought of as areas that legislators should be dealing with. Some see this style as a big threat to the aspects of good government and also democracy however; this paper will argue that this is a view that is old especially considering that the functions of democratic countries have changed over the years. In actual fact, democracy is far more complicated than just having people who are elected by the people setting out what should be considered as law. There are three branches making up a democracy and these are the legislature which not only sets out procedures that should be followed by the government but also ensures that the law is performed. The executive is the second branch of democracy and its main job is ensuring that policies are turned into action while the judiciary does the work of applying the law according to the procedures of justice that have been put in place while at the same time resolving any disagreements that might occur in the society. In order to ensure that there is freedom which is a one of the most important parts of democracy, it is necessary for these three powers to operate on their own but also act in a way that balances each other1. Having the key values defining the law is what forms the groundwork for democracy since they help to constantly protect the constitution. These values also ensure that equality and civil rights and freedoms are always seen. Democracy is therefore thought to be one of the best types of government as a result of the clear separation that occurs between each of the arms of government2. This is the reason why a judiciary that is independent in its actions is often seen as one of the best examples of a democracy that is working as it should be. For many, this type of democracy is a way in which its citizens can protect themselves against any instance where those who have been elected would wish to take advantage of the power that they have been given. In this regard, the degree to which the judiciary functions and how all those who exist within the democratic government take on its suggestions are often seen as important signs of a democracy that is healthy3. An independent judiciary is important for any democracy to consider itself as successful. Without this, it presents the chance for dictatorship to occur since the judiciary’s job is to protect the country’s constitution4. In addition, the judiciary also helps to explain the constitution, enabling both parliament as well as legislature to act in the best way especially since many of those who are elected might be tempted to act in a way that beyond the powers that have been named within the constitution. The judiciary helps to ensure that the constitution is neither ignored nor disrespected. Moreover, in the instance that there is trouble either understanding or implementing the constitution which the government is unable to solve, the judiciary is often the only body that can be able to deal with this problem in a way that will be acceptable to all5. A democracy provides a chance for people to have opinions that they can express; these opinions are as varied as the people who give them and might sometimes cause conflict to occur and often the government and legislature cannot be in a position to solve these conflicts. The judiciary, which is thought to be free and working using its own rules, will help to provide a fair ruling that will be accepted by all and therefore help end these crises6. For a democracy to continue it is important for the judiciary to be able to carry out its work of ensuring offenders are punished in the way that they should be. The courts are often seen as the area where a person can protect his or her rights and where he knows that he will be treated in a fair manner especially with regard to the way in which the law is put in place7. In order to carry out this job well, the judiciary has to be free from the other divisions of government especially the legislature since without this, it is impossible for both the court and its judges to carry out their tasks as they should. Courts which constantly have to deal with constant criticism and interference from the executive or the legislature cannot be in a clear position to protect either ordinary citizens or those from communities that have not always been protected by the law from a government that could abuse the large amount of power that it traditionally has8. For a judiciary, being free from unfairness is one of its major goals which is the reason why the large number of governments that consider themselves as democratic constantly wish to ensure that independence of their courts is assured by protecting it from any type of influence. This protection is not only from other divisions of the government but also from private companies and organizations which put in place a large amount of pressure on the judges to rule in their favor9. Independence of the judiciary enables it to ensure that a country continues to maintain peace and respects all the rights of their citizens. In this way, it helps to assure democratic freedom by ensuring that there is no one branch of government that has more power than the other. In addition, an independent judiciary helps to protect the balance between each of the three branches of government10. The judiciary also plays a distinct role in providing support to the process of elections since it significantly reduces on the power that those who have positions of leadership have11. It does this in two ways; the first being that it identifies the activities that can be carried out by a certain government. Consider as an example how in Canada, the government can only act under the powers set out in the Charter of Rights and Freedoms which aims at ensuring that all Canadians have the rights and freedoms that they deserve are awarded to them12. In this regard, a judiciary that is healthy is essential for creating support towards accepting the rule of law and in the long run helping to create a democratic government. This is because a judiciary that is both easy to access and free from any influence helps to cultivate a clear understanding of what constitutes the law13. At its core, a democracy that has a judiciary that is weak will not be able to ensure control of its officials who are elected who in many instances might severely test the limits of their powers as provided within the constitution. In addition, a democracy that is unable to ensure its judiciary is strong and independent will not be able to create the necessary environment that will enable growth of the economy14. In order for citizens to accept the decisions of a court and argue that they are fair, it is critical for them to see that the judges have made a fair analysis of the facts in question and more importantly have applied them in a manner that is independent and unbiased. Any sense that this is not occurring and that the court has failed in its responsibility to sort out conflicts only creates an overall lack of respect which in turn serves to disrupt peace and the running of a democratic government15. A country which places focus on ensuring that its judicial system is constantly examined and changed will in turn see an increase in the levels of variety as well as progress in its law. The judiciary will in turn place value on the levels of independence and use the power that it has to carry on examination of law that will help to control the behavior of government especially as it has been set out in the Constitution16. The ability of a court to behave in an independent manner is therefore seen as a central part in creating of a democratic government. This is because judges can use their judgments to speak out on issues that are important and that affect the society and in turn help to influence policy and the decisions that a government will make regarding core areas where there is a need to increase on delivery of services ranging from education to health17. More importantly, an independent judiciary helps to create the basis for the creation of a society that is open and that is based on justice for the society and human rights. In this regard the judiciary helps to provide the tools necessary for putting in place power that is democratic in nature and to effectively deal with the conflicts that occur between the state and civil society and private citizens18. Conclusion A healthy judiciary and democracy have a close relationship; one cannot exist without the other. A judiciary that is independent in nature helps to cultivate an acceptance among the citizens of the rule of law which in turn encourages the government to be more democratic in nature. Moreover, an independent judiciary can speak out on critical issues in the society through its judgments and this helps in putting in place the right polices that will support citizens to exercise their right to be ruled by a democratic state. More importantly, an independent judiciary helps to put in place legislation that enables it to exercise control over the activities of the other two branches of government. Bibliography Gilbert, Michael D. 2013. “Judicial Independence and Social Welfare.” Michigan Law Review 112(2013): 575–577. Hirschl, Ran. Towards juristocracy. The origins and consequences of the new constitutionalism. Cambridge: Harvard University Press, 2007. Norris, Pippa. Democratic deficit. Critical citizens revisited. New York: Cambridge University Press, 2011. Tamir, Moustafa and Tom Ginsburg, eds. Rule by Law: The Politics of Courts in Authoritarian Regimes. New York: Cambridge University Press, 2008. Read More