Judicial Independence

In one line

Judicial independence means that a judge decides according to law and is not answerable to anybody for the decision.

In the wording a student can write in an exam: judicial independence is the constitutional condition in which a judge, in deciding a case, is free from control, pressure or inducement by the executive, the legislature, private interests or other judges, and is subject only to the law; it comprises individual independence in the decision of a case and institutional independence of the judiciary as a branch.

Independent of whom

Of the executive. The largest litigant in most systems, and the historical source of pressure. Devices: appointment removed from the executive, tenure, salary, and a difficult removal procedure.

Of the legislature. Devices: removal by a special majority only, and prohibitions on discussing a judge's conduct. Article 121 provides that no discussion shall take place in Parliament with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties, except on a motion for an address for his removal; article 211 says the same for a State legislature.

Of other judges. Individual independence includes independence within the judiciary: a judge is not answerable to a superior for the way he decides, only to an appeal.

Of private power and of public opinion. The contempt jurisdiction under articles 129 and 215 addresses interference; public criticism is treated in [Contempt, Criticism and Accountability].

The devices, gathered

Separation. Article 50 directs the State to take steps to separate the judiciary from the executive in the public services of the State. Article 144 of the Swiss Constitution forbids a judge from being a member of the Assembly or the Federal Council. Article I section 6 of the American Constitution keeps officers out of Congress.

Appointment. Treated in [Appointment of Judges Compared].

Tenure and salary. Articles 124(2), 125, 217(1) and 221; Article III section 1.

Institutional autonomy. Article 146 gives the Chief Justice the appointment of the Supreme Court's officers and charges its administrative expenses on the Consolidated Fund; article 229 does the same for a High Court; article 188(3) of the Swiss Constitution provides that the Federal Supreme Court administers itself.

Immunity from legislative discussion. Articles 121 and 211.

Immunity of legislative proceedings from judicial inquiry. Articles 122 and 212, which run the other way and protect the legislature from the courts, and are part of the same settlement.

A statutory duty. Section 3(1) of the Constitutional Reform Act 2005 requires the Lord Chancellor, other ministers and all with responsibility for the judiciary to uphold its continued independence, and forbids ministers from seeking to influence particular decisions through special access.

A constitutional declaration. Article 191c of the Swiss Constitution: the judicial authorities are independent in their judicial activity and bound only by the law.