The independence of the judiciary is the concept that the judiciary should be kept away from other branches of government. That is, courts should not be exposed to undue influence from other branches of government or from private or partisan interests. The independence of the judiciary is essential to the idea of ​​separation of powers.
Different countries are dealing with the idea of ​​judicial independence through various means of judicial elections, or choosing judges. One way to promote judicial independence is to provide a long term of life or term for judges, who ideally free them to decide cases and make decisions in accordance with the rule of law and court policy, even if the decision is politically unpopular or opposed by the interests the strong one. This concept can be traced back to 18th century England.
In some countries, the ability of the judiciary to examine the legislature is enhanced by the strength of legal review. This power can be used, for example, by mandating specific actions when the judiciary feels that the branch of government refuses to perform constitutional duties or by declaring a law passed by an unconstitutional legislature.
Video Judicial independence
Economic basis
The constitutional economy examines issues such as the appropriate distribution of national wealth including government spending on justice. In transitional and developing countries, expenditures for the judiciary can be controlled by the executive. This undermines the principle of judicial independence because it creates financial dependence from the judiciary to the executive. It is important to distinguish between two methods of judicial corruption: the state (through the most dangerous, personal and budgetary planning). State court corruption can hamper the business's ability to optimally facilitate the growth and development of a market economy.
In some countries, the constitution also prohibits legislative branches from reducing the salary of judges sitting.
Maps Judicial independence
Development concepts
National and international developments
The development of judicial independence has been debated to involve a cycle of national law affecting international law, and international law which then affects national law. This is said to occur in three phases: the first phase is characterized by the domestic development of the concept of judicial independence, secondly by the dissemination of these concepts internationally and their implementation in international law, and the third by the implementation of national law of newly formulated international principles of autonomy Justice.
An important example illustrating this cycle is the British Empire. The first phase took place in England with the original conception of judicial independence in the Settlement Act 1701. The second phase is evident when British concepts of judicial independence spread internationally, and adopted into the domestic law of other countries; for example, Britain serves as a model for the separation of the doctrine of the powers of Montesquieu, and the Founding Fathers of the US Constitution use Britain as their dominant model in formulating Article III of the Constitution, which is the basis of the independence of American judiciary. Other common law countries, including Canada, Australia, and India, also adopted the British judicial independence model.
In the last few decades the third phase of judicial independence has been proven in England, having been significantly influenced by the principles of judicial independence developed by international human rights constitutional documents. The European Court of Human Rights (ECtHR) has had a significant impact on the conceptual analysis of judicial independence in England and Scotland. This process began in the 1990s with ECtHR hearing the British case and, more significantly, in the application of the European Convention on Human Rights in English law through the Human Rights Act 1998, which came into force in England in 2000.
Where previous UK national laws impacted the international development of judicial independence, the British Constitutional Reform of 2005 marked a shift, with international law now influencing British domestic law. The Constitutional Reform Act dramatically reformed government control over the administration of justice in England and Wales; importantly, he stopped the position of Lord Chancellor, one of the country's oldest constitutional offices, believed to be a combination of legislative, executive, and judicial capacity. The Lord Chancellor served as speaker at the House of Lords upper house of parliament; as a member of the executive branch and senior cabinet member; and as head of the judiciary. Historically, the appeal function has links to the executive branch because of the types of cases that are usually heard - impeachment and trial of criminal charges against colleagues. The Constitutional Reform Act sets a new demarcation line between Lord Chancellor and the judiciary, transferring all judicial functions to justice and entrusting the Lord Chancellor only to what is considered administrative and executive issues. In addition, the Constitutional Reform Act replaces the Lord Chancellor by the Chief Justice as head of the judiciary, separating the Court of Appeals Committee from the House of Lords from the legislative parliament, reforming it as the Supreme Court, and creating the Judicial Appointment Commission.. The creation of the Supreme Court is important, as it eventually separates the highest court of appeal from the House of Lords.
Thus, the United Kingdom, where judicial independence began more than three hundred years ago, illustrates the interaction of time-to-time law and national and international jurisprudence in the field of judicial independence. In this process, concepts and ideas become enriched because they have been implemented in the judicial and political systems in a row, as each system has improved and deepened the actualized concepts and ideas. In addition to the UK, similar developments of conceptual cross-fertilization can be seen internationally, for example in EU law, in civil law countries such as Austria, and in other common law jurisdictions including Canada.
International standards
The International Association of Judicial Independence and World Peace produced Gn. Scopus International Standards of Judicial Independence between 2007 and 2012. It builds on the minimum standards of New Delhi the same association on judicial independence adopted in 1982 and their Universal Declaration of the MontrÃÆ'Â © al on the Independence of Justice in 1983. Other influences they cited for including the United Nations Basic Principles on Independent Judiciary from 1985, Principles of Burgh House of Judicial Independence in International Law (for international justice), Principles of Tokyo Law Asia, Council of Europe Statements on judicial independence (in particular the recommendations of the Committee of Ministers for Members) Declares independence, efficiency and the role of judges), Bangalore Principles of Conduct 2002, and the American Bar Association's revision of ethical standards for judges.
Justice system
In recent years, the principle of judicial independence has been described as one of the core values ​​of the judicial system.
Canada
Canada has a degree of judicial independence embedded in the Constitution, provides high court decisions on various guarantees for independence under sections 96 to 100 of the Constitution Act, 1867. This includes the right to term of office (though the Constitution has been amended to introduce mandatory pensions by age 75) and the right to salary set by the Canadian Parliament (as opposed to the executive). In 1982 the measure of judicial independence extended to the lower courts specializing in criminal law (but not civil law) by section 11 of Canada's Right and Freedom Charter, although in the case of 1986 Valente v. The Queen found these rights limited. They do, however, involve mastery, financial security and some administrative control.
In 1997 there was a major shift towards judicial independence, as the Supreme Court of Canada in the References of the Provincial Judges found an unwritten constitutional norm guaranteeing judicial independence for all judges, including inferior civil court judges. The unwritten norm is said to be implied by the opening of the Constitution of the Constitution, 1867. As a result, judicial compensation committees such as the Commission on Compensation and Judicial Benefits now recommend judicial salaries in Canada. There are two types of judicial independence: institutional independence and independence of judgment. Institutional independence means an independent judicial branch of the executive and legislative branches. Decisional independence is the idea that judges should be able to decide cases based solely on laws and facts, without allowing the media, politics or other issues to influence their decisions, and without fear of punishment in their careers for their decisions.
Hong Kong
In Hong Kong, judicial independence has been a tradition since it became a British crown colony in 1842. After the transfer of Hong Kong's sovereignty in 1997 to the People's Republic of China under the Joint Chinese-British Declaration, an international agreement was registered with the United Nations, the independence of the judiciary, a continuation of English common law, has been enshrined in the region's constitutional document, the Constitution. In recent years, this independence has been questioned after a number of interventions from China in some cases that destabilize the favorable decisions of the Executive, especially the Controversy of the Hong Kong Legislative Council in 2016.
United Kingdom
England and Wales
History
During the Middle Ages, under the Norman monarchy of the British Empire, the king and his Curia Regis held the judicial powers. Judicial independence began to emerge during the early modern period; more courts were created and the judicial profession grew. In the fifteenth century, the role of the king in this governmental feature became small. Nevertheless, the king can still influence the court and dismiss judges. The Stuart Dynasty used this power often to defeat the British Parliament. After Stuart was dismantled in the Great Revolution in 1688, several advocates defended against the manipulation of the judicial kingdom. King William III approved the Settlement Act 1701, which stipulates the term of office for judges unless Parliament revokes it.
Contemporary usage
Under the non-codified English Constitution, there are two important conventions that help to preserve judicial independence. The first is that the Royal Parliament of Britain does not comment on cases before the court. The second is the principle of parliamentary privilege: that Members of Parliament are protected from prosecution under certain circumstances by the courts.
Furthermore, judicial independence is guaranteed by the 2005 Constitutional Reform Act. To try to promote judicial independence, the selection process is designed to minimize political interference. This process focuses on senior members of the judiciary rather than on politicians. Part 2 of the Tribunal, Court and Enforcement Act 2007 aims to increase the diversity among the judiciary.
Judge pay is determined by an independent review board. It makes recommendations to the government after taking evidence from various sources. The government accepts this recommendation and will traditionally apply it fully. As long as the judges hold their positions in "good orders," they remain in the post until they want to retire or until they reach the mandatory retirement age of 70.
Until January 1, 2010, the legal profession governs itself; with the responsibility to apply and enforce its own professional standards and to discipline its own members. The corpse performing this function is the Bar Council and the Legal Society. However, this self-regulation ends when the approved regulators are under the Legal Services Council's rules, made up of non-lawyers, following the passage of the Legal Services Act of 2007. It sees the establishment of the Rules of Attorney Authority to arrange lawyers and the Bar Standards Board to arrange lawyers.
United States
federal court
Article III of the United States Constitution establishes federal courts as part of the federal government.
The Constitution provides that federal judges, including judges of the United States Supreme Court, are appointed by the President "by and with the advice and approval of the Senate." Upon appointment, a federal judge:
... both of the highest and inferior Courts, will hold their Office during Good Conduct, and shall, at the time mentioned, receive for their Compensation Services which shall not be reduced during their Continuation at the Office.
The federal judge vacates the office only after death, resignation, or impeachment and deletion from the office by Congress; only 13 federal judges have ever been dismissed. The phrase "during good conduct" precedes the Declaration of Independence. John Adams likened it to a quamdiu se bene gesserint in a letter to the Boston Gazette published on January 11, 1773, a phrase that first appeared in part 3 of the Act of Settlement 1701 in England.
The President is free to appoint someone to the federal bench, but usually he consults with the American Bar Association, whose Standing Committee at the Federal Court level respectively nominates "Good to Qualify," "Qualified" or "Not Qualified."
Country court
State courts deal with judicial independence in many ways, and some forms of judicial elections are used both for courts and appeals courts (including state supreme court), varying between states and sometimes within states. In some states, judges are elected (sometimes at partisan ballots, other times on non-partisan ones), while in other countries they are appointed by the state governor or legislature.
The 2000 case of Bush v. Gore , in which the majority of the Supreme Court, including some who were appointed President George HW Bush, rejected the challenge for George W. Bush's election and then awaited the Florida Supreme Court, whose members have all been appointed by Democrat governors, seen by many as strengthening the need for judicial independence, both with respect to the Florida Supreme Court and the US Supreme Court. This case has increased focus and attention on judicial outcomes compared to the traditional focus on judicial qualifications.
See also
- Judicial reform
- The judiciary in Russia
- Political corruption Ã,§ Judicial corruption
- Rules by High Law
- The rule of law
- Power separation
References
External links
- Independence of the judicial system Part I. Judge Independence Part II - Venice Public Prosecution Commission, 2010
Source of the article : Wikipedia
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