Independent judges play an integral role in promoting the rule of law and delivering justice, which is reflected by various international regulations[1].

 

The separation of powers, including the independence of judges, is one of the fundamental pillars of democratic society[2]. Independent courts, as guardians of the constitution, are essential to uphold the rule of law and human rights[3]. A judge should be a non-political and neutral servant of ‘the law’ who applies the law with integrity and free of corruption and other improper influences[4]. By contrast, a judiciary that is dependent on and is therefore controlled by the executive branch or other internal or external pressures is less likely to promote human rights and push for justice[5].

 

Overall, there are several ways in which the government can undermine the independence of judges and influence a judge’s decision-making in practice. This includes, for example, the political context in which a court operates, and organisational and administrative arrangements employed by the government to infiltrate the judiciary, such as appointing and promoting judges by political authorities instead of using a merit-based selection and promotion process administered by an independent, impartial and purely judicial body (e.g. in the form of a judicial council)[6]. Another way to exert pressure on judges and align them with government policies is, for example, the arbitrary (mass) removal from the bench without following clear, objective and fair rules and allowing them to exercise basic formal rights in disciplinary proceedings[7]. Furthermore, no secure tenure (such as lengthy probationary periods, case-assignments, short-term appointments and the lack of retirement age or pension scheme)[8], working conditions (such as the non-protection from physical threats by outside influence)[9] and the level of corruption within a judiciary, combined with an insufficient budget for the judiciary and the absence of an independent body overseeing judicial discipline[10], can erode the autonomy of judges.

 

Finally, it is important to note that the legal culture of a court can have a significant impact on its decision-making, particularly in terms of its compliance with international human rights standards[11]. For instance, a judiciary that is truly independent but conceived as traditionally conservative may not apply human rights standards automatically[12].

 

Footnotes 

 

[1] UNGA Res 40/32 and 40/146 (29 November 1985 and 13 December 1985).

[2] See also Bangalore Principles, Preamble; Magna Carta of Judges, rule 1.

[3] Cf. Bangalore Principles, Preamble and value 1; Kyiv Recommendations, Preamble. See also IAJ Charter, articles 1 and 2.

[4] International Commission of Jurists, Judicial Accountability: A Practitioner’s Guide (ICJ 2016), p 15; M Shapiro and A Stone Sweet, On Law, Politics and Judicialisation (Oxford 2002), p 3; Basic Principles on the Independence of the Judiciary, para 2; Bangalore Principles, paras 1.1 and 2.1; IAJ Charter, article 2.

[5] See also Bangalore Principles, principle 1 and para 3.2; Kyiv Recommendations, para 35; Magna Carta of Judges, rule 10.

[6] Cf. IAJ Charter, article 2; Kyiv Recommendations, paras 3, 7 and 13; Venice Commission, Report adopted by the Venice Commission at its 70th Plenary Session: Judicial Appointments, Opinion No. 403 / 2006, CDL-AD (2007) 028, para 6. See also Basic Principles on the Independence of the Judiciary, paras 10 and 13; IAJ Charter, article 9; Magna Carta of Judges, rules 5 and 13.

[7] See also Basic Principles on the Independence of the Judiciary, paras 17-20; IAJ Charter, articles 8 and 11; Kyiv Recommendations, para 25; Magna Carta of Judges, rule 6; IAJ Charter, article 11.

See, for instance, art 14 ICCPR and art 19 UN Basic Principles on the Independence of the Judiciary.

[8] See also Basic Principles on the Independence of the Judiciary, paras 11 and 12; IAJ Charter, article 8;  Magna Carta of Judges, rule 7; IAJ Charter, article 8.

[9] See also Basic Principles on the Independence of the Judiciary, para 11.

[10] See also Basic Principles on the Independence of the Judiciary, para 7; IAJ Charter, article 13; Kyiv Recommendations, paras 6, 26 and 27; Magna Carta of Judges, rule 5.

[11] Venice Commission, Venice Commission, Report adopted by the Venice Commission at its 70th Plenary Session: Judicial Appointments, Opinion No. 403 / 2006, CDL-AD (2007) 028, para 5.

[12] E Skaar, ‘Judicial independence and human rights policies in Argentina and Chile’ (2001) CMI Working paper, accessed on 24 November 2016.

Judges