This essay studies the importance of judicial independence and impartiality, and the role played by these characteristics in the Australian judicial system, especially in a parliamentary democracy based on the rule of law.
According to the Encyclopaedic Australian Legal Dictionary, judicial independence means that the courts and the judicial system are free from direction, control, or interference in the exercise of judicial powers, by either the legislative or executive arms of the government; in constitutional law, it is the principle of protection of the judiciary from interference by the executive and legislative branches of government, through constitutional checks and balances in a system of government based on the separation of powers doctrine. 1
Impartiality and judicial independence are similar in many aspects. In his address to the Annual Meeting of the Canadian Bar Association in 1994, Chief Justice Lamer said:
‘Judicial independence is, at its root, concerned with impartiality, in appearance and in fact. And these, of course, are elements essential to an effective judiciary. Independence is not a perk of judicial office. It is a guarantee of the institutional conditions of impartiality.’ 2
Judges are to do right by all persons, without fear or favour, affection or ill-will. The existence of parliamentary democracy and the rule of law are dependent on an independent judiciary. 3 This is supported by several established arrangements, which reassure society of the impartiality of judges. In order to maintain this impartiality, members of the judiciary must be free from the influence of other parties and external pressures; be it government parties, the executive, private litigants, the media, and self-interest groups – w...
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...nd’s courts to impartially settle disputes, deal with people who break the law, and determine the legal rights and obligations of individuals, business and government. The courts play a key role in upholding peace, order and good government – essential features of a civilised society.’ 12
Article 10 of the Universal Declaration of Human Rights 13 states that, ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’ In today’s modern society, it is of utmost importance that all judges are able to maintain their judicial independence and impartiality by remaining free from external pressures - which is supported by the doctrine of the separation of powers, in order to provide a fair trial to all, and to protect human rights.
In 1759, the Canadian Court Justice system was brought to Canada by the French. After the battle of Quebec, all of Canada then followed the English common law system except for Quebec 1. Based on my understanding and knowledge of N. Christie’s arguments and the Canadian court system, I believe that Christie’s criticism of modern legal system is fair and it effects our current court system today.
As members of society we are told that the law is a predictable and reliable entity which is applicable to all individuals, despite the differences. This statement encourages us to abide by the law, and entrust it to make decisions that are best for us as individuals and as a community. Due to the formalism of law, it must be emphasized that there is a need for a compassionate component, to even the playing field. One way the law incorporates compassion into its system is through the use of juries. Juries are a random, unbiased selection of people who will be asked to sit in a trial and decide a verdict of guilty or not guilty. The Canadian Charter of Rights and Freedoms guarantees that “a person accused of criminal activity ‘has the right
One of the key components of the rule of law is that the law should apply to everyone equally and fairly, whether, monarch, government or citizen (Ellis 2013). As A V Dicey believed, no one should be above the law and everyone should be subject to the rule of law (Ellis 2013). Within the rule of law, there are five vital components to the operations. These include fairness, rationality, predictability, consistency and impartiality (Hinchy 2015). Fairness and rationality ensures the rule of law applies to everyone including citizens and the government. Predictability pertains that if a law is broken, the consequences will be known. Consistency, warrants consistency that the rule of law is being applied to everyone the same. Lastly, impartiality, which is an individual that decides on issues to do with the law (Hinchy 2015). The rule of law maintains consistency and equality within nations, yet there are countries where the rule of law is not common practice (Ellis 2013). Overall,
Dahl conducted his study on the decision making of the Supreme Court and whether the Court exercised its power of judicial review to counter majority will and protect minority rights or if it used the power to ratify the further preferences of the dominant “national law making majority.” From the results of Dahl’s study he builds numerous arguments throughout his article, “Decision-Making in a Democracy: the Supreme Court as a National Policy-Maker”. In what follows, I will thoroughly point out and explain each of the arguments that Dahl constructs in his article.
Hamilton conceived the judicial branch as the weakest of the three governmental branches; however, it is an indispensable contributor to the system of checks and balances. The executive and legislative branches check the judicial branch through the President’s power to appoint justices and Congress’ power to establish lower courts. The judicial branch checks both the executive and legislative branches through judicial review, which was established by Marshall in the case of Marbury v. Madison. Hamilton also emphasized the significance of judicial independence from political influence of the two stronger branches of government in order to preserve separation of powers. This requisite independence of the judicial branch is achieved through life tenure for justices, which prevents them from being susceptible to political pressures. Article III of the Constitution pertaining to the Judiciary is very inexplicit regarding the powers of judicial branch; however, the uncontested establishment of judicial review has significantly strengthen its authority and it is undeniably an influential branch within the governmental system today.
The Judicial Branch is the balancing factor of the Government. It is the listener of the people of the US and it decides on all matters regarding the people. It "interprets the nation's law" (World Book 141). Being able to interpret the law gives the Judicial branch a special kind of power. One of which the Executive Branch and the Legislative Branch do not possess. The Judicial branch decides when a law has been broken, to what extent, and how to punish the criminal act. And that is what makes it the strongest branch.
Magleby, David B. "The Judiciary." Government by the Peopl. 2011 ed. Boston: Pearson, 2011. 378-90. Print.
The American Court System is an important part of American history and one of the many assets that makes America stand out from other countries. It thrives for justice through its structured and organized court systems. The structures and organizations are widely influenced by both the State and U.S Constitution. The courts have important characters that used their knowledge and roles to aim for equality and justice. These court systems have been influenced since the beginning of the United State of America. Today, these systems and law continue to change and adapt in order to keep and protect the peoples’ rights.
‘Law as integrity’ embraces a vision for judges which states that as far as possible judges should identify legal rights and duties assuming that they are created by the public as an entity, and that they express the public’s perception of justice and fairness. This requires Dworkin’s ideal of Hercules, a judge of ‘superhuman skill, learning, patience and acumen’, to ask whether his interpretation of law could form a part of a coherent theory justifying the whole legal system. Law as integrity stipulates that the law must express one voice. Judges must accept that the law is based around coherent principles about justice, fairness and procedural due process, in all new cases which comes before them in order to treat everybody equally.
According to Aristotle, "The rule of law is better than that of any individual”, suggesting every member of society, even a ruler, must abide by and follow the law. The rule of law is linked to the principle of justice, meaning that everyone within a society (including both private citizens and government officials) are subject to the law, and that those laws are administered fairly and justly. The intention of the rule of law is to protect against arbitrary governance. It is the basic underpinning of a free society. One of the features of the Australian constitution is that it is structured in a way that theoretically reflects the rule of law.
This exercises the idea of independence within ‘different functions of government’; it is represented by the legislature, the executive and the judiciary. Separating the three prevents a dangerous occurrence where power is entirely centralized in one group.... ... middle of paper ... ... Carl F. Stychin and Linda Mulcahy, Legal Methods and Systems, (4th edn, Sweet & Maxwell 2010).
This quote happens to express the deepest problem in a judicial system: justice is perceived differently, so extreme justice for one person can be extreme injustice for another.
Rackley, E (2010). In Conversation with Lord Justice Etherton: Revisiting the Case for a More Diverse Judiciary. Public Law
The grounds of judicial review help judges uphold constitutional principles by, ensuring discretionary power of public bodies correspond with inter alia the rule of law. I will discuss the grounds of illegality, irrationality and proportionality in relation to examining what case law reveals about the purpose and effect these grounds.
The judiciary should not only be impartial when dealing with cases but independent too. Whenever cases are being assessed, both impartiality and independence should go hand in hand to avoid