In Canada, Justice McLachlin noted that a period of considerable criticism of the courts after the Charter of Fundamental Rights was introduced in has increasingly given way to recognition of the value of judicial review for good governance.
Public confidence in the judiciary had been crucial to this growth and strengthening of judicial independence and the Rule of Law, and Lord Dyson and Justice McLachlin observed that, in general, the UK and Canadian judiciary also enjoyed public confidence as surveys had regularly found.
However, there was no room for complacency in a changing world. The panel discussed two current challenges of particular importance. First, how could the process for appointing judges maintain public confidence? The old UK and Canadian practice of appointing a judge with a 'tap on the shoulder', without open competition or parliamentary scrutiny of nominees, had become outmoded. Important changes included the introduction of judicial appointments commissions in the UK, and, in Canada, parliamentary hearings for Supreme Court nominees.
The US process of Senate confirmation, provided an important public "window" on judges who would serve for life, Justice Breyer confirmed. The second issue addressed by the panel was how judges should deal with criticism of their decisions, particularly when the critics were government politicians. Justice McLachlin acknowledged that it would be inappropriate for judges to respond to criticism by conducting a media campaign, but argued that they did have an obligation to set out the facts, and sometimes this would be enough to resolve a political controversy.
Nowadays, open-textured criteria of reasonableness, fairness, justifiability or proportionality are statutorily employed to cast on the courts the responsibility of forming value judgments that have, or might have, significant economic or social effects. Perhaps the independence that is most difficult for a judge to achieve is independence from those influences which unconsciously affect our attitudes to particular classes of people.
Attitudes based on race, religion, ideology, gender or lifestyle that are irrelevant to the case in hand may unconsciously influence a judge who does not consciously address the possibility of prejudice and extirpate the gremlins of impermissible discrimination. Such gremlins are not extirpated by mere declaration.
Indeed, too vocal a judicial protest of impartiality may bespeak an overreaction to prejudice in one direction by forming a prejudice in the other. Or it may indicate a failure to employ that worldly wisdom which permissibly takes account of differences that are relevant for some purposes but irrelevant for others.
Independence of the modern judiciary has many facets. The external factors that tend to undermine independence are well recognized by the judiciary but perhaps not so well recognized by the political branches of government or by the public.
Some of the structures that preserve independence are well established. I need not canvass the twin constitutional pillars of judicial independence - security of tenure and conditions of service that the Executive cannot touch - except to say this: if either of these pillars is eroded, in time society will pay an awful price.
Judicial independence is the priceless possession of any country under the rule of law. The public are entitled to insist on its observance by the judges and on its protection by the Parliament and the Executive. But in the ultimate, judicial independence rests on the calibre and the character of the judges themselves. Judicial independence is not a quality that is picked up with the judicial gown or conferred by the judicial commission.
It is a cast of mind that is a feature of personal character honed, however, by exposure to those judicial officers and professional colleagues who possess that quality and, on fortunately rare occasions, by reaction against some instance where independence has been compromised.
The importance of symposia of the kind which is now to take place is twofold: it confirms the ethos and the commitment to independence of the Australian judiciary and it reflects upon the means by which that independence can be protected and enhanced in the interest of the public whom we serve.
Justice is administered by human institutions; they can be fallible, but they should never be perverse. Being human institutions, continual vigilance is needed to ensure that they are isolated from impermissible influences and strengthened by the pressure of a peer group devoted to impeccable standards of independence. I offer my respectful congratulations to the Australian Judicial Conference, the Faculty of Law of Griffith University and the Research School of Social Sciences at the Australian National University on the organization and conduct of a symposium on a topic of such public importance.
Lectures Introductory to the Study of the Law of the Constitution 1st ed at Judges are subject to the law in the same way as any other citizen.
The Lord Chief Justice or Lord Chancellor may refer a judge to the Judicial Complaints Investigations Office in order to establish whether it would be appropriate to remove them from office in circumstances where they have been found to have committed a criminal offence.
Judicial independence does, however, mean that judges must be free to exercise their judicial powers without interference from litigants, the State, the media or powerful individuals or entities, such as large companies.
This is an important principle because judges often decide matters between the citizen and the state and between citizens and powerful entities. For example, it is clearly inappropriate for the judge in charge of a criminal trial against an individual citizen to be influenced by the state. It would be unacceptable for the judge to come under pressure to admit or not admit certain evidence, how to direct the jury, or to pass a particular sentence.
Decisions must be made on the basis of the facts of the case and the law alone. Judicial independence is important whether the judge is dealing with a civil or a criminal case. This requirement that judges be free from any improper influence also underpins the duty placed on them to declare personal interests in any case before it starts, to ensure that there is neither any bias or partiality, or any appearance of such. A practical example of the importance of judicial independence is where a high profile matter, which has generated a great deal of media interest comes before the court.
Such matters range from the criminal trial of a person accused of a shocking murder, the divorce of celebrities, and challenges to the legality of government policy, for example the availability of a new and expensive drug to NHS patients. In the 24 hour media age in which we live, it stands to reason that the judge hearing the case will often be under intense scrutiny, with decisions open to intense debate.
It is right that this is so. But it is important that decisions in the courts are made in accordance with the law and are not influenced by such external factors. It is also important however to observe one or two points which will have an impact on the outcome of the trial and our understanding of it:.
The purpose of the above examples is not to suggest that judges never get it wrong, or that in criminal cases they have no say in the sentence handed down, but to give an idea of the factors they must consider when making decisions.
The protection of judicial independence has been the focus of international resolutions, the most prominent of which are:. This includes: All forms of coercion, threat or harassment, direct or indirect; Whether from government, politicians, persons in authority, relatives, neighbours, interested parties, fellow judges, chief justices, judicial bodies or organizations.
Why do we expect our judges to be independent in Canada? Judges are individuals tasked with deciding matters in dispute. Why does judicial independence protect the judges, the decision makers, from improper influence?
To ensure that their decisions will be based upon the law as it applies to the evidence presented and properly admitted, in order to do justice between the parties.
This protection is enforced so that: Citizens will know they were dealt with fairly , that they received a fair trial, and a fair hearing; and Judges are insulated from any improper outside influence and who were bound only by their conscience and the law. For more information about Judicial Independence and what it means for you: Got questions about judicial independence? Rule of Law.
0コメント