Contents
Shimon Shetreet, 'The Struggle
for Judicial Independence'
Sir Nicolas Browne-Wilkinson,
'The Independence of the Judiciary in the 1980s'
Sir Ninian Stephen, 'Judicial
Independence – a Fragile Bastion'
Sir Guy Green, Chief Justice of
Tasmania 1973-1995, 'The Rationale and Some Aspects of Judicial Independence'
W R Lederman, Professor of Law,
Queen's University, Toronto, 'The Independence of the Judiciary'
Eric Colvin, 'The Executive and
the Independence of the Judiciary'
Kate Malleson, The New Judiciary The effects of expansion and activism.
1999 Ashgate, Aldershot
David M O'Brien. Judges on Judging: Views from the Bench. 2nd
ed, 2003, Chatham House Publishers
A collection of personal views of judges on the judicial process, the
function of judging and the role of the courts.
Aharon Barak, Judging as a Way of Life
<http://www.legal affairs.org/issues/May-June-2002/feature_barak_mayjun2002.html>
In a lecture to the Canadian Supreme Court, the Hon Justice Aharon Barak,
President of the Supreme Court of Israel, discusses the role of the
court. He says it is 'not to capture the mood of the day, it is to express
the deep values of society expressed in its basic legal documents, traditions
and history'.
Shimon Shetreet, 'The Struggle for Judicial Independence', Judges
on Trial: A Study of the Appointment and Accountability of the English
Judiciary, North Holland Publishing Co, 1976
Judicial independence – separation of powers – history
Professor Shetreet sets out the English legal history of the concept
of independence of the judiciary from the early Stuart period to the
Act of Settlement of 1701 and on to the 18th and 19th centuries. He
makes reference to the many famous clashes between judiciary and executive
and judiciary and parliament during these periods, briefly describing
the circumstances of each and their outcomes. The three way battles
for power between Crown, parliament and judiciary are also described.
The chapter is comprehensive in its references to historical sources.
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Sir Nicolas Browne-Wilkinson, 'The Independence of the Judiciary
in the 1980s'(1987) Public Law 44
Independence of judiciary – institutional independence –
administrative and financial autonomy – right to fair and expeditious
trial
The English Vice Chancellor presented this speech to Lincoln's Inn in
1987 at a time when he thought the institutional independence of the
judiciary was under challenge from reduced government funding and an
upsurge in rates of crime and civil litigation. He refers to documents
suggesting that the executive is answerable to parliament for the conduct
of legal proceedings and insists this is a judicial responsibility.
English experience after the Beeching reforms in 1969 is discussed,
along with different methods of court governance used in the US federal
courts and the federal and South Australian courts in Australia. The
author's key point is that, although judges must accept that there may
not be sufficient funds to meet all their needs, the judiciary must
remain responsible for the planning and administration of courts.
Links:
The Honourable Mrs Justice Susan Denham, Supreme Court of Ireland, 'The
Diamond In A Democracy: An Independent, Accountable Judiciary Keynote
Address to Annual Conference of The Australian Institute of Judicial
Administration, Darwin, Northern Territory, Australia, 14-16 July, 2000
http://www.aija.org.au/publications.htm
The Honourable J J Spigelman AC, Chief Justice Of New South Wales,
'The Maintenance Of Institutional Values', Colloquium, Research Library
Futures: Strategies For Action, State Library Of New South Wales, Sydney,
17 May 2002
http://www.lawlink.nsw.gov.au/sc\sc.nsf/pages/spigelman_170502
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Sir Ninian Stephen, 'Judicial Independence – a Fragile Bastion',
Ch.49, Shimon Shetreet and Jules Deschenes (eds), Judicial Independence:
the Contemporary Debate, Martinus Nijhoff, 1985
Sir Ninian Stephen was a judge of the Supreme Court of Victoria 1970-1972,
a justice of the High Court of Australia 1972-1982 and Governor General
of Australia 1982-1989. Sir Ninian reminds us that 'an independent judiciary
is in itself no sufficient guarantee of liberty or of the rights of
minorities' because the courts' responsibility is limited to interpreting
and applying laws made by parliament. Only a parliament which by its
laws respects liberty and minority rights can ensure democracy. He concludes:
'Within its own modest limits judicial independence conduces to the
free society'. The author considers two challenges to judicial independence,
the first is the activist judge committed to reforming the law, and
the second is the view that judges should feature in a new role as interpreters
of broadly expressed guarantees of human rights. Judicial independence
may also be affected when the courts' jurisdiction is diminished by
the assignment to special tribunals of areas sensitive to government
policy. Although an independent judiciary is 'a formidable protector
of individual liberty, it is at the same time a very vulnerable institution,
a fragile bastion' because of its dependence on the other branches of
government for its financial and material support. In Sir Ninian's view
'what ultimately protects the independence of the judiciary is a community
consensus that that independence is a quality worth protecting'. He
believes 'community consensus supporting the independence of the judiciary
may be less easy to maintain in the face of either highly activist judicial
law-making or of judges entrusted with the interpretation and application
of entrenched guarantees of human rights'.
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Sir Guy Green, Chief Justice of Tasmania 1973-1995, 'The Rationale
and Some Aspects of Judicial Independence' (1985) 59 Australian Law
Journal 135
Judicial independence – definition – impartial decision
making – judges as custodians of the law - absolute independence
unattainable – but balance towards ultimate judicial control
Sir Guy Green puts forth the view that judicial independence is not
'a principle of self-evidence validity'. 'Its validity is derived from
the fact that the maintenance of judicial independence is a necessary
condition of the existence and the maintenance of other values and constitutional
principles which are regarded as being fundamental'. The judge's functions
are to decide individual cases, independently, and to act as a custodian
of the law. Impartiality must be assured to fulfill the first function,
particularly when judges are required to make value judgments, such
as reasonableness, fairness and justice. In exercising judgment the
judge must apply values 'ultimately derived from those prevailing in
the community'. This is not just the application of public opinion.
The judicial function as custodian of the law is 'essential to the maintenance
of parliamentary democracy and the rule of law'. Neither can exist without
an independent judiciary. Sir Guy considers two areas of law tending
to protect the courts from interference; these are security of tenure
and the inherent jurisdiction which gives the courts powers to protect
themselves from interference. However, he hedges his recommendation
for establishment of a procedure for effective communication between
the judiciary and the other branches of government, with the reservation
that the existence of such a procedure should not be viewed as either
obligatory or in derogation of the courts' right to communicate as it
chooses. Relations between the branches of government are considered
by reference to court accommodation, staffing and financial control,
Sir Guy's view being that they must all remain under the ultimate control
of the judiciary.
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W R Lederman, Professor of Law, Queen's University, Toronto, 'The
Independence of the Judiciary' Allen M Linden (ed), The Canadian Judiciary,
1976
Judicial independence – individual and collective independence
– a democratic process
Professor Lederman explains his purpose as being 'to explain the essential
positive functions of an independent judiciary as an integral part of
our total constitutional system'. This involves examining relations
between the three arms of government and the institutional arrangements
to ensure independence. He looks first at the English and north American
legal history, then at what he calls 'the essential operational elements
of judicial independence' which fall into two groups: the individual
and the collective. In respect of individual independence Prof Lederman
looks at the terms of appointment of the judge, as independent of the
civil service and of parliament, and autonomous, although a minister
of the crown might appear in court and argue for a result preferred
by the executive and parliament might legislate to override the decision
of a judge. Collective responsibility concerns the role of the judiciary
in ensuring the effective operation of the judicial system. He then
examines the systems for control of the courts themselves, describing
the supervision of inferior courts by the higher courts and the judicial
restraint required to ensure the integrity of the higher courts' conduct.
His conclusion is that the courts are neither undemocratic or anti-democratic,
the statutes of the elected legislature prevailing if worded effectively.
If ambiguous in intent the citizen can challenge the statute's interpretation
in court. Prof Lederman leaves the question of judicial law making for
later discussion in the edited work.
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Eric Colvin, 'The Executive and the Independence of the Judiciary'
(1986-87) 51 Saskatchewan Law Review 229
Independence of judiciary from executive – no public scrutiny
– developments in Canada – difference between independence
and impartiality – changing meaning of judicial independence –
Valente v The Queen
There has been a 'Janus-faced' approach to judicial independence, the
independence of the judiciary is lauded but no protections are offered
to secure it from the executive. Interference from executive government
presents the biggest threat to judicial independence, because it is
away from public scrutiny. Three developments in Canada are reviewed:
the establishment of judicial councils, judicial campaigns for greater
independence and the guarantee of independence in criminal cases in
the 1982 Charter of Rights and Freedoms. Colvin describes an increasing
lack of confidence in traditional safeguards of judicial independence
through constitutional convention and the growing demand for constitutional
protection. Those concerns are discussed by reference to the relationship
between the judiciary and the executive. The decision of the Canadian
Supreme Court in Valente v The Queen [1985] 2 SCR 673 is reviewed.
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