Judicial Independence

Judicial independence is generally regarded as crucial to the rule of law and to stable economic and political change. Both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights list judicial independence as central to safeguarding human rights. The United Nations (UN), the Council of Europe (CoE), and organizations such as the American Bar Association promote judicial independence.

There is wide agreement that an independent judiciary has three basic elements, even though no consensus exists on a definition. First, the judicial system must be publicly perceived as impartial in rendering decisions. Judges should not have a personal interest, whether due to bribery and corruption, or as a result of political pressures, in the outcome of disputes between private parties and the government. Second, judicial decisions must be accepted and respected by the contesting parties and the larger public. Third, judges need to be free from undue interference from the parties in a case, other branches of government, and higher courts within a national judiciary.

Judicial independence, according to some studies, varies depending on the degree of party competition in a political system. Courts are often accorded little independence in single-party-dominated political systems, because the governing party expects to continue winning elections and to remain in power. Competitive two- and multi-party systems tend to favor greater judicial independence in order to preserve a party's legislative gains when out of office. In Japan, J. Mark Ramseyer (1994) argues, the dominance of the Liberal Democratic Party for most of the last half-century gave it control over judicial appointments and resulted in a deferential and dependent judiciary. But other scholars counter that the Japanese judiciary has a high degree of institutional independence, while individual judges enjoy little independence, because its career judiciary is overseen by an elite judicial bureaucracy. Still, in such constitutionally designated single-party states as the Lao People's Democratic Republic and Vietnam, courts and judges are closely monitored by the ruling political party, which may reverse or reprimand judges for their decisions.

Other scholars find a strong association between federalism and the strength of judicial review in countries such as Australia, Canada, India, and the United States. These countries are among the geographically largest and have decentralized judiciaries that share a common law heritage. By contrast, one of the smallest and strongest federal states, Switzerland, prohibits judicial review; in the United Kingdom, which has no constitution and until recently no supreme court, individual judges are nonetheless considered independent.

It is often assumed that constitutional provisions for judicial independence must be made, such as those in the U.S. Constitution stipulating that federal judges' salaries may not be diminished, and that they may not be removed from office except through impeachment by the House of Representatives and conviction by the Senate for high crimes and misdemeanors. Most Central and Eastern European countries, along with South Africa, have similar constitutional provisions. According to some scholars constitutions that provide for more than one of several guarantees—guaranteed terms in office, fiscal autonomy, enumerated judicial qualifications, the finality of judicial decisions, and the separation of powers—tend to strengthen judicial independence and protection for human rights. But, other scholar found that actual (in contrast with formal provisions for) judicial independence also increases the probability of human rights protection.

Constitutional provisions for judicial independence, however, do not necessarily ensure an independent judiciary, as evident in the experiences of Third World and a number of Central and Eastern European countries. Constitutional provisions are no guarantee because they are subject to interpretation and manipulation. Moreover, Israel, Sweden, and New Zealand do not have constitutionally entrenched provisions for judicial independence, yet their courts exercise considerable autonomy.

fast facts

The American Bar Association (ABA) is the largest voluntary professional association in the world, with over four thousand members in 2005.

Measuring judicial independence remains difficult for a number of reasons. In the first place, judicial independence is a relative, not an absolute, concept. It is not an unqualified goal. Since judges and courts provide public services, their independence always must be balanced with competing demands for accountability and responsiveness.

Judicial independence is, therefore, a relative ("more or less"), not a dichotomous ("yes or no") variable. Measuring judicial independence and comparing judicial independence around the world would require combining different elements into a composite index. But those elements are not easy to classify and do not necessarily move in the same direction. Assigning relative weight to each thus remains difficult. Research has found that raising judicial salaries for judges in South America, for instance, did not necessarily increase judicial independence. Moreover, the degree of judicial independence in most countries varies considerably between higher- and lower-court judges. It also may vary depending on the type of litigation, from routine traffic cases and other civil suits, to criminal cases, and to fundamental issues of constitutional law.

In addition, measurements are difficult due to the fact that judicial independence is multidimensional and multifaceted. There are, in turn, multiple sources and targets for strengthening or weakening judicial independence. As a result, no agreed upon model or precise set of institutional arrangements for ensuring judicial independence exists.

institutional and individual judicial independence and sources of dependency

It is generally agreed that judicial independence has two broad dimensions. It embraces the institutional independence of the judicial system as a whole, on the one hand, and the independence of individual judges in their decision making, on the other. There is no necessary correlation, though, between a high or low degree of institutional independence and a high or low degree of individual judicial independence.

Judges in countries as diverse as Australia and Russia have confronted considerable, if not almost overwhelming, political pressures on their judicial systems, yet continued to maintain their independence. In contrast, in Japan and some other countries, the judiciary enjoys a high degree of institutional autonomy, but the independence of individual judges is constrained by controls within the judiciary itself.

In general, individual judges' dependency appears more likely in civil law countries with career judicial systems, as in France, where a legal bureaucracy oversees the training, promotion, and remuneration of judges. Individual judicial independence appears to be greater in common law countries, where generalist judges are appointed from a range of legal backgrounds and a decentralized judicial structure exists.

The extent of a judiciary's institutional independence and individual judges' independence depends on the sources of control and influence brought to bear on each. There are both external and internal sources of control and influence over courts and judges.

External sources of dependency are other branches of government and the forces of non-governmental organizations (NGOs). They may exert a variety of pressures on courts, judges, and judicial administration. Obviously, courts are vulnerable to governmental bodies that create and may modify, even destroy, them. Judges everywhere are subject to political forces aimed at influencing the outcome of adjudication.

However, no necessary relationship exists between judicial independence and the external sources and mechanisms of influence and dependency. Governmental and non-governmental forces, such as the media, interest

groups, and legal and civic organizations, may present threats to, but also provide support structures for, judicial independence. In many countries, nongovernmental forces, especially the media, have increasingly targeted judges and courts. Judges have resigned or been forced into early retirement due to high-pressure media campaigns, in developing courts and even well-developed democracies like Australia, Germany, Israel, and England. However, in Italy, Nepal, Spain, and some other nations, courts have been strengthened by the support of the media, bar associations, and judicial councils, which have staunchly opposed judicial and governmental corruption.

Within a national judiciary, internal mechanisms of influence and control may be brought to bear on individual judges. Lower-court and even high-court judges' promotion, salaries, and resources for caseload management may be manipulated by the country's highest court or judicial bureaucracy. Internal sources of dependency are especially prominent in civil law countries with career judiciaries, as in Japan and Western Europe, as well as in countries where the judiciary is part of the civil service. Internal sources of judicial dependency are generally less influential, although not always, in more decentralized, common law judicial systems, particularly where judges are recruited from outside the judiciary and there are relatively strong external political controls over courts.

In short, the dependency and manipulation of judges and courts may arise either from external pressures (whether political, economic, or institutional) or from forces operating internally within a national judiciary. Some form or combination of external and internal influence is present in all judiciaries. Furthermore, some kinds of external control are considered unacceptable in some countries but not in others, and likewise with internal mechanisms of influence and control. Judges in common law countries, for instance, generally consider judicial independence to be compromised by the manipulation of judicial promotions, resources, and salaries in civil law career judiciaries. In any event, it is unrealistic to expect courts and judges to be "totally uninfluenced." Judicial independence is nevertheless most at risk when either external or internal forces undermine a judge's or judiciary's capacity to adjudicate as an impartial third party in a fashion acceptable to the contesting parties and to the general public.

targets of influence and judicial dependency

Courts and judges may be targeted by external and internal sources in multiple ways. The principle targets are:

1. The structure and jurisdiction of courts
2. The selection, appointment, and promotion procedures
3. Tenure and removal mechanisms
4. Remuneration and resources for court administration.

Each of these dimensions conditions the relative independence of judges, collectively and individually, from other institutions and from other judges.

The structure and jurisdiction of courts reflect each country's unique political and legal histories. Common law countries tend to have more decentralized judicial structures than those in the continental civil law tradition. Many countries in Africa and Asia, due to colonization, combine elements of one or both traditions with socialist and indigenous legal cultural traditions. Vietnam, Cambodia, and Laos, for instance, combine elements of the French civil law system with socialist and culturally indigenous elements, while Indonesia bears the imprint of Dutch colonization. Indonesia, Israel, and most countries in the Middle East also have separate religious courts, along with specialized courts for the military and other kinds of disputes.

Judicial independence varies with the jurisdiction of courts and access to judges, litigation rates and caseloads, the ratios of judges and lawyers to the general population, and the transparency of a judicial system. Obviously, judicial independence is compromised when courts are abolished, reorganized, or have their jurisdiction altered by other political branches in retaliation for their rulings.

Recruitment and promotion procedures are important for both securing judicial independence and balancing it with demands for judicial accountability, as well as for promoting public confidence in the courts. Judicial independence and accountability, however, may be secured through a variety of institutional arrangements for recruiting judges. In general, countries with career judiciaries tend to promote the institutional independence of courts. At the same time, career judicial systems usually lodge a great deal of control in the chief justice, judicial service commission, or legal bureaucracy, which in turn may constrain and punish individual judges.

Within unitary judicial systems, the degree of judicial independence may also vary with the level of court and, regardless of the prescribed constitutional or legal guidelines, the actual practice in selecting, appointing, and promoting judges. In some constitutional monarchies, such as Nepal and Cambodia, for instance, the king appoints judges but, in fact, only on the recommendation of the chief justice, bar leaders, or political parties. There are also basically two different kinds of career judiciaries, and each affects the independence of judges differently. On the one hand, most countries in Western Europe, along with countries such as Japan and Thailand, have separate and independent career judiciaries. On the other hand, in other countries, such as Bangladesh, Singapore, and Indonesia, lower-court judges are part of the national civil service system and rotated to other positions within the government. Thus, they are rendered dependent on not only hierarchical relations within the judiciary but also those externally within the government and civil service.

Noncareer judicial selection and promotion procedures—whether through appointment by the executive, legislature, or some combination, as well as by partisan and nonpartisan elections—tend to promote judicial accountability to external forces. But they may do so at the price of limiting the independence of courts as a whole and of individual judges. In China and other single-party states, studies have nonetheless found that lower-court judges presiding over routine minor disputes may exercise considerable independence.

Judicial tenure and the mechanisms for disciplining and removing judges are as important as the judicial recruitment process for securing judicial independence. Tenure on the bench contributes to insulating judges from external pressures. Apart from career judiciaries, very few judicial systems give judges basically lifetime tenure, as enjoyed by federal judges in the United States. However, judicial independence need not be threatened by term limits or mandatory age retirements, as the independence asserted by constitutional courts in Western and Eastern Europe, and the European Court of Justice, illustrates. Indeed, such requirements may strike a better balance between judicial independence and democratic accountability than lifetime appointments. Very limited fixed terms for judicial office and mandatory early retirement ages may nevertheless undermine judicial independence, as appears to be the case in many countries in South and Southeast Asia, where in some countries judicial terms are limited to five to seven years.

Mechanisms for disciplining and removing judges are necessary for ensuring judicial accountability and preventing the miscarriage of justice due to impairments and disabilities on the bench. But, the standards and procedures range widely and in many countries lack transparency. In some countries, judges may be disciplined and removed only after conviction for a criminal offense, whereas elsewhere judges may be disciplined for political reasons and punished for their decisions. The authority for disciplining and removing judges varies as well. In some countries, the chief justice or judicial council has responsibility, while in others the executive or legislative branch is responsible. Judges in different countries are therefore exposed to different combinations of internal and external mechanisms of influence and accountability.

Judicial independence presupposes adequate and competitive remuneration. If not, the quality of the bench suffers and invites judicial corruption. Likewise, there must be adequate resources for the operation of courts—for courthouses, caseload management, record keeping, and making judicial decisions publicly available. If not, access to justice is delayed, often denied, and courts may be publicly perceived to be inefficient, ineffective, and lacking in prestige. Problems with providing adequate salaries and resources for court administration are most severe in developing nations in Africa, Asia, and Central and South America. Yet, even in more affluent countries, judicial independence may be compromised if judicial salaries, benefits, and budgets are not regularized and protected from reductions and retaliation from other political branches.

In sum, judicial independence is relative, multidimensional, and multifaceted. It varies widely around the world, but everywhere remains in tension with demands for judicial accountability.

See also: Civil Law; Common Law; Human Rights; Judicial Selection; Universal Declaration of Human Rights.

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David M. O'Brien