Legal System and Methods (LSM) question on judicial independence (judiciary) PDF

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LSM Question (Judicial Independence)Q. “The independence of the judiciary is the cornerstone of the rule of law and is vital to our constitution and our freedoms. The reputation of our judiciary is unrivalled and our judges are people of integrity and impartiality.”Describe the two key aspects of ju...

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LSM Question (Judicial Independence)

Q. “The independence of the judiciary is the cornerstone of the rule of law and is vital to our constitution and our freedoms. The reputation of our judiciary is unrivalled and our judges are people of integrity and impartiality.” Describe the two key aspects of judicial independence and explain how institutional judicial independence is constitutionally significant.

Ans. The statement in the aforementioned question emphasizes on the importance of the independence of judiciary stating that judicial independence is of utmost importance to uphold Rule of Law. Furthermore, the statement asserts that this independence and impartiality of judiciary is solely to be credited to bring good name to judiciary. The question then asks one to describe the two aspects of judicial independence and how these aspects are important. Without feeling any qualms, one must assert that judicial independence is of extreme importance when it comes to rule of law as it gives a sense of security and freedom to the public and that this aspect of judiciary, independence and impartiality, is the reason why people see this organ of the state as different and better from the other institutions. In this answer one would start off by stating what judiciary and doctrine of rule of law are. Developing on this, one would highlight what is meant by judicial independence and impartiality, the steps the government has taken to ensure them and what is their constitutional significance. After which one would analyze by drawing a nexus between judicial independence and rule of law. The analysis would include the reasons why judicial independence and impartiality distinguishes this organ of the state from the others. To conclude, one would reinstate the thesis that judicial independence and impartiality is one of the most important aspect of judiciary which gives legitimacy to this democratic deficit organ of the state.

Judiciary is the one of the three organs of the state which is primarily responsible for the interpretation of the law. Judiciary comprises of judges and courts which are in a hierarchal order. A judge is the very personification of the law and this organ can therefore be referred to as the custodian, dispenser or even guardian of justice. Coming to Rule of Law, Rule of law has no set definition but in a nutshell the principles governing this doctrine are that no one is above the law and that law treats everyone equally. This doctrine has been defined by Bingham in his eight sub-rules which primarily emphasize on equality and justice hence reiterating the above mentioned points. Rule of Law is a fundamental component of any democratic country. Before drawing the nexus between the independence of judiciary and Rule of Law, one must explain what judicial independence and impartiality is and how has the government tried to ensure it. Judicial Independence has two aspects to it; external independence and internal independence (impartiality).

Discussing external independence first, there should be no interference or influence of any other institution, individual or state on judiciary. Judiciary has to be independent when it comes to its working. Similarly internal independence or impartiality means that judiciary should be unbiased and neutral. Judge should not be arbitrary and he should not let personal grudges or perceptions cloud his judgment. Having discussed what judicial independence and impartiality means, it is eminent for one to highlight the steps taken by the government to ensure judicial independence. The first and the most prominent step was CRA 2005. Prior to this act, the system was incompatible and in direct conflict with the Article 6. Although there was the concept of Separation of Powers but it was not properly being exercised, therefore to reinstate this concept, this act was introduced. What this act did was that it changed the composition of the office of the Lord Chancellor as it was in direct conflict to the basic constitutional principles of separation of Separation of Powers. At that time, the Lord Chancellor was a part of all three organs of the state, he was the head of the judiciary while being the speaker of the House of Lords and being a member of the Cabinet. This was a clear breach of the separation of powers and Article 6 as it clearly was against the principles of judicial independence. Therefore this act removed Lord Chancellor from being the head of the judiciary and the speaker of House of Lords, now he is just a member of cabinet as the minister of Justice. This act further abolished the judicial committee of House of Lords and formed Supreme Court to strengthen judicial independence. Another thing done was the formation of an independent judicial appointment commission (JAC). Then came McGonnell v UK, where the ECtHR upheld the importance of the independence of the judiciary by stating that Article 6 was breached when the sitting judge of the case was also the administrator of the said case. The judge failed the appearance test hence failing Article 6. Other steps taken by the government include Protection against dismissal, no matter how absurd the decision is, the judge cannot be dismissed for it. This gives a sense of security to the judges as they can, when required, take strict decisions against powerful people. Furthermore, the judges have a secured tenure, which means that the judge will keep on serving until he is physically or mentally not capable of doing so anymore. Salary Protection is another step taken by the government which ensures that the judge cannot be bribed, well not easily, as the judges have hefty salaries therefore eliminating their need for getting money from wrong sources. Ensuring internal independence, or impartiality has been relatively difficult. If the judge is somehow personally involved in a case, he should leave the case or otherwise a retrial may take place without him sitting in the bench. This was seen in the Pinochet case where General Augusto Pinochet was tried for committing crimes of Jus Cogens, he was convicted by Lord Hoffman and four other judges. Later it was found that Amnesty International had paid for a major legal representation against General Pinochet and that Lord Hoffman was an unpaid member of this program with his wife being the full member of Amnesty. A retrial took place, although the same decision was made but now the judiciary appeared to be independent and impartial.

Coming to analysis, one must highlight that the primary issue of the judiciary is that it is unelected therefore it lacks the public mandate. This often results in its legitimacy being questioned. The only thing

giving legitimacy to this democratic deficit organ of the state is public confidence, without which there would be no worth of this organ of the state. Judicial independence ensures that the public confidence remains in this institution thus giving it legitimacy. One would now draw the nexus between rule of law and judicial independence. Where the public perceives that judiciary is not independent or impartial, the confidence of public will deteriorate leading to a lack of trust in system. This lack of trust would weaken the writ of the state as people would not believe in the system anymore. Mob rule would prevail and people will take matters in to their own hands. This is when Civil wars will take place which will undermine Rule of Law and would breach Article 6; the right to a fair trial in front of an independent and impartial tribunal. This right here shows the direct connection there is between judicial independence and the rule of law. One would now analyze how the steps taken by the government have ensured judicial independence and to what extent have they been successful. As discussed above, CRA 2005 was the prominent step taken by the government. Now, why was Lord Chancellor removed from being the head of judiciary and the speaker of House of Lords and why was the judicial committee of the House of Lords abolished? The answer to these questions are very simple; to ensure judicial independence, but how? Would the judiciary look independent if its head is also a part of the executive and the parliament? No, it would not, this is the reason he was removed from being the head of the judiciary, because the judiciary should not only be independent, it should also appear to be independent, this is what the appearance test states, without which Article 6 would be breached. For a trial to be fair, the judiciary must pass the appearance test. Furthermore, the judicial committee of the House of Lords was abolished leading to the formation of the Supreme Court. One of the tasks of the Supreme Court is that it checks the validity of the Acts of Parliament. If the Supreme Court was not formed and this task was left to the judicial committee of the House of Lords, would they go against an Act which they themselves made? Even if they do so, would the public perceive them to be independent or impartial? The judicial committee of the House of Lords too failed the appearance test thus leading to its abolishment. Coming to the protection against dismissal, judges cannot be questioned for the decisions they make no matter how wrong the decision might be. If the judge is sure that he honestly decided a case, he cannot be dismissed. This is the protection accorded to them who are the guardians of the justice. What would happen to the judiciary if it is not accorded this protection? They will end up like the Civil Service of Pakistan, which cannot take proper actions against anyone, anyone who is powerful because they may get transferred or even dismissed from service. Do people of Pakistan have trust in the civil service? They may at some point but not now. The reason being that the civil service of Pakistan is not accorded protection against dismissal, it is not independent, thus having no or very less pub lic confidence. If the judiciary is not accorded protection against dismissal, this may cloud their judgments as they may not be able to stand against powerful people and would thus be unable to uphold the rule of law. Security of Tenure and salary protection do play a vital role in ensuring judicial independence as the judge knows when his service would stop and he would not look around seeking for money when his pockets would be full from his legitimate job. The question may arise that how does the government ensure that the judges are accorded protection against dismissal or have a secured tenure? This can be seen in the 18 th amendment to the constitution of Pakistan, after which a judge of a superior court cannot be transferred to any other bench without his own consent or permission. This shows how importance judicial independence and impartiality are.

To conclude, there is no doubt that judicial independence plays a vital role in upholding rule of law and that it is the main reason behind the unmatched reputation of judiciary. The importance of judicial independence could be seen by the steps taken by the government to ensure that judiciary is important which contain CRA 2005, protection against dismissal, security of tenure and salary protection. In the answer one then saw that what would happen if judiciary is not independent where an analogy was drawn to the Civil service of Pakistan. Judicial independence is of therefore extreme essence to uphold Rule of Law and Article 6 which ultimately enhances the public confidence in this democratic deficit organ of the state giving it legitimacy....