FACTORS OF JUDICIAL INDEPENDENCE

Judicial independence: judicial independence is the concept that judiciary should be or needs to keep away from the other branches of the government.i.e courts should not be have influence on the other branches of the government. Judicial independence most important regarding to the idea of the separation of powers. Different countries have different ways for judicial independence and theirs ways to choose judges or judicial selection. One of the most known methods for judicial independence is by granting life tenure or long tenure for judges and this is the way to free them to decide cases and make the rules according to the rule of law and the judicial discretion.

Factors of judicial independence:

  • judicial review
  • appointment of judges
  • judicial immunity

Types of Judicial Independence: there are mainly two types of independence judiciary which are as follows

  1. Institutional independence: Institutional Independence is the independent judiciary and separate branch of the government which is free and not bound from the force and pressure of the other branches of the government.
  2. Decisional independence: Decisional independence is the independent judiciary which is able to make decisions free from the pressure and force of the other branches of government i.e. legislature and executive.

Fundamental values of the justice system: there are five fundamental core fundamental values of the justice system and they are as follows:

  • fairness and justice
  • efficiency of the judicial process
  • access of justice
  • public confidence in the courts
  • judicial independences

Significance of judicial independence:

Independent and free judiciary from other branches of the government is the institution has the high value in every society and it is the main pillar of the rule of law.

Objectives and function of the judiciary:

  • To sort out the disputes and to make the laws independently between individuals.
  • To give surety that every citizen and people are able to live securely under the rule of law.

The judiciary and the executive:

  1. The whole judiciary should be independent.
  2. Every judge should enjoy the personal and substantive independence.
  3. The executive shall not have the power to control over judicial tribunal.

The judiciary and the legislature:

The legislature does not has the right to pass the legislation which reverses the decision of the courts.

Every person shall have the right to be tried expeditiously by the recognized everyday courts or judicial tribunals under law, subject to review by the courts.

The Legislature may be vested with the powers of exclusion of judges, upon a suggestion of a judicial commission to constitutional provisions enacted legislation.

Doctrine of judicial independence: Doctrine of judicial independence can be achieved and maintained in several ways. The doctrine of separation of powers provides authority and responsibilities of the government and state should be shared and divided among the different branches. This doctrine insulates the judicial branch from the other branches of the government for example executive and legislature. The executive and a legislature power have no authority to perform the duties and responsibilities of the courts. Judicial independence must be dependable with judicial accountability. Independence and accountability must be balanced. Judicial independence is essential to maintaining a fair and independence judiciary but independence judiciary is under public attack. Criticism on the independence judiciary has increased and confidence of judiciary has decreased. Judicial independence is important whether the judges are dealing with the civil or a criminal case.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 persons 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 unfortunate for the judge in charge of a criminal examination against an individual citizen to be influenced by the state. It would be objectionable for the judge to come under pressure to admit or not admit certain evidence, how to direct the jury, or to pass a meticulouscondemnation. Decisions must be made on the basis of the facts of the case and the law alone.

JUDICIAL INDEPENDENCE In UK:-

UK is one of those countries which do not have any written constitution due to which the concept of independence of judiciary is very complex and is infused to other organs important of government like Executive and Legislature. This is because the United Kingdom is still the land of Queen. In UK the executive is Queen which is the head of the state and she is involved in all the matters of the land of England. In many written constitution the judicial independence is confirmed however, the UK does not provide any clause relating to the judicial independence .In United Kingdom the whole government is a mixture the three pillars of government that are Executive , Legislature and Judiciary are inter-linked ,these three main organs are dependent upon each other ,these three organs of British government are infuse to each other ,These three departments of government cannot do anything without the consent of each other ,for doing anything even creating any new law these three main organs of government must have each-other consent. Previously the head of judiciary in UK was Lord Chancellor but according to the Constitutional reforms of 2005 the post of Lord Chancellor was dissolved the new head of judiciary in UK according to constitutional reforms of 2005 is Lord Chief Justice but the Lord Chief Justice is also the member of cabinet that is parliament and he is also a member of Legislature .In UK the judiciary is not independent fully because of few reasons that are :-

1)Firstly, the members of parliament have parliamentary privilege according to the article 9 of UK constitution the member of parliament cannot be liable for offences like civil litigation

e.g.:- In the case Stourton v/s Stourton 1963 .The wife file a suit against his husband who was member of parliament but he cannot be arrested because he was immune from the civil litigation

2)Secondly, the judiciary is also not independent because the judges are also immune from civil litigation for action following with their official jurisdiction .In United Kingdom the terms and conditions for all judges are not equal which creates a sense of un-equality.

In United Kingdom the Judicial independence is secure by the settlement act 1700 ,the act establishes fact that superior judges cannot be dismissed even by Executive directly except address to the British Crown by the both houses of parliament that are senate and lower house.

JUDICIAL INDEPENDENCE IN USA:-

USA is one of those countries which do have a written constitution in a booklet form .USA constitution .Judicial independence is ensured in the constitution of USA and hence the constitution itself is the protector of judicial independence in the USA .In USA the judicial power are vested in the supreme court which comprises of nine most important judges in the whole state. The judicial independence of USA is ensured in the article 3 of United States of America’s constitution . [1] Article 3 ensures the independence of judiciary in USA whereas, The article 3 states that federal courts should be the part of federal government and courts should be free to provide justice without any political or social pressure. The question in that is that whether the judiciary in USA is independent or not because in the USA the supreme judge that is chief justice of supreme court is not appointed by the judicial commission but by the President of United States of America. For example:- in the case Bush v/s Gore 2000 case President Bush was held liable for the appointment of CJ that was David Souter but Bush won the case whereas, David Souter had maintained the independence of his position and in this respect had become a symbol of the independence of the judiciary. The main reason why the judiciary in USA is independent because the all important organs of government are linked but are infused to each other like in UK ,no organ of government do not have any liberty to interfere in the work of other organ of government. The USA constitution is the protector of independence of judiciary .

JUDICIAL INDEPENDENCE IN PAKISTAN:-

Pakistan is one of those which do have a written constitution & the constitution of 1973 is the protector of judicial independence in the Pakistan. The judicial independence is ensured in the article 175 & 175(a) of Pak constitution 1973 which states that :-

Establishment & jurisdiction of courts:-

1)There shall be a supreme court & high court for each province & such other courts as may be established by law.

2)No court shall have any jurisdiction save as is or may be conferred on it by the constitution or by or under any law.

3)The judiciary shall be separated progressively from the Executive within years from commencing day.

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