The Oxford Handbook of Comparative Constitutional Law
- meaning of judicial independence
- elements of judicial independence (appointment, security of tenure, length of tenure, procedure for removal, security of magistrates, financial security, jurisdiction, etc) and relevant cases
Constitutional Law Judicial Independence
Meaning of Judicial Independence
• the judiciary is the arm of govt entrusted with the judicial/adjudicating power of
the state
• responsibilities:
• determines, interprets, and applies the law
• upholds the constitution and the fundamental rights and freedom declared
and guaranteed therein
• ensures the maintenance of the rule of law on the part of all members of
society
• can strike down the legislative for inconsistency with the constitution
• remain independent of the legislature and exec
• consists of:
• court of appeal
• privy council
• supreme court
• lower courts
• entrenched in provisions of constitutions dealing with judiciary
• Hinds: JI should be inferred from the existence of SOP due to our Westminster
modelled constitution
• independence is essential because of the role of the courts in protecting the
constitution
• not only an expectation of individual judges, but a systematic/collective feature
of the judiciary as an institution to be independent
• core features of JI:
• freedom of judicial officers to perform their judicial functions in accordance with
the law, free from external interference (R v Jones)
• external interferences = other branches of govt, pressures from parties to the
dispute, groups/members of society, other judges
• power and duty to review the actions of the legislature and executive to
determine whether they are in conformity with the constitution
• judges must not descend into the arena of the other branches
• i.e. independence goes both ways
• integrity of the judicial function and public confidence in the administration of
justice are compromised if judges appear to be interfering in executive
functions
• judges should not make law but interpret it
• judges cannot be members of parliament
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