Independence of the judiciary (also judicial independence) is the idea that the judiciary needs to be kept away from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests.
Different nations deal with the idea of judicial independence through different means of judicial selection, or choosing judges. One way to promote judicial independence is by granting life tenure or long tenure for judges, which ideally frees them to decide cases and make rulings according to the rule of law and judicial discretion, even if those decisions are politically unpopular or opposed by powerful interests.
In some countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review. This power can be used, for example, when the judiciary perceives that legislators are jeopardizing constitutional rights such as the rights of the accused.
Constitutional economics studies such issues as the proper national wealth distribution including the government spending on the judiciary, which in many transitional and developing countries is completely controlled by the executive. The latter undermines the principle of powers' “checks and balances”, as it creates a critical financial dependence of the judiciary. It is important to distinguish between the two methods of corruption of the judiciary: the state (through budget planning and various privileges – being the most dangerous), and the private. The state corruption of the judiciary makes it almost impossible for any business to optimally facilitate the growth and development of national market economy.
Canada has a level of judicial independence entrenched in its Constitution, awarding superior court justices various guarantees to independence under sections 96 to 100 of the Constitution Act, 1867. These include rights to tenure (although the Constitution has since been amended to introduce mandatory retirement at age 75) and the right to a salary determined by the Parliament of Canada (as opposed to the executive). In 1982 a measure of judicial independence was extended to inferior courts specializing in criminal law (but not civil law) by section 11 of the Canadian Charter of Rights and Freedoms, although in the 1986 case Valente v. The Queen it was found these rights are limited. They do, however, involve tenure, financial security and some administrative control.
Full article ▸