Achieving judicial independence in order to ensure impartiality in decisions is a complex undertaking. What should to be done to attain it? This guide, from the United States Agency for International Development (USAID), seeks to promote understanding of the issues surrounding judicial independence. The term “judicial independence” is generally used to mean that both the institutions of the judiciary and individual judges are free from interference by other institutions and individuals. If a judiciary cannot be relied upon to decide cases impartially, according to the law, and not based on external pressures and influences, its role is distorted and public confidence in government is undermined.
The guide is divided into three main parts. Following the introductory section, Section 2 describes the key processes and institutional arrangements affecting judicial independence, in both positive and negative ways. Section 3 comprises six regional and national studies including Latin America, Eastern Europe, Africa, France, Italy and the United States, that expand upon important differences in culture, history, and legal systems affecting judicial independence. Section 4 is composed of four papers on specific themes relevant to judicial independence.
Judiciaries in many countries are struggling to break free from their historic domination by the elite, the military, political parties, or the executive. However, no judiciary is completely free to act according to its own rules; nor should it be. Other conclusions from the study are that:
- Opposition to judicial reforms is often high, since so much is at stake
- The method by which judges are selected and appointed is a key element for reform
- Judiciaries who manage their own administration and budget are less vulnerable to interference
- Judges who lack sufficient commitment to an independent judiciary or who do not have adequate training and skills are more vulnerable to outside influences
- The courts’ organisation and procedures, if transparent, can make interference in court operations more difficult
- A society’s expectations of its judiciary play a critical role in fostering independence.
The judiciary, like any other institution of democratic governance, has to be accountable to the public for both its decisions and its operations. The policy implications from the guide make it clear that:
- Reformers of the judiciary system must create a broad-based coalition that would include allies from inside and outside the judiciary
- The process by which judges are selected must be transparent
- Judiciaries must be given more administrative and budgetary control
- Reformers should create special training programmes for judges and improve the benefits accrued to judges and their working conditions
- Reformers should adopt the practices of publishing judicial decisions, public proceedings, court monitoring by NGOs, academics and the media, and annual disclosure of judges’ income to ensure the transparency of court procedures
- Judicial reforms should be publicised to enhance the stature of courts.
