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What Really Is Independence Of The Judiciary?

| by Ruwantissa Abeyratne

( June 10, 2014, Montreal, Sri Lanka Guardian) In an article appearing in this journal on 9 June 2014 entitled Independence of Judiciary: A Mirage in South Asia, it was stated: " In Sri Lanka and Bangladesh, the judiciary has been reduced to a subordinate entity of the state, where the concept of separation of powers is at its lowest ebb if not absent. In India, though the judiciary is largely independent of executive control, its daily functioning is subjugated to the government..." If this is true, it is indeed appalling news, as it goes against the most fundamental grain of decent government and governance.

Simplistically put, the judiciary is one of the three powers that are distinctly separated in a democracy. Called the Doctrine of Separation of Powers, the legislature, executive and judiciary are considered independent of one another - the first principle in constitutional law taught in any law school. Montesquieu, a founding father of the doctrine said: the most important freedom was the independence of the judiciary: “There is no liberty, if the judiciary is not separated from the legislative and executive". Another distinguished jurist, Sir Igor Judge, said: " The independence of the judiciary is something which is precious to every single member of the community. You must be able to go into court and know that the person sitting in judgment is neutral. Closer home, one of our own distinguished (former) judges, Justice Wigneswaran, in a public lecture delivered in December 2012 had this to say: Independence of the Judiciary means simply that the Judiciary needs to be kept aloof as far as possible from the other branches of Government and other interest groups. In other words, Courts should not be subject to improper influence be it from other branches of the Government, that is the Legislature as well as the Executive, or from private or partisan interests. If Judges in a country could decide cases and make rulings in applications before them according to the rule of law and according to their judicial discretion, even if they be unpopular and even if they may embarrass powerful vested interests, then we might say there is Independence of the Judiciary in such a country".

There is global agreement on the need for a distinctly independent judiciary in any decent society. Basic Principles on the Independence of the Judiciary adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985 recognize fundamentally that the Universal Declaration of Human Rights enshrines in particular the principles of equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal established by law.

These global principles establish clearly that the independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary and that the judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. They also provide that the judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law. The principles prohibit any inappropriate or unwarranted interference with the judicial process, and establish unequivocally that no judicial decisions taken by the courts shall be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law. Everyone is given the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.

Explicitly enshrined in the principles is the inherent right of judges, in accordance with the Universal Declaration of Human Rights, to consider themselves, as members of the judiciary, to be like other citizens and therefore be entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges have to always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary. Judges are free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.

Judges, as persons selected for judicial office, are required to be individuals of integrity and ability with appropriate training or qualifications in law. Judges, whether appointed or elected, have the right to guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists. Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.

Finally the United Nations Principles say that a charge or complaint made against a judge in his/her judicial and professional capacity has to be processed expeditiously and fairly under an appropriate procedure. The judge would have an inherent right to a fair hearing. The examination of the matter at its initial stage has to be kept confidential, unless otherwise requested by the judge. Judges are subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties. All disciplinary, suspension or removal proceedings are required to be determined in accordance with established standards of judicial conduct. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

Judges are individuals who hold a sacred and honourable office that is responsible for administering the rule of law. In other words a rule of equality of all before the law. John Locke (1632-1704,) in his Second Treatise of Government, argues that legitimate government is a limited government based on consent, in which the majority rules but may not violate people’s fundamental rights. People's fundamental rights are intrinsic to the independence of the judiciary and a judiciary without the independence as globally recognized under United Nations Principles, would be a mockery of justice.

The author served the United Nations in Montreal for 24 years and is currently President/CEO, Global Aviation Consultancies Inc. Montreal, and Senior Associate, Air Law and Policy, Aviation Strategies International, Montreal.

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