![]() ![]() The conventions which must supplement textual assertions of judicial independence reach deep into the history of each people and each legal system. A judge without independence is a charade wrapped in a farce inside an oppression. Even a person living in a most primitive society will aspire to that objective when confronted with the need to approach a decision-maker. It is not necessary to be a sophisticated investor in Hong Kong or a world-weary lawyer in Australia or the United States, to realise how important it is that a conflict, serious enough to come to formal decision-making in a court, should be resolved by a decision-maker who is "competent, independent and impartial". This requires a reflection upon the constitutional struggles, past and present, by which people everywhere have been seeking to attain the kind of human right to which Art 14.1 gives expression. It is essential to breathe life into the sparse language of the ICCPR. To give content to the provisions of Art 14.1 ICCPR, it is therefore necessary to go beyond the letter of a written constitution. The legislature provides for their salaries and pensions. In many countries, the Executive Government appoints judges. Total separation of the judicial power is not possible in the real world. Symbolically, it involves an endorsement of the principles and makes departures from them more difficult because they will need to be more public. Nevertheless, a constitutional statement guaranteeing the independence of the judiciary is a good start. ![]() Nowadays, there are many tribunals, statutory decision-makers and others who have that responsibility4. The judicial branch does not, typically, include all those who, in a given society, make decisions by applying pre-existing law to proved facts. ![]() The constitutional provision of a judicial branch of government, and the formal assurance that it is separate and independent of the other branches, represents the main way by which most states seek to comply with the principles contained in the foregoing provision of the ICCPR. The achievement of a manifestly disinterested and impartial application of legal rules will not be a feature of such a societ圓. Uniformity, consistency and certainly in decisions, will be accidental. Without the rule of law and the assurance that comes from independent decision-makers, it is obvious that equality before the law will not exist. The alternative to the rule of law is the rule of power, which is typically arbitrary, self-interested and subject to influences which may have nothing to do with the applicable law or the factual merits of the dispute. It is impossible to ensure the rule of law, upon which other human rights depend, without providing independent courts and tribunals to resolve, in the language of the ICCPR, competently, independently and impartially, disputes both of a criminal and civil character. It draws upon the historical experience of many lands. This cardinal provision is derived from earlier statements of universal principles2. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law". "All persons shall be equal before the courts and tribunals. Amongst the rights stated are those in the section which contains "Procedural Guarantees in Civil and Criminal Trials"1. The International Covenant on Civil and Political Rights ("ICCPR") states the fundamental rights that belong to human beings everywhere. INDEPENDENCE OF THE JUDICIARY - BASIC PRINCIPLE, NEW CHALLENGES INTERNATIONAL BAR ASSOCIATION HUMAN RIGHTS INSTITUTE Publisher: Publisher - Was the paper published? Organisation: International Bar Association ![]()
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