Judicial independence in legal theory is the idea that the judiciary, which will be further analysed in this essay, should be kept separate from other branches of government (namely the executive and legislature). This means that the judiciary and its courts are not to be biased, influenced or unfairly persuaded by other parties. It can be said that an independent judiciary is the foundation to a fair legal system in any democratic state. The independence of the judiciary in South Africa is set out under Section 165 of the Constitution, aside from looking at the importance of Section 165, this essay will also look at the relationship between judicial independence, the doctrine of separation of powers and the importance of the rule of law. …show more content…
It consists of the President, Deputy President and Cabinet members. The legislature consists of Parliament and is responsible for the drafting and enactment of legislation. The judiciary consists of all courts, magistrates and appointed judges in the country. They are responsible for interpreting and applying the law and settling disputes.
Section 165 of the Constitution deals with judicial authority and states how judicial independence must be carried out. It expresses that the courts alone hold judicial authority and that they are subject only to the Constitution. It also explains that decisions made by the court must be unbiased and no other organ of state may interfere with decisions of the court. Section 165 also expresses that all decisions of the court must be followed by those whom it binds.
The concept of independence of the judiciary can be seen in the De Lange vs Smuts case where members of the executive wanted to imprison a witness. The constitutional court held that this would not be allowed as according to s165 and the doctrine of separation of powers, that was the function of the judiciary and went beyond the scope of what the Executive had the authority to do. The court also said that judicial independence is foundational to the discharge of the judicial function in a constitutional democracy based on the rule of law. This ruling therefore supports the concept of Independence
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The rule of law is extremely important in our democratic republic as it ensures that justice is served equally and that the law is applied fairly to all and does not discriminate or make biased decisions that could lead to gross miscarriages of justice. It can therefore be said that the independence of the judiciary also contributes to the upholding of the importance of rule of law.
However the Bhe case illustrates that it is not only the executive or ‘legislature that does not conform to the doctrine of separation of powers. In this case, the judiciary declared the principle of primogeniture to be unconstitutional and therefore invalid. In terms of separation of powers, the judiciary should have left it up to the legislature to first try and develop that aspect of customary law to be more constitutional before declaring it invalid. This shows that it is not only the independence of the judiciary that is undermined but other branches of government as
When the rights of the American citizen are on the line than the judiciary should utilize the powers invested in them to protect and enforce what is constitutional. However, in times of controversy, where personal preference or aspects of religious or personal nature are at hand, the judiciary should exercise their power with finesse, thereby acting out judicial restraint. An example of such is in the case of Engel v. Vitale where Mr. Justice Black delivered the opinion of the court directing the School District’s principal to read a prayer at the commencement of each school day. In cases that do not regard whether an action is constitutional or not, the judiciary should suppress their power of judicial review.
Judicial Restraint- judges should decide cases on the basis of the original intent of those who wrote the Constitution
In William Hudson’s book, American Democracy in Peril, he writes about different “challenges” that play a vital role in shaping the future of the United States. One is the problem of the “imperial judiciary”. Hudson defines its as that the justice system in the United States has become so powerful that it is answering and deciding upon important policy questions, questions that probably should be answered by our democratic legislatures. Instead of having debates in which everyone’s voices are heard and are considered in final decision-making process, a democratic-like process; we have a single judge or a small group of judges making decisions that effect millions of citizens, an “undemocratic” process. Hudson personally believes the current state of judicialized politics is harming policy decisions in Americans. According to him, the judicial branch is the “least democratic branch”, and ...
In this course we have had a brief but informative insight into the roles of government, and the Supreme Court. The Supreme Court is perceived as one body of the federal government, and it is a powerful one at most times. With of all this power and the decision making, it is normal to wonder if the court is influenced by political views, beliefs or even ideas. It is being questioned in our course if the Supreme Court is influenced by the dominant political ideas of the time and if the courts just follow those ideas and that is the topic I plan to address, but I also wish to address that politics are not the only influence on the Supreme Court and its decisions. I do feel that the court has been influenced because with so many views and beliefs it’s hard not to have an opinion even in such political matters. Although situations in political vary so do the opinions of those in the court, the effect is no different in any given situation. The influences are simply not just political either, but that is where the major opinion lies. I plan to look at not only how politics influence our Supreme Court, but how other matters such as personal opinion and background influence the court’s decisions on political discussions as well.
In order to secure the rights of everyone, the system of checks and balances is necessary. It is not only for protection from the oppression of society’s rulers but also the injustice of one fraction of society to another. If the governed suspects that the legislative has abused its authority, such as using its powers for personal gains, then by the system of checks and balances, the people are allowed to allocate the legislative into new hands. This is a positive aspect of the constitution because it gives power to the people and not just those in the government. However, not all aspects of the system of checks and balances makes the constitution positive.
There have been many complaints and theories of how the Supreme Court has a tendency to act as a "supra-legislature" (Woll 153). It is proposed that the Supreme Court takes the
The United States Government is divided into three branches of government. These three branches are the Legislative, Executive, and Judicial branches. The legislative branch consists of congress, and congress is responsible for making laws. Next, is the executive branch, this ranch consists of the president, vice president, and other courts. The executive branch is responsible for carrying out and enforcing laws.
The doctrine of the ‘separation of powers’ is a concept that concerns the system of governance, it suggests that there should be an appropriate distribution of power between the different principal institutions of the state . The separation of powers emphasises the functional independence of these branches, and especially that their subsequent actors do not possess powers attributable or assigned to other institutions . This concept is popularly construed with the tripartite division proposed by Montesquieu in The Spirit of the Laws (1748), which details the need for distinction and independence between the executive, legislative and judicial branches, so to effect benefits such as a safeguard of liberty . The separation of powers is adopted in many countries such as the United States, but despite the basis of Montesquieu’s work being the UK
At the apex of our federal court system stands the United States Supreme Court. It stands as the ultimate authority in constitutional interpretation and its decision can be changed only by a constitutional amendment. Two documents are responsible for its creation which is the Constitution, which explicitly creates the Supreme Court, and the Judiciary Act of September 24, 1789. The Supreme Court is the only court named in the constitution laying out the Courts basic jurisdiction, identifying the mode of selection and tenure for justices. Under Article III, Section 1 of the Constitution provides that "[t]he judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Article III establishes the Court as the chief authority of the judicial branch making it equal to the executive and legislative branches (Lieberman, 2003, p 3).
all judiciary cases in which any fact is involved,) or may they act by representatives, freely and
According to the duties found under the works of Article III, the judicial branch deals with defining laws and protecting the Constitution. Section 1 of Article III creates the Supreme Court, “The Judicial Power of the United States shall be vested in one supreme Court”. The Supreme Court is the paramount court, its role in the government is to take the appeals from the subordinate courts who are hoping to overturn the court’s decision, and construe and resolve any confusion of laws regarding the Constitution
... a very strong separation between Executive and Legislature, and the Judiciary – Members of Parliament and Government ministers cannot sit in the Judiciary and interpret the law. There is not, however, such a strict separation between the Executive and the Legislature, as the Executive sits in Parliament as well.
The reason that the American courts are so important is because their job is to uphold and
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.
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.