Duhaime's Law Dictionary


Judicial Independence Definition:

That judges are not subject to pressure and influence, and are free to make impartial decisions based solely on fact and law.

Related Terms: Rule of Law, Judicial Immunity, Judicial Misconduct

In an article published in 2003, the then-chief justice of the Wisconsin Supreme Court, Shirley Abrahamson wrote:

"(T)he term judicial independence embodies the concept that a judge decides cases fairly, impartially, and according to the facts and law, not according to whim, prejudice, or fear, the dictates of the legislature or executive, or the latest opinion poll....

"Judges are constrained to maintain judicial independence by the law, their legal training, their expectations, and the judicial culture. The judicial culture and judicial education treasure intellectual honesty, fair and principled decisions, and rising above partisanship and the political moment.

"Judicial independence is also safeguarded by statutes and ethical codes requiring judges to conform to high standards and to disqualify themselves from sitting on cases in which their impartiality would be questioned. Judicial discipline commissions and the courts can discipline judges for violations of these codes....

"A judge needs courage. Judges with courage resist threats to judicial independence and actively advocate judicial independence. Those lacking courage should neither apply nor run for the office. We must foster a culture that supports and rewards courageous judges.

In Scott v. Stansfield, Justice Baron rejected an action for slander made out against a judge relying on this statement of law:

"It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it under the protection of the law, independently and freely, without favor and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences."

A paper released in 2012 by the Supreme Court of British Clumbia proposed this statement of the law:

"A famous English judge said that justice must be rooted in confidence. He was referring to the confidence litigants and the public must have that judicial decision-makers are impartial. Those who come before the courts must be certain that decisions made by those courts are not subject to outside influence. Judicial independence means that judges are not subject to pressure and influence, and are free to make impartial decisions based solely on fact and law. Judicial independence is often misunderstood as something that is for the benefit of the judge. It is not. It is the public’s guarantee that a judge will be impartial....

"To preserve judicial independence, the Constitution of Canada requires three things: 1. Security of tenure: Once appointed, a judge is entitled to serve on the bench until the age of retirement, unless, for Superior Court judges, both houses of Parliament agree that he or she should be removed from office, or for Provincial Court judges, a tribunal established under the Provincial Court Act has ordered that he or she should be removed from office. 2. Financial security: Judges are paid sufficiently and in a manner so they are not dependent on or subject to pressure from other institutions. 3. Administrative independence: Courts must be able to decide how to manage the litigation process and the cases judges will hear."1

Another Canadian jurist wrote:

"It is the judge ... who is primarily responsible for the maintenance of (their) independence and the independence of the judiciary generally. The Chief Judge and others with administrative duties must act as a buffer between the executive and individual judges. All judges, especially those with administrative duties, must be vigilant to preserve their independence and the independence of their court. They must keep the (government), just as they must keep all others, at arm’s length."

In an extraordinary statement, one ex-attorney general for the Canadian Province of British Columbia recently wrote:

"(J)udicial independence is worth defending only when judges practise it, humbly and quietly, not as an entitlement, but rather as a privilege to be earned every day by hard work and the responsible and efficient exercise of judicial power. Independent to manage and decide cases, yes. But independent to ignore the increasing dysfunction of the system over which they preside? No."2

REFERENCES:

  • Abrahamson, Shirley S., Thorny Issues and Slippery Slopes: Perspectives on Judicial Independence, 64 Ohio St. L.J. 3 (2003)
  • NOTE 1: Joint Statement of the Courts of British Columbia, Judicial Independence (And What Everyone Should Know About It), March 15, 2012 [http://courts.gov.bc.ca/about_the_courts/Judicial%20Independence%20Final%20Release.pdf]
  • NOTE 2: Plant, G., Reform no threat to engaged judiciary, Vancouver Sun Newspaper, March 20, 2012
  • Scott v. Stansfield, [1868] L.R. 3 Ex. 220
  • Watson, Garry, “The Judge and Court Administration” in The Canadian Judiciary (Toronto: Osgoode, 1976) at 183

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