Standards on Judicial Independence (original) (raw)

International Standards for the Independence of the Judiciary

2013

The independence of the judiciary gives concrete expression to two essential elements of democracy, namely the rule of law and the separation of powers. In a constitutional democracy, the political process and any state function must take place within the confines of the law. Judges are tasked to uphold the rule of law. To ensure that they do so without improper influence, they must be independent from the executive and legislative branch of power. Their role for democracy is particularly important in safeguarding human rights. Under international law the following working definition of judicial independence can be discerned: an independent judiciary must (a) be impartial; (b) approach cases in an unbiased manner; (c) display no prejudice; (d) be politically independent; and (e) operate without fear. On the basis of International Consensus: Essential Elements of Democracy (2011), 2 and the DRI/Carter Center Report, Strengthening International Law to Support Democratic Government and Genuine Elections (2012). 3

Judicial Independence in International Courts

2021

The issue of the defining elements of a truly fair justice system has become a constant and consistent concern of international and/or regional political and legal organisations. Given the scale of the phenomenon of establishing and resorting to international courts and tribunals, reflecting, among others, the preference and availability of international actors for settling their disputes by independent and impartial decision-makers, the principles and values of the international judiciary have been subjected to discussions in an increasingly elaborate manner. Among these, judicial independence occupies a special position, being tightly connected to the issue of the legitimacy of such institutions, as an essential factor in ensuring voluntary compliance to the internationally adopted decisions. In this context, the present paper addresses the independence of the judiciary in international courts, both in terms of the fundamental theoretical contributions and from a practical perspec...

The Independence of the Judiciary: Meaning and Threats

JURIDICA INTERNATIONAL, 2022

Defining 'judicial independence' is not an easy task. At the level of theory, formal obstacles exist that arise from the ideological preconception we choose to proceed from; on the practical level, we are confronted with polymorphous materials from the numerous legal experiences accumulated for each domestic law. Likewise, we are not dealing with a monolithic idea, since it is reasonable-and almost mandatory-to delve into multiple layers of semantics that mesh together in unexpected complexity. Whatever obstacles may exist, there is no way to circumvent these dilemmas either, given that judicial independence has been categorised as a key component of democracy and rule of law. This conceptual background seems to point to a reasonable starting point, however, rooted in its wide and general scope. That is the 'Basic Principles on the Independence of the Judiciary' framework adopted in 1985 by the United Nations. *1 It specifi es the following underpinnings: The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper infl uences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

International Standard on the Independence, Impartiality, and Competence of the Judiciary

The principle of independence of the judiciary is recognized in several international instruments. According to Article 10 of the UDHR, “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal…”1 Also, Article 14(1) of the ICCPR states that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”2 Furthermore, this principle has been affirmed in the major regional human rights instruments. Article 6(1) of the European Convention states that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”3 Under Article 8(1) of the American Convention, “Every person has the right to a hearing, with due guarantees and within reasonable time, by a competent, independent, and impartial tribunal, previously established by law…”4 Finally, Article 7(1) of the African Charter provides that, “Every individual shall have the right to have his cause heard. This comprises: (d) the right to be tried within a reasonable time by an impartial court or tribunal.”5 The African Charter additionally states in Article 26 that, “States parties to the present Charter shall have the duty to guarantee the independence of the Courts…” These provisions reflect the widespread agreement on the general notion that the independence and impartiality of the judiciary is vital to the existence of the rule of law and to the protection of human rights. ...

Independent Judiciary - Springer Encyclopedia of Law and Economics

After describing the closely related concepts of judicial independence and independent judicial review of policy, the essay offers an overview of four issues. (1)Reasons for establishing an independent judiciary, including its ability to resolve problems of information asymmetry between citizens – principals and public officials – agents, transform constitutional declarations to credible commitments and provide a mechanism of political insurance. (2) Mechanisms for appointing judges and the jurisdiction of courts. (3) Modelling the role of the judiciary as an additional veto player in games of collective decision making and policy implementation. (4) The judiciary an explanatory variable and its effect on economic variables of interest like economic growth and the size of government. 1 Definition Judicial independence means that courts enforce the law and resolve disputes without regard to the power and preferences of the parties appearing before them (La Porta et al, 2004). Its theoretical antecedents are traced to the Enlightenment and its application in practice dates to the US Constitution. Judicial independence is an indispensable part of the rule of law. The rule of law requires that laws apply equally to both ordinary citizens and public officials, and that they protect the rights of individuals against the power of the state in both the political and economic spheres. In this respect the rule of law and judicial independence are inextricably linked with liberal democracy. The literature on the topic is enormous and cuts across different disciplines including law, economics, politics and sociology. It is not possible to do justice to this scholarship in the confines of the present essay; rather its aim is to present a summary of the main issues. First, it considers the rationale of judicial independence and the closely related judicial review. Second, it looks at the institutional arrangements for judicial independence. Third, it considers how independent courts are modelled in the collective choice framework. Fourth, it discusses some evidence on the effects of judicial independence on economic variables of interest. These issues are analytically treated as separate but are best understood in relation to each other. 2 Rationale for judicial independence A Judicial independence and related concepts

AN INDEPENDENT JUDICIARY: THE CORE OF THE RULE OF LAW

A thorough review is beyond the scope of any single paper, but this work will refer to numerous judicial and academic authorities where the subject has been discussed in considerable detail which may be helpful for future reference. The paper also discusses the historical and jurisprudential basis for the requirement of judicial independence.

Independent Judiciary: Nature and Facets from the International Context

International Journal of Ethics in Social Sciences, 2018

Independent judiciary is an essential social institution to guarantee the rights and liberty not only from the maltreatment of the individuals but also from the sovereign authority. It measures the dominant trademarks of a modern democratic society and the rule of law. Personal freedom in judicial decision making, institutional autonomy in the work of the judicature is a meter of the standards of the democratic state. The study of the independent judiciary has established attention for its rectangular role in society. Several UN and Non-UN documents have articulated independent judiciary and formulate standards for the smooth functioning of judiciary as autonomy and neutral body. This study generates broad concept about the nature of an independent judiciary from three different aspects of the international context. Firstly, the conventional and traditional notion of an independent judiciary that comprises the independence of individual judges and institutional autonomy of courts as an autonomous body. Secondly, the article includes structural and behavioral independence, then thirdly, the scholarship highlights the de facto and de jure independence in details. In the last point, the study consists of highlighting the independent judiciary in the various international and regional instruments revealing its prominence.

Respect for Judicial Independence

Perceptions of the Independence of Judges in Europe, 2020

This Chapter examines whether judges feel that their independence is respected. Three categories of actors are distinguished: the court users, the political system and the internal decision makers of the judiciary. Judges feel in the mean most respected by the internal leadership, to a lesser extent by the court users and least by the political system. In some countries judges do not feel respected by the political system at all. In the opinion of the judges, respect by the different actors has different features. Perceived respect shown by litigants has to do with absence of bribery and other forms of corruption, and inappropriate pressure. Respect by government and parliament is about the implementation of judgments by government and the case load of the judiciary. Case load depends on the resources that politicians make available. Respect by court management concerns absence of pressure on judges to adjudicate cases timely, case load and promotion of judges based on merit. Caselo...