The key to fostering and establishing the ‘rule of law’ is to ensure that the judiciary is not only independent but appears to be independent, in order to gain the confidence of the public. The greatest danger to independence comes from the interference of—perceived or otherwise—government institutions or political parties. This paper from the International Centre for Criminal Justice Reform and Criminal Justice Policy examines the concept of judicial independence as it has been applied in the major industrialised nations. Judicial independence is the ability of a judge to decide a matter free from pressures or inducements, and freedom of the institution as a whole from government or other concentrations of power. This concept is enshrined in the 1948 Universal Declaration of Human Rights, in the principles of equality before the law (Article 7), the presumption of innocence (Article 11) and the right to a fair and public hearing by a competent, independent and impartial tribunal established before the law (Article 10). These rights were further endorsed by the United Nations (UN) in its adoption in 1985 of the Basic Principles on the Independence of the Judiciary, and of the Procedures for the Effective Implementation of the Basic Principles on the Independence of the Judiciary in 1989.
Western industrialised nations have performed well, ensuring that judicial independence is upheld. General observations were that:
- Higher salaries have led to ‘clean’ government. In these countries, a ‘legal culture’ has developed where judicial bribery is virtually unknown
- Most complaints about judges in major Western countries are not serious. Examples of such complaints are the use of improper language in court, ‘intemperate’ behaviour, delay in rendering decisions and verbal abuse of lawyers and witnesses in court
- Other complaints relate to judges not being sufficiently sensitive to certain societal concerns such as the role of women in society and to equal treatment of minorities
- In the US, judges are predominantly elected. This can present a danger to judicial independence as turnout is often low, and well-organised special interest groups and political groups can have a disproportionate influence
- The loss of independence through campaign funding is also a problem in the US.
There are many different legal systems in the major industrialised nations. All systems should be capable of providing impartial judges and an independent judiciary if the country concerned incorporates the UN’s Basic Principles into its constitution or laws, and implements them. Specific principles to be upheld are:
- The separation of powers: The judiciary must not have any contact with political parties—especially the party in power—and must limit contact with the executive branch to security, financial and administrative matters
- Security of remuneration: The salary of judges should be fixed and secure
- Guaranteed tenure until retirement or expiry of office: Judges should only be removed or suspended for reasons of ‘incapacity’ or ‘behaviour that renders them unfit to discharge their duties’
- An open court: Members of the public should have the right to enter the court at any time a trial is in progress and have access to decisions. Guidelines and principles should be applied to the media about what they can report in order to ensure a fair trial
- An imperative to communicate the law to the public
- A judicial appointment process that is fair: The selection of judges should be made from people with ‘integrity’ and ‘ability’, with ‘appropriate training and qualifications’ and without discrimination.