This essay studies the importance of judicial independence and impartiality, and the role played by these characteristics in the Australian judicial system, especially in a parliamentary democracy based on the rule of law.
According to the Encyclopaedic Australian Legal Dictionary, judicial independence means that the courts and the judicial system are free from direction, control, or interference in the exercise of judicial powers, by either the legislative or executive arms of the government; in constitutional law, it is the principle of protection of the judiciary from interference by the executive and legislative branches of government, through constitutional checks and balances in a system of government based on the separation of powers doctrine. 1
Impartiality and judicial independence are similar in many aspects. In his address to the Annual Meeting of the Canadian Bar Association in 1994, Chief Justice Lamer said:
‘Judicial independence is, at its root, concerned with impartiality, in appearance and in fact. And these, of course, are elements essential to an effective judiciary. Independence is not a perk of judicial office. It is a guarantee of the institutional conditions of impartiality.’ 2
Judges are to do right by all persons, without fear or favour, affection or ill-will. The existence of parliamentary democracy and the rule of law are dependent on an independent judiciary. 3 This is supported by several established arrangements, which reassure society of the impartiality of judges. In order to maintain this impartiality, members of the judiciary must be free from the influence of other parties and external pressures; be it government parties, the executive, private litigants, the media, and self-interest groups – w...
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...nd’s courts to impartially settle disputes, deal with people who break the law, and determine the legal rights and obligations of individuals, business and government. The courts play a key role in upholding peace, order and good government – essential features of a civilised society.’ 12
Article 10 of the Universal Declaration of Human Rights 13 states that, ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’ In today’s modern society, it is of utmost importance that all judges are able to maintain their judicial independence and impartiality by remaining free from external pressures - which is supported by the doctrine of the separation of powers, in order to provide a fair trial to all, and to protect human rights.
In 1759, the Canadian Court Justice system was brought to Canada by the French. After the battle of Quebec, all of Canada then followed the English common law system except for Quebec 1. Based on my understanding and knowledge of N. Christie’s arguments and the Canadian court system, I believe that Christie’s criticism of modern legal system is fair and it effects our current court system today.
As members of society we are told that the law is a predictable and reliable entity which is applicable to all individuals, despite the differences. This statement encourages us to abide by the law, and entrust it to make decisions that are best for us as individuals and as a community. Due to the formalism of law, it must be emphasized that there is a need for a compassionate component, to even the playing field. One way the law incorporates compassion into its system is through the use of juries. Juries are a random, unbiased selection of people who will be asked to sit in a trial and decide a verdict of guilty or not guilty. The Canadian Charter of Rights and Freedoms guarantees that “a person accused of criminal activity ‘has the right
One of the key components of the rule of law is that the law should apply to everyone equally and fairly, whether, monarch, government or citizen (Ellis 2013). As A V Dicey believed, no one should be above the law and everyone should be subject to the rule of law (Ellis 2013). Within the rule of law, there are five vital components to the operations. These include fairness, rationality, predictability, consistency and impartiality (Hinchy 2015). Fairness and rationality ensures the rule of law applies to everyone including citizens and the government. Predictability pertains that if a law is broken, the consequences will be known. Consistency, warrants consistency that the rule of law is being applied to everyone the same. Lastly, impartiality, which is an individual that decides on issues to do with the law (Hinchy 2015). The rule of law maintains consistency and equality within nations, yet there are countries where the rule of law is not common practice (Ellis 2013). Overall,
Theoretically the powers in Britain are generally well separated with each body being in charge of a different aspect. The executive (government) is in charge of making and proposing policies as to which laws should be brought in, the legislature (parliament) is put in charge of passing the laws proposed by the executive and bring them into effect, and the Judiciary is in charge of interpreting the meaning of these laws and apply these laws in court. In reality, however, these powers seem to overlap with each other quite often. The process of making the law is through passing Acts of Parliament and by use of delegated legislation. Judges use these acts to judge cases and apply it in court. However, nowadays, judges do not only apply these acts, but are also able to ‘make law’ themselves by using the doctrine of judicial precedent and statutory interpretation.
Hamilton conceived the judicial branch as the weakest of the three governmental branches; however, it is an indispensable contributor to the system of checks and balances. The executive and legislative branches check the judicial branch through the President’s power to appoint justices and Congress’ power to establish lower courts. The judicial branch checks both the executive and legislative branches through judicial review, which was established by Marshall in the case of Marbury v. Madison. Hamilton also emphasized the significance of judicial independence from political influence of the two stronger branches of government in order to preserve separation of powers. This requisite independence of the judicial branch is achieved through life tenure for justices, which prevents them from being susceptible to political pressures. Article III of the Constitution pertaining to the Judiciary is very inexplicit regarding the powers of judicial branch; however, the uncontested establishment of judicial review has significantly strengthen its authority and it is undeniably an influential branch within the governmental system today.
The Judicial Branch is the balancing factor of the Government. It is the listener of the people of the US and it decides on all matters regarding the people. It "interprets the nation's law" (World Book 141). Being able to interpret the law gives the Judicial branch a special kind of power. One of which the Executive Branch and the Legislative Branch do not possess. The Judicial branch decides when a law has been broken, to what extent, and how to punish the criminal act. And that is what makes it the strongest branch.
Magleby, David B. "The Judiciary." Government by the Peopl. 2011 ed. Boston: Pearson, 2011. 378-90. Print.
Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. Disqualification should not be used as a strategic move, it is there to guarantee the right of the defendant or prosecutor. If a judge is subject to disqualification, a polite suggestion is appropriate without a formal motion or hearing to maintain an appropriate relationship between the attorney and judge in this sort of profession. While practicing law, a judge should maintain those relationships and social interactions however both should stay mindful of the standards and principles described above that would have any impact or influence on the outcome of a case. Disqualification is a vital safeguard to the preservation of judicial neutrality.
The justice system exists to enforce the rule of law and protect rights of the people, with great importance placed on upholding fairness. Courts are the final arbiter between the citizen and the state, and are therefore a fundamental pillar of the constitution, this quote shows that the courts and the whole of the justice system is important to maintain law and order in today’s society. With the supreme court itself being a form of check and balance for the executive power, but still maintaining the importance of parliament sovereignty. They exist, as can be seen in the quote by lady hale, that it should serve the needs of the UK justice system.
According to Aristotle, "The rule of law is better than that of any individual”, suggesting every member of society, even a ruler, must abide by and follow the law. The rule of law is linked to the principle of justice, meaning that everyone within a society (including both private citizens and government officials) are subject to the law, and that those laws are administered fairly and justly. The intention of the rule of law is to protect against arbitrary governance. It is the basic underpinning of a free society. One of the features of the Australian constitution is that it is structured in a way that theoretically reflects the rule of law.
Dahl conducted his study on the decision making of the Supreme Court and whether the Court exercised its power of judicial review to counter majority will and protect minority rights or if it used the power to ratify the further preferences of the dominant “national law making majority.” From the results of Dahl’s study he builds numerous arguments throughout his article, “Decision-Making in a Democracy: the Supreme Court as a National Policy-Maker”. In what follows, I will thoroughly point out and explain each of the arguments that Dahl constructs in his article.
Robert N. Clinton, ‘Judges Must Make Law: A Realistic Appraisal of the Judicial Function in a Democratic Society’ [1981-1982] 67 Iowa L. Rev. 711 http://heinonline.org/HOL/Page?handle=hein.journals/ilr67&div=38&g_sent=1&collection=journals accessed 12 February 2012
This quote happens to express the deepest problem in a judicial system: justice is perceived differently, so extreme justice for one person can be extreme injustice for another.
The grounds of judicial review help judges uphold constitutional principles by, ensuring discretionary power of public bodies correspond with inter alia the rule of law. I will discuss the grounds of illegality, irrationality and proportionality in relation to examining what case law reveals about the purpose and effect these grounds.
Impartiality means that the judge should not show bias to any of the parties. The two parties should be treated in the same way in terms of equality. Additionally, both parties should be given similar opportunities to submit their cases.