Judicial independence

Judicial independence

Judicial independence is the doctrine that decisions of the judiciary should be impartial and not subject to influence from the other branches of government or from private or political interests. In most cases, judicial independence is secured by giving judges long tenure, and making them not easily removable.

History in English legal system

Judicial independence emerged slowly in the United Kingdom, and later in Europe. Under the Norman monarchy, the king and his Curia Regis held judicial power. Later, however, more courts were created and a judicial profession grew. In the fifteenth century, the king's role in this feature of government thus became small. [Justice Gerard La Forest, Provincial Judges Reference, Supreme Court of Canada, para. 305.] Nevertheless, kings could still influence courts, and could dismiss judges. The Stuart dynasty used this power frequently, in order to overpower Parliament. After the Stuarts were removed in the Glorious Revolution of 1688, some advocated guarding against royal manipulation of the judiciary. Thus, King William III finally approved the Act of Settlement 1701, which established tenure for judges unless Parliament removed them. [Justice Gerard La Forest, Provincial Judges Reference, para. 306.]

In the United Kingdom

In the United Kingdom, this aspect of the separation of powers is less clear-cut than in the US. The key factors that help to ensure judicial independence in the British system are:


The independence of the judiciary is guaranteed by the Constitutional Reform Act 2005, s.3.


In order to try to promote the independence of the judiciary, the selection process is designed to minimise political interference. The process focuses on senior members of the judiciary rather than on politicians. Part 2 of the Tribunals, Courts and Enforcement Act 2007 aims to increase diversity among the judiciary.

Pay and rewards

The pay of judges is determined by an independent pay review body. It will make recommendations to the government having taken evidence from a variety of sources. The government accepts these recommendations and will traditionally implement them fully.


As of March 2008, the legal profession is a self-regulating profession, i.e. it is responsible for its own professional standards and for dealing with those who fall short. In this case, the bodies are the Bar Council and the Law Society. However, this self-regulation will come to an end when those bodies themselves come under the regulation of the Legal Standards Board, composed of non-lawyers, under the Legal Services Act 2007.

ecurity of tenure

As long as judges hold their positions in "good order", they remain in post until they wish to retire or until they reach 70.

Political conventions

There are two important conventions which help to preserve judicial independence.
* Parliament does not comment on the cases which are before the court
* Under a principle known as "Parliamentary Privilege", Members of Parliament are protected from prosecution in certain circumstances by the court.

In the United States

There are two types of judicial independence: institutional independence and decisional independence. Institutional independence means the judicial branch is independent from the executive and legislative branches. Decisional independence is the idea that judges should be able to decide cases solely based on the law and facts, without letting the media, politics or other concerns sway their decisions, and without fearing penalty in their careers for their decisions.

The federal government of the United States of America, for example, gives all members of the Supreme Court, and all members of district courts and appeals courts, lifetime tenure, although conditioned upon good behavior. Other federal judges get substantial terms, such as fifteen years for judges of bankruptcy courts. Federal judges may be, and have been, impeached by Congress although this is commonly believed to be limited to removal for reasons of personal misconduct such as bribery, criminal conviction, or the like. Thus, a law-abiding Federal judge effectively has a life-time appointment.

Another prong of judicial independence is proper judicial selection. The American Bar Association, which advocates executive appointments of judges who have been cleared by screening committees (so-called "merit selection"), is at odds with many state legislatures which prefer election by the general public. The American Bar Association, and state bar associations generally, view judicial elections as rewarding political skills rather than legal skills.

Hybrid systems exist, but also are seen as having advantages and disadvantages. Virginia's General Assembly, for example, appoints State judges for 8-year terms, subject to renewal by the legislature. However, given that neither the public nor practicing attorneys are informed of pending renewals, and the General Assembly does not obtain information from either attorneys or past litigants, the renewal process lacks substantive information to inform the votes of legislators, and is accused of being merely political patronage from members of the Committees on Courts and Justice.

Current Proposals and Controversy in the U.S.

The question of judicial independence is a current issue of significant debate within the U.S. political system, although arising under different labels and names.

There are current political campaigns to make judges more accountable for allegedly bad decisions, meaning those that alletedly do not follow laws passed by the legislature, procedural rules, or precedents of higher courts, or the failure of judges to avoid conflicts of interest and bias, or lack of judicial temperament by judges in how they treat litigants in their courtrooms, or criminal sentences seen by some as too lenient or too harsh.

Referenda have been placed on state ballots to make judges more accountable, such as the J.A.I.L. initiative in South Dakota, which was not approved but engendered and continues to engender significant debate and efforts to promote similar ballot initiatives in other States.

In response to these calls for change to judicial independence, opponents of such change argue for the central importance, in their view, of an independent judiciary immune from political interference in the outcome of court cases.

The 2000 case of "Bush v. Gore", in which a majority of the Supreme Court, including some appointees of the first President Bush, over-ruled challenges to the election of the President Bush then pending in the Florida Supreme Court, whose members had all been appointed by Democratic governors, is seen by many as reinforcing the need for judicial independence, both with regard to the Florida Supreme Court and the US Supreme Court. This case has focused increased attention on judicial outcomes as opposed to the traditional focus on judicial qualifications.

Both sides of this debate refer to the doctrine of separation of powers, yet interpret this concept in directly opposing ways. On one side of this debate, separation of powers means that no one branch may act unilaterally, but power is divided between the Legislative, Judicial, and Executive Branches. That is, "checks and balances" should also apply to the Judicial Branch.

On the other side of this debate, separation of powers means that the Judiciary is independent and untouchable within the Judiciary's sphere. In this view, separation of powers requires that the Judiciary alone holds all powers relative to the Judicial function and the Legislative and Executive Branches may not interfere in any aspect of the Judicial Branch.

For example, the Florida Supreme Court maintains that only the Florida Supreme Court may license and regulate attorneys in Florida and set rules for the Florida courts. In other states, the power to regulate all professions -- including attorneys -- is held by the legislature although regulation of attorneys is delegated to the state Bar or state Supreme Court merely for convenience.

There are hybrid or compromise views as well. Current proposals by members of Congress such as Todd Akin and Trent Franks would require the immediate removal of judges for a failure to continue "during good behavior" as the Constitution provides, and would by statute define the meaning of "good behavior." This would result in the immediate removal of Federal judges for any misconduct without the need for impeachment.

In Canada

Canada has a level of judicial independence entrenched in its Constitution, awarding superior court justices various guarantees to independence under sections 96 to 100 of the Constitution Act, 1867. These include rights to tenure (although the Constitution has since been amended to introduce mandatory retirement at age 75) and the right to a salary determined by the Parliament of Canada (as opposed to the executive). In 1982 a measure of judicial independence was extended to inferior courts specializing in criminal law (but not civil law) by section 11 of the Canadian Charter of Rights and Freedoms, although in the 1985 case "Valente v. The Queen" it was found these rights are limited. They do, however, involve tenure, financial security and some administrative control.

The year 1997 saw a major shift towards judicial independence, as the Supreme Court of Canada in the Provincial Judges Reference found an unwritten constitutional norm guaranteeing judicial independence to all judges, including civil law inferior court judges. The unwritten norm is said to be implied by the preamble to the Constitution Act, 1867. Consequently, judicial compensation committees such as the Judicial Compensation and Benefits Commission now recommend judicial salaries in Canada.


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