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Judicial Independence

Judicial Independence

Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important to the idea of separation of powers.

Different countries deal with the idea of judicial independence through different means of judicial selection, or choosing judges. One way to promote judicial independence is by granting life tenure or long tenure for judges, which ideally frees them to decide cases and make rulings according to the rule of law and judicial discretion, even if those decisions are politically unpopular or opposed by powerful interests. This concept can be traced back to 18th-century England.

In some countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review. This power can be used, for example, by mandating certain action when the judiciary perceives that a branch of government is refusing to perform a constitutional duty or by declaring laws passed by the legislature unconstitutional.

Ensuring Judicial Independence

Political neutrality

Another way of ensuring judicial independence is to make them politically neutral. The judges must be barred from taking part in partisan politics. They must not be allowed to make any comment or comment that may be deemed to political in any sense or by any stretch of imagination. 

Attractive remuneration

Again, to ensure the independence of the judiciary, their salaries and allowances must be so attractive that they are not attracted to take bribes. Their salaries can never be varies downward. If their salary and allowances must be varied, they can only be varied upward. They must also be allowed to retire on their salary. In other words, when judges retire, they must continue to take their salaries as pension.

Recruitment of judges

One of the ways of ensuring judicial independence is the way the judges are recruited and appointed. Normally, the judges are appointed by the executive arm of government but under the recommendation of an independent body such as Judicial Council.

Immunity of prosecution

Another means by which the independence of the judiciary is ensured is to give them immunity from prosecution for acts committed in the process of carrying out their assigned functions. In other words, the judges can never suffer any punishment for any judgment given as they play their assigned role of administering justice.

Salaries charged on the Consolidated Fund

Finally, to ensure the independence of the judiciary, their salaries and emoluments must be charged to the Consolidated Fund. This ensures a continual flow and payment cannot be truncated for lack of funds.

Tenure of office

To ensure that the judiciary is independence, the judges must enjoy a secure tenure of office. This means that the judges hold their job for as long as they capable of performing without being fired. The only time they can be prevented from doing their job is when they have reached their retirement age, or where they conduct themselves in a way that bring their office into disrepute or when they fall sick to the extent that they are incapable to functioning in their office.

Disadvantages of Judicial Independence

The disadvantages of having a judiciary that is seemingly too independent include possible abuse of power by judges. Self-interest, ideological dedication and even corruption may influence the decisions of judges without any checks and balances in place to prevent this abuse of power if the judiciary is completely independent. The relationship between the judiciary and the executive is a complex series of dependencies and interdependencies which counter-check each other and must be carefully balanced. One cannot be too independent of the other. Furthermore, judicial support of the executive is not as negative as it seems as the executive is the branch of government with the greatest claim to democratic legitimacy. If the judiciary and executive are constantly feuding, no government can function well.

Also, an extremely independent judiciary would lack judicial accountability, which is the duty of a public decision-maker to explain and justify a decision and to make amendments where a decision causes injustice or harm. Judges are not required to give an entire account of their rationale behind decisions, and are shielded against public scrutiny and protected from legal repercussions. However judicial accountability can reinforce judicial independence as it could show that judges have proper reasons and rationales for arriving at a particular decision. While judges are not democratically accountable to the people, the key is for judges to achieve equilibrium between the two to ensure that justice is upheld.

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