Judicial Independence
The concept of judicial independence is recognized by almost all constitutions of the world and the basic reason behind judicial independence is to keep the judiciary liberated from every kind of influences by executive, legislative or any other force. The Chief Justice of Canada in a recent judgment explained the importance of judicial independence:"Judicial independence is valued, because it serves important societal goals - it is a means to secure those goals. One of these goals is the maintenance of public confidence in the impartiality of the judiciary, which is essential to the effectiveness of the court system. Independence contributes to the perception that justice will be done in individual cases. Another social goal, served by judicial independence is the maintenance of the rule of law, one aspect of which is the constitutional principle that the exercise of all public power must find its ultimate source in a legal rule".
The doctrine “separation of powers” suggests that all the parts of government i.e. legislative, executive and judiciary should work in their own periphery and should never try to interfere unnecessarily in the other’s jurisdiction. This arrangement assures that there is a balance of power among all the parts of government and no one should consider itself above the constitution of the land. The common perception in this regard is that if fair justice has to be done the judges, while delivering the verdict or during the trial should not be under influence of any body, whether it is any powerful individual, government, media, public opinion or any other power. Different provisions are made to keep the judiciary uninfluenced and independent in different countries by governments across the world. Since judiciary is a part of the government, scholars often put across that there is no any foolproof arrangement to keep judiciary uninfluenced especially by the other branches of the government. A number of suggestions, a number of debates and seminars have been organized by the constitutionalists to keep the judiciary out of influence by any sources.
In England separation of powers was not much visible till very recent times and it was perhaps due to lack of written constitution and monarchy but the system has been changed and a number of provisions are made according to the doctrine of separation of powers. British government provisioned a number of changes in the traditional system in the year 2003.
Rule of Law and Judicial Independence
The principle “Rule of law” is a basic rule that suggests that law of the land is supreme, everybody is equal and nobody is above the law of land. The principle says that law and the truth can be discovered but it can not be interpreted in favor of any particular with intention to benefit him or her. This is the rule of law that keeps an eye on the government and restricts its acts when government try to cross the limits ascertained by the law. Government or its agencies can work according to the settled law and prescribed procedures and in no way can interpret the rules according to their convenience or interests.
The principal of Rule of Law was extensively elaborated by Albert Venn Dicey, a British jurist and thinker who said that Rule of Law is bedrock of the British Legal System, according to Dicey-
a. A person can be punished for his acts, if contrary to the law by a competent court of law only.
b. Everybody is equal before the law, irrespective of his economic, social or political status.
c. Rights given by the constitution to the individuals should be provided to them and not on the papers only but in practicality.
After observing the concepts of judicial independence and rule of law, it is very explicit that if the rule of law has to be established in any society, the idea of judicial independence is absolutely essential. The moment, judicial proceedings are influenced or interfered by any source, the rule of law is breached then and there. Any interference or influence in the judicial proceedings by any body breaches the guarantee that is assured to a common man by the rule of law that all people are equal before the law. The reason is that the person in whose favor the law has been interpreted, considering his interest has not been treated equally by the law of the land.
Constitutional Reform Act 2005
Constitutional reform act 2005 was passed in the year 2005 by the British parliament and came in force in the year 2006. This was the biggest step taken by the British parliament towards judicial independence. Need for such regulation was felt by the English for a long time and finally it came into effect. There is no doubt that this law will finish the scope of all kinds of interference from the politicians and other effective sources on the judicial proceedings. Let us have a look over the provisions of constitutional reform act, 2005 and how they terminate the scope of any influence or interference in the independence of judicial proceedings in England.
a. Ministers are barred to influence the judges; they can not interfere in the judicial proceedings directly or indirectly. All the special access to judges has been terminated. The responsibility to maintain the independency of judiciary has been put on the shoulders of ministers and in case such efforts or instances occur, they will be held liable.
b. The post of Lord Chancellor has been terminated and according to new provision all the powers vested in the Lord Chancellor have been transferred to the lord chief justice who is also the president of the courts of the England and the Wales. In new system all the powers of deployment, training and guidance have been given to the lord chief justice who has the power to express his views on the behalf of judiciary of England and Wales.
c. As per the provisions of this act, a new independent Supreme Court has been established. Supreme Court will be looking after recruitments, budget, maintenance and other factors related to it and there will be no interference in this affair from any other body.
d. Provision for a new and independent judicial commission has been done in the new act. This commission will be responsible for maintaining the quality in the candidates who are to be recommended for judicial services by this body.
e. Arrangement of a judicial ombudsman to look into the quality of judicial services and complaints related to judiciary within the scope of provisions of constitution.
After having a complete study on various aspects of constitutional reform, act 2005, it is not difficult to understand that this act has played a very important role in the judicial independence in the England.
Works Cited
Bingham, Tom. The Rule of Law. London: Penguin Books Ltd., 2011.
Cheryl Saunders and Katherine Le Roy. The rule of law. Sydney: Federation Press, 2003.
Daniel C. Prefontaine, Q.C. and Joanne Lee. "The Rule of Law and The Independence of The Judiciary." 7 December 1998. icclr.law.ubc. 31 October 2011
"Judiciary of England and Wales." judiciary. 31 October 2011
Shimon Shetreet and Jules Deschenes. Judicial independence: the contemporary debate. Dordrecht: Martinus Nijhoff Publishers, 1985.
