Essay on the Role and Independence of the Judiciary


Essay on the Role and Independence of the Judiciary


Since administration of justice is the exclusive func­tion of the modern state the judiciary today occupies the pride of place among the organs of the government. It is the watchdog of the rights and liberties of the citizen.


An adequate political theory must, therefore, take into account the constitution and functions, and other important problems connected with the judicial organ.

Developments of Thought:

The judiciary and the courts in any society are in a continuous process of change and transition. At one time the courts were viewed as an institution for dispute resolution entrusted with the task of “declaring” the law.

Today, it is widely acknowledged that the judiciary performs the functional of lawmaking; and that it is a branch of the government, playing a constitutional role of no less significance than other political branches of the government. The role of the courts in society has changed in a number of respects.


It is clear that challenges facing the judiciary have become more demanding, judicial duties have become more burdensome and the judicial role in society has expanded.


As democracy necessarily implies popular control of the institutions of government, complete independence of the judiciary may seem to be apparently impossible and undesirable. Still, however, the very nature of the judicial function entails independence of the judiciary.

Justice which is the soul of the state must be administered without fear or favour. Integrity impartiality and wisdom are some of the high qualities which should characterize the judicial mind obviously; therefore, the vital need is to properly organize the judiciary.


The primary function of the courts within any society is the resolution of disputes. At the- heart of the judicial system lies the premise that self help by force is unacceptable so that parties who are unable to solve their dispute amicably may bring, it before the court for an impartial settlement.

This basic scheme of dispute resolution mechanism promotes good government and an orderly society and ultimately, toy resolving disputes and redressing violation of rights, the courts serve to develop new law and enforce existing laws.

In addition to the resolution of disputes, the courts also help to shape the society by pronouncing innovative and creative judgments. The courts perform important function of educating and reprimanding the parties before the court, and on occasions, the general public and the social and political institutions.

The impact of the system of the court extends beyond the immediate parties to the cases- The very knowledge of the existence of the judicial system influences the conduct of the members of the society in business as well as personal relation­ships.


This impact of the law has been referred to the “shadow of the law, judicial decisions are thus able to shape societal ideas and mores, to create laws, as well as to resolve specific disputes.

The courts resolve many types of disputes. In civil cases, the courts have to determine the rights and duties of citizens. Civil law governs the relations be­tween private citizens and private organisations and defines their legal rights.

In contrast, in constitutional cases, the courts determine the rights and duties of individual citizens, and the duties, powers and immunities of the government or branches of government, as set forth in the laws and the constitution of the land Constitutional law defines the state’s political organisation and powers, imposing substantive and procedural limitations on the state’s exercise of its governing power.

The resolution of a constitutional dispute may have a very broad impact on society. In criminal matters, the courts are asked to pass judgment on dis­putes when society’s organised machinery of sanction is set in action against law violators.


The role of courts in society is shaped by the nature of disputes brought to the courts for resolution. It is also dependent on a host of other factors. The individual inclinations of judges and the collective traditions significantly influ­ence the role of courts in society.

The role of courts in different societies depends also on the system factors prevailing in each society. The system factors include the nature of the constitution at system of that society and other circumstances prevailing at the time.

In a society such as that of the United States, the judges are vested with broad powers as arbiters and interpreters of a set of values which are encompassed in the written constitution, the provisions of which are stated general terms.

In such a system, the scope of the judicial function is wider than other societies which do not bestow upon the courts the function of institutional arbitration.

As Justice Cardozo states, “a constitution states, or ought to state , not rules for the passing hour, but principles for the expanding future, Hence, in such a system, there is more room left for judicial innovation and creativity.

Depending on a society’s system factors, the scope of the judicial role may range between two ends of the spectrum far apart: on the one end, judicial self restraint and excessive judicial deference to executive policy, and on the other, judicial activism and a wide scope of the judicial role, such as setting standards for prison administration, determining voting regions, administering school bus plan, administering estates, and overseeing the reorganization of business.

The role of the courts in a society may be shaped by legislative action or inaction. Where the legislature is diligent and expeditious in adopting the law to changing economic and social conditions, the role of the judiciary will be more limited.

The courts will not be faced with new problems or major policy issues unforeseen by the existing law and requiring innovative judicial decision-mak­ing.

Generally, legislatures are slow to introduce law reforms to ensure that the law adapts to changing times and changing social and moral norms. This may be due to the preoccupation of the legislature with political problems and a lack of interest in legislative reform in areas where no political pressure can be exerted.

It may also be due to reluctance of the legislature to resolve political questions and its avoidance of being held politically responsible for their resolution.

Courts may have to deal with problems involving political and social issues where the political institutions have failed to resolve those problems in the or­dinary political process.

The legislature of the executive may shirk its political responsibilities by passing on such questions to the courts. As Sir Ninian Stephen put it, “elective bodies have much to fear if they have to decide such issues for themselves; wise politicians may well prefer to avoid the issue for fear of politi­cal backlash”.

Public expectations of the judicial role in society may influence the judges’ perception of their role and may consequently influence their actual role in society. Public debate on judicial role and judges may help judges in understand­ing the public expectations of them.

The recent decades have witnessed the constant trend of the expansion of the judicial role in society. The increasing judicialisation has been the result of a number of factors and processes.

Among these, one is the expansion of the welfare state. Primary and secondary legislation have been enacted to regulate the rights and duties of citizens and government authorities.

This legislation has led to a corresponding expansion in litigation against government agencies, as well as the development of social rights, a typical by product of the welfare state. The increased judicialisation of society has also been brought about by the use of collective procedures (such as the class action).

These procedures contributed to the “classification” of the law and the legal process. In addition, industrialization has also increased the judicialisation of society.

Not only has there been a substantial increase in the judicialisation of so­ciety, but there have also been changes in the functions of the courts. The tra­ditional function of the court is dispute resolution, described as a “bipolar contest between two interests to be resolved on a “winner-takes-all” basis.

The right and remedy are integrally related, with the compensation being derived from the harm caused by the wrong which gave rise to the cause of action. The traditional model of litigation is that of “a self-contained episode” with the impact of the judgment limited to the parties before the court.

This traditional function has somewhat changed; courts have begun to take a more active role in policy-making at many levels.

The expanded judicial role has entrusted the courts with what has been termed “structural reform,” where in place of individual plaintiffs and defendants, the whole political and social in­stitutions come before the court.

The increase of concern in consumer issues, environmentalism and civil rights has led to an increase in legislation, a rise in the number of administrative agencies and the volume of regulations, interference with the internal proceed­ings of the Parliament.

It could be said that the intervention of the court becomes just another policymaking, political act by a political actor, as some writers suggest.

How­ever if the first duty of the court is to administer justice and to enforce the law, then it has to act in order to assure that no government agency can violate the law.

In certain instances, the existence of a crisis may change the role of the courts in a particular society. For example, in the case of Italy, the terrorism of the extreme right and the extreme left which has continued for over two decades has altered the character of Italian judges.

In the past they were known for their restrained opinions, and lack of desire to become involved in political issues. The exploits of the Red Brigade led to a split in opinion amongst the judges, a sizable minority seeing their role as that of protector of the downtrodden, and a countervailing force to governmental and industrial powers.

The opposition to terrorism has led to a hawkish attitude in many judges. In South Africa, the emergency situation has generally had the opposite effect, with South African judges feeling that it is unbecoming to be involved in political issues. However, there has been a bolder response by the courts in regard to emergency detention regulations.

In situations where the legislature leaves questions undecided, courts must fill the gaps with independent standards. As an illustration, under Labour Laws in Germany there is less codification so that there is more room for judicial developments.

In crisis times, the role of the court is to create new rules. They must be creative in crises because they cannot appeal to the majority to legitimize their decisions, where no stable, obvious majority exists.

The importance of the high personal and professional standards of the people selected to sit on the bench has always been recognized as a prerequisite for the proper administration of justice and for maintenance of the rule of law. Jewish

Law places the emphasis on ethical standards rather than on intellectual qualifi­cation. As Professor Shilo points out, Maimonides enumerates some qualities which a judge must have; wisdom, fear of God, disdain of money and love. In the United States, there have been a number of cases in the environmental area where the courts have had to decide on difficult issues. In the case of Tennessee Valley Authority v. Hill, the Tellico Dam was closed down on the ground that its operation might endanger a certain rare, endangered fish.

There is also a torrent of litigation raising issues of public concern, known as extended impact cases, or structural litigation.

These cases are characterized by lengthy trials, resulting in remedies requiring protracted judicial supervision and affecting large numbers of people. Frequently, there are determinations on public law issues.

The trend of shifting policy and administrative decisions in environmental and other areas from the executive to the courts is not confined to common law systems with a written Constitution, such as of the United States.

As Professor Arenas has reported, the same trend prevails in the Federal Republic of Germany’s civil law system. Likewise, as has been noted by Justice Aharon Barak the same is true with regard to Israel, a jurisdiction without a written Constitution.

The use of tribunals of inquiry and commissions or committees chaired by judges to inquire into political controversies and industrial dispute in England, Canada, Australia and Israel, is another illustration of the judicialisation of politics, which in turn brings about, to a certain degree, the politician of the judiciary.

The greater judicialisation of society and the increasing number of cases coming before the courts have led to a search for ways to expedite judicial procedures, without sacrificing justice in the individual case.

In the struggle for greater efficiency, the judge’s role has become that of a manager heading a team of law clerks and secretaries with his responsibilities shifting to a certain extent from the adjudicatory to the supervisory.

Greater attention is being paid to judi­cial mediation, alternative dispute resolution methods and to introducing mea­sures of making the adjudicative process more efficient and less costly.

An examination of the law and practice of various countries concerning issues which have a bearing on judges and judicial independence reveals differ­ences and even conflicts.

These differences sometimes result from differences in concepts and perceptions, and sometimes stem from historical reasons or diver­sity of circumstances, including a lack of initiative to review old practices and introduce reform.

In the recent years, the problem of judicial independence has been high­lighted by numerous incidents of violation and of challenges to judicial indepen­dence in many parts of the world.

These violations and challenges took different forms and occurred in countries with different systems of government. They included the adjudication of politically charged cases; the question of judicial review of legislation; and judicial role vis-a vis the legislative branch; times of crisis and the rule of law; judicial creativity in times of crisis; the limits on judicial conduct; and judicial selection; and the principle of fair reflection.

Judicial review of legislation is a phenomenon which has grown rapidly in Europe and elsewhere, particularly since the Second World War. Its growth has been seen in many countries at the national level.

It has also grown on the transnational level with review of national legislation and its conformity with Community Law being undertaken in many states of the European Community, and on the international level within the framework of the European Human Rights Convention.

The problem that is raised by judicial review is the question of its legiti­macy. As Professor Cappelletti has put it, the concern is not merely a problem of the procedural legitimacy of review as a process of controlling the conformity of one legal norm with another, but its lawmaking results with democratic values.

The question touches upon the democratic legitimacy of judicial review and not its formal procedural legitimacy.

Review of legislation is undoubtedly needed in order to ensure the effective­ness of a Constitution and make it binding on the political branches. In order for the review power to be effective it can only be entrusted to those who are unaccountable for their substantive decision making to political power that is the judges.

Some have advocated caution in the approach to judicial review. It is recognized, even by its advocates that it leads to the inevitable politicization of the judicial branch.

One must further admit to the paradox that “to affirm the necessity of judicial review we start from the premise that uncontrolled power is subject to perversion, but then we entrust the power of review to persons and bodies not subject to control.”

But, in spite of this paradox, as long as there are constitutional judges to act in order to enforce fundamental freedoms, one cannot deny the democratic legitimacy of judicial review.

There are interrelations between the judiciary and the legislature. When a problem remains unresolved by legislative enactment, the courts have to fill the vacuum. On many occasions, the legislature is unwilling to deal with particular issues, and it is left to the courts to deal with these matters.

To illustrate legis­lative inaction it is possible to mention the question of legal aid for defendants in criminal proceedings. In England, the Legal Aid Act of 1949, extending earlier legislation, provided legal aid for defendants, and the legal aid scheme was extended to cover wide areas, including office consultation.

In the United States, on the other hand, the legislature did not act to resolve this question and it was left to the courts to establish the constitutional right to counsel in criminal proceedings.

Situations of crisis may force judges to question the way they look at their institutional responsibilities. By uphold the rule of law in such situations; they are protecting their own role. In a case in South Africa. Morley v. Minister of Law and Order, the judges construed harsh security laws restrictively to reduce their drastic effect.

A view has been put forward that this was indicative of a new approach by the judges in South Africa. By upholding the rights of individuals against the executive in such a way, they are preserving the jurisdiction of the court in the face of sweeping ouster clauses relied upon by the executive.

The principle of fair reflection is both positive and negative in nature it imposes (in those participating in the selection of judges a duty to ensure that the judiciary is reflective, and must avoid a situation of a narrow composition of the judiciary.

The approach advanced by Professor Mckay and Professor Redlich, on the other hand, is of a negative nature only. The Senate may legitimately reject the President’s nominees if they belong to the narrow ideological philosophy shared by the President.

Since the advancement of this thesis of the principle of fair reflection its validity has been further strengthened. It is strengthened by the contemporary controversy instigated by the rigorous appointment policy of Presi­dent Reagan, consciously selecting believers in the narrow constitutional inter­pretation (“original intention” doctrine).

This debate clearly supports the nega­tive part of the principle of fair reflection that the judiciary must not reflect one’s’ ideological inclination. The positive part of the principle is equally important and is the other side of the same doctrinal coin.

The detailed analysis of Justice Barak of the process of judicial reasoning clarified the importance of fair reflec­tion of the judiciary. As Justice Barak explains, judges decide cases upon back­ground understandings based on fundamental values of the system.

Those under­standings are judge-made and are based on the interpretation of the judge. If the judiciary is not reflective of society as a whole, the adjudication may be based on background understandings strongly colored by a narrower set of values.

The profound examination of the constitutional adjudication offered by Professor Neuborne provides further clarification of the sophisticated nature of the judicial process and the importance of the public official-the-judge-who is charged with the function of decision making.

The courts are under duty to provide fair and expeditious justice. The values of fairness and efficiency are sometimes in conflict and care has to be exercised to resolve properly this conflict.

The increasing workload of the courts raises the issue of the proper approaches to writing of judicial opinions as well as the policies concerning the publication of judicial opinions. It must be admitted that the existing practice of writing and reporting judicial opinions calls for careful revision.

Another aspect of the administration of justice which deserves careful atten­tion and critical examination is the use of law clerks at appellate courts.

The practice raises the serious issue of the appropriate boundaries of the delegation of judicial power to non-judicial staff, whose input into adjudication is internal and not subject to comments by the parties to the case. Judges and the public in general must be aware and take care of the doc- final and ethical problems involved in the present practice.

In the pursuit of fair and expeditious justice, those in charge of judicial administration have not placed sufficient emphasis on judicial mediation. Professor Marc Galanter emphatically advocates a greater role for mediation in the judicial process.

Modern computer technology can offer remedies to the long sanding problem of disparity of sentences, which introduces both unfairness and inefficiency to the administration of criminal justice.

In June 1983, The First World Conference on the Independence of Justice was held in Montreal, under the leadership of the Chief Justice at that time, Jules Deschenes.

The IRA Code of Minimum Standards had a significant impact on the text of the Declaration in several main areas: a) recognition of the concept of collective independence; b) emphasis on the vital importance of the administrative independence of the judiciary; c) recognition of the concept of internal judicial independence; d) restriction of executive power over the judiciary; e) encourage­ment of the idea that the judiciary should fairly reflect the society (proposed in previous IRA Drafts but not actually approved in the final text).

The development of an international code of judicial independence is of great importance. Numerous incidents of violations of judicial independence have been recorded.

Illustrations of such violations include suspension of the operation of the courts, transfer amounting to de facto removal, withholding of increases in judicial salaries, withholding sufficient resources and judicial per­sonnel from the courts, and the use of preemptive and retroactive legislation to prevent recourse to the courts or to reverse retroactively specific judicial deci­sions.

Against such a background, the development of international standards of judicial independence with the support of prestigious professional organizations and approval by the UN will have the most important dynamic effect on the enhancement of judicial independence.

The aim of the IRA Project was to develop international minimum standards of judicial independence, not necessarily to photograph or reflect the prevailing Practice in the world today. True, minimum standards are not the ideal, it is the most desirable standards which must not, exceed the bounds of feasibility and reasonableness.

It was hoped that the IRA Minimum Standards would serve as a catalyst for the introduction of necessary reforms with a view to assuring compliance with the Standards.

Among other things, the IRA Standards stress the importance of collective “dependence of the judiciary vis-a-vis the executive and the legislative, and the need for judicial autonomy in matters of judicial administration and courts bud gets.

They recommend selection committees for judicial appointments and stress the idea that judges are independent statutory officers of the state and not civil servants of the executive government.

The Standards call for security of terra of judicial office safeguards for adequate judicial salaries, and regular pay in­creases according to economic changes by a constitutionally protected proce­dure. The Montreal Declaration and the UN Basic Principles generally follow the IRA line of thinking.

The role of courts in society has changed in a number of respects. It is clear that challenges facing the judiciary have become more demanding, judicial du­ties have become more burdensome and the judicial role in society has ex­panded.

There is a very significant point which must be emphasized. The idea un­derlying the rule of law is lit at the society must be governed by law and not by men. Yet, it is men and women who have to operate the law in executive, legislative or judicial public offices.

Constitutions in many countries leave so many central issues unregulated or insufficiently provided for. It remains to the men who serve in executive and legislative office and as judges, chief justices and attorneys general to operate the constitutional system.

Hence, in matters of importance and particularly in crisis times, it is the men and women in govern­mental office who ensure the survival of the system of government and the protection of the basic values of the system.

A paradoxical trend is apparent in the world today concerning the approach to the judiciary. On the one hand, there are high expectations of the judiciary to adjudicate cases in more and more areas.

On the other hand, this high expecta­tion is not accompanied by a corresponding readiness to protect the judicial position and allocate adequate resources to the courts.

However, one should not disregard the international legislation regarding the independence of the judiciary which has made great inroads in laying down standards for protecting the judicial role.

It is important, too, to emphasize the interdependence between the indepen­dence of justice and the protection of human rights. In the last four decades, the international community has taken giant steps towards the crystallization of sub­stantive human rights.

They have been embodied in international treaties, global and regional, general and specific. Substantive human rights are worthless with­out an effective mechanism for their enforcement.

The enforcement of rights is assured by an independent and impartial tribunal. The establishment of clearly stated standards on the meaning of independence will enhance the promotion of human rights around the world.

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