Why an Independent Judiciary is an important part of a liberal democracy
March 6th, 2010 | 
Author: By Richard Lu
The Judiciary
“The judiciary (also known as the judicial system or judicature) is the system of courts which interprets and applies the law in the name of the sovereign or state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make law (which is the responsibility of the legislature) or enforce law (which is the responsibility of the executive), but rather interprets law and applies it to the facts of each case.
This branch of government is often tasked with ensuring equal justice under law. It usually consists of a court of final appeal (called the “supreme court” or “constitutional court”), together with lower courts.
The term “judiciary” is also used to refer collectively to the personnel, such as judges, magistrates and other adjudicators, who form the core of a judiciary (referred to as a “bench”), as well as the staff who keeps the system running smoothly.” …… Wikipedia
Why is an Independent Judiciary an importance part of a liberal democracy?
In 1985, the UN General Assembly adopted the “Basic Principles on the independence of the Judiciary” at its 7th Congress. With this, each member state is expected to guarantee the independence of the judiciary in the constitution and by law. What does this mean? Simply put:
· Judicial independence is the ability of a judge to decide a case free from pressures or inducements;
· Institutions of the judiciary must be independent i.e. separated from the legislature and executive arms or any concentration of power; and
· The principal role of the judiciary is to uphold the rule of law and ensure its supremacy.
If the judiciary is to be truly impartial and independent it must have special powers to keep its distance from:
· Political parties,
· Government bodies,
· Pressure and interest groups, and
· Be free from repercussions from all outside interferences and influences.
Basis of Judicial Independence
It is the duty of all governments and other institutions to respect and observe the independence of the judiciary on the following basis:
· Equality of all before the law;
· Presumption of innocence;
· Right to a fair and open or public hearing by a competent and impartial tribunal established by law;
· Judiciary to decide matter before them impartially base on facts and in accordance with the law;
· No interference whatsoever – internally or externally, with the judicial process;
· No improper influences, inducements, pressures or threats;
· Judicial decisions shall not be subject to revision(s);
· Doctrine of Separation of Powers;
· The principle is not compromised by judicial reviews, mitigation or commutation by competent authorities; and
· Public bodies such as state departments, the military, government corporations as well as the state itself are subject to the same laws.
The executive branch often acts as the litigator and enforcer of criminal law. It is inevitable that there are dealings between the courts and the executive branch. The executive branch has a legitimate interest in the proper co-ordination of the justice system as a whole, but the co-operation is an administrative one only. The government branches do not instruct the courts how to arrive at their decisions and the courts do not tell the police how to investigate or perform their duties.
Other requirements for Judicial Independence
a. Remuneration and tenure
The term of office of judges, their independence, security, adequate remuneration, conditions of service, retirement age, pensions, etc. shall be adequately secured by law including:
· Removal from office;
· Judges appointed or elected shall be guaranteed tenure until retirement age or expiry of their term;
· A charge or complaints against a judge in his/her personal capacity shall be expeditiously heard under appropriate rules and procedures and provisions. The judge in question shall have the right to a fair hearing; and
· Judges shall be subject to suspension or removal if found unfit to discharge their duties.
b. Open court requirement
Perhaps the most important safeguard for an independent judiciary is the ‘open court’ principle where justice is dispensed ‘in open court’’. With
the ‘open court principle’, justice will not only be done, but will also “be seen to be done.” ‘Seeing’ in this context enables the public to have
access to trials and to reports of those trials and the actual reasons for the judicial decisions.
· Every member of the public has a right to enter any court at any time as a trial is in progress;
· The public has the right to be present to witness how justice is being dispensed in their courts;
· The public can access if their judges are acting independently and in accordance with the law;
· The press has the right to attend hearing and communicate to the public court proceedings;
· The courts may restrict dissemination of information to ensure a ‘fair trial’; and
· The courts give full recorded reasons for its decisions for the benefit of all and for public record.
c. Requirement to communicating the Law to the People
It is difficult sometimes to explain the law and the legal system to the public. Those who are involved in the system, judges, lawyers,
prosecutors, police and correctional institutuion personnel, must all reach out to make such explanations
d. Judicial Appointment Process
To have a superior judiciary, greatest care must be taken at the initial stage and in the selection or appointment process:
· Persons selected for judicial appointment shall be of integrity and ability with appropriate training or qualifications;
· In the selection of judges, there shall be no discrimination on the grounds of race, colour, sex, religion, political orientation, national or social origin, property or birth or status;
· That a candidate for judicial office must be a national of the country concerned shall not be considered discriminatory;
· There shall be safeguard against judicial appointments for improper motives;
· The judicial function is often a creative one and it is necessary to recruit highly trained, competent, ethical and intelligent men and women, reflective of the society they serve;
· The need to remunerate them appropriately and with substantial salaries reflective of the society they serve;
· This element of creativity, the special adjudicative function that judges play and their role in society makes their job of particular importance to a balanced society;
· This is even more so if their reasons and decisions become precedents because of the effect these decisions will have on subsequent cases and the development of the law; and
· Because of the significance of the initial selection process, it may be useful to review various judicial selection processes in place in a number of jurisdictions.
e. Common Law Systems
· The body of law based on precedents i.e. on the prior decisions of judges;
· Statute law legislated by the state plays a significant role and so does the law made by judges (called the common law);
· Common law is made as judges decide cases and state the rationale for their decisions;
· The accumulation of principles goes into a body of law that evolves to meet social changes and expectations; and
· In a common law system, statute law (including constitutional law) predominates over common law.
f. Civil Law Justice Systems (not applicable to Singapore)
· Most of the judicial systems of major industrialized nations do not operate on the common law system, but rather in a legal system sometimes referred to as the civil law;
· In this system the legally trained individual follows a career path into the judiciary, frequently directly from law school;
· Typically the judicial personnel participates initially in some level of service in the judicial administrative branch, progresses to lower levels of judicial service, and then is promoted to higher levels;
· Judicial structure is more hierarchical and specialization is possible; and
· A judge’s progress depends on the performance assessments of his or her superiors.
· Elective Judicial Appointment (not applicable to Singapore)
In the United States, many state judges are elected.
g. Judicial Associations
Judges are free to form and join associations of judges or other organizations to represent their interests, promote professionalism and to protect their judicial independence.
Quoting the late Justice Thurgood Marshall of the US Supreme Court: “We must never forget that the only real source of power that we as judges can tap is the respect of the people.”
DISCLAIMER:
The writer is not a legally trained person but one who may be considered as “better read”. The sources of the information are from text found in books, articles and in the Internet. It is the writer’s aim to promote discussions. The writer recognizes the subject is a difficult one and certain portions of the article may require further detailed explanations. The article is deliberately kept short in the hope that it would informative and stimulate interest. He apologizes if parts of the article are found wanting.
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why is law jargon especially difficult to read apart from the reason to uphold professional status and to avoid ambiguity?
How do you expect layman to read verdicts and cases if not trained in jargon?
With the Courts ran like a Zoo and staffed by Kangaroos, what bloody INDEPENDANCE can Sinkaporeans expect?
SEPARATION OF POWERS AND JUDICIAL INDEPENDENCE – Australian perspective
Governments of the present day necessarily pose a greater threat to individual liberties than did those of last century. Modern governments are expected to intervene in areas previously little regulated and the result is a
greater intrusion into the private lives of those they govern. The greater the intrusion, the more occasions there will be for the citizen to complain of it. For
redress of such complaints, whether because of a denial of benefits to which a citizen is entitled or of unlawful interference with his freedom of action according to law, it will be primarily to an independent judiciary that the citizen must look. And only an independent judiciary, including, of course, those who staff courts set up to review exercises of administrative discretions, can offer
the assurance that those intrusions are kept within the limits which the law imposed…..”
“Judicial independence does not exist to serve the judiciary;…. It exists to serve and protect, not the governors but the governed.”
http://www.austlii.edu.au/au/journals/VicJSchol/2004/12.pdf
Interesting read
Law reforms in Australia – Who judge the judges
“In the past three decades, however, there have been dramatic changes in the way various countries and states handle complaints against judges, magistrates and other judicial officers. Each US state now has its own judicial conduct commission, as does Canada and New Zealand…NSW introduced a judicial commission in late 1986 with tripartite goals of investigating complaints about judges, collating sentencing statistics and educating judges.”
“What is particularly interesting is that Victoria’s judges are strongly in favour of a judicial commission and are pushing for reform….”
” The judiciary is under scrutiny more so that ever before and they recognise that, and I think that’s a good thing.
“They want to have an independent body [to examine complaints] and I think the public wants a transparent and accountable process.”
“We would far rather have the Attorney-General removed from the process and the power vested in an independent body. In principle, the executive should be detached as far as possible from the judiciary.”
http://www.theage.com.au/national/who-judges-the-judges-20091206-kcrx.html
Dear Singaporeans
OF LIONS & LAMBS…….
Please go to http://www.singapore-window.org/1028judi.htm and please read this insightful article “The politics of judicial institutions in Singapore”
The economic and social woes that have visited Singapore of late is attributable in the main to the rabid policies the PAP had adopted and implement over the years to maintain their clutch on power to perpetuate their reign. Two major causes are the lack of democracy and transparency.
Democracy has yet to arrive in Singapore. The 6-yearly election ritual is only but one pre-requisite of a democracy. Democracy must necessary include at least the freedoms, equality and majority rule. Liberal democracy include additional elements – political pluralism, equality before the law, the right to petition elected officials for redress of grievances, due process, civil liberties, human rights, and elements of civil society.
Majority rule, a characteristic feature of democracy requires either a determined and responsible governments or constitutional protections to prevent the “tyranny of the majority”. But Singapore (like Zimbabwe or North Korea) is witnessing an exact opposite situation – a tiny minority restraining the wishes of the majority.
An 18th century American lawyer, Patrick Henry, once wrote, “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.” In graphic terms, what the famous American patriot was in effect saying is that the law is what political scientists call the ‘cage’ that prevents the lion of power from mauling the innocent lambs, the black sheep, the hard-working ox and the cunning foxes that are found among the people.
Quis custodiet ipsos custodes? is a Latin phrase from the Roman poet Juvenal, which is literally translated as, “Who will guard the guards themselves?” or often rendered as “who watches the watchmen?”.
In liberal democracies, the judiciary acts as guard and watchman and are is “eyes”.
The judiciary is a pillar of the government (the others being the legislative and the executive branches). However the judiciary shoulders an unfair larger burden for you see they can must stand up to the bullying politicians of the legislature or reluctant executive branch.
Finally, a fine example of the lack of judicial independence in Singapore is this arrogant boast:
“If we had considered them serious political figures, we would not have kept them politically alive for so long. We could have bankrupt them earlier.” – Lee Kuan Yew referring to opposition MPs Chiam See Tong and Low Thia Kiang, Straits Times, Sept 14 2003
Thank you for “hearing” me out.
Dear Singaporeans
Please go to http://www.singapore-window.org/1028judi.htm and please read this insightful article “The politics of judicial institutions in Singapore”.
The economic and social woes that have beset Singapore of late is attributable to the rabid policies that the PAP had adopted and implemented over the years to maintain their clutch on power to perpetuate their reign. Two major results are the lack of democracy and transparency.
Democracy has yet to arrive in Singapore. The 6-yearly election ritual is only but one pre-requisite of a democracy. Democracy must necessary include at least the freedoms, equality and majority rule.
Liberal democracy include additional elements – political pluralism, equality before the law, the right to petition elected officials for redress of grievances, due process, civil liberties, human rights, and elements of civil society.
Majority rule, a characteristic feature of democracy requires either a determined and responsible governments or constitutional protections to prevent the “tyranny of the majority”. However in Singapore (like Zimbabwe and North Korea) the situation is just the opposite. A tiny clique is committing the “tyranny of the minority.”
An 18th century American lawyer, Patrick Henry, once wrote, “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.” In graphic terms, what the famous American patriot was in effect saying is that the law is what political scientists call the cage that prevents the lion of power from mauling the innocent lambs, the black sheep, the hard-working ox and the cunning foxes that are found among the people.
Quis custodiet ipsos custodes? This is a Latin phrase from the Roman poet Juvenal, which is literally translated as, “Who will guard the guards themselves?” or often rendered as “who watches the watchmen?” In liberal democracies, it is the judiciary that acts as the watchman and guard for they are the “eyes” of democracy.
You see, there are 3 pillars of a democratic government and the Judiciary is one (the legislative and executive branches being the others). However the Judiciary shoulders a larger and heavier portion of responsibility for they need to stand up to the bullying politicians of the legislature or the non-performing executive.
Do we really have an independent judiciary when we have one politician in our legislature boasting and uttering this:
“If we had considered them serious political figures, we would not have kept them politically alive for so long. We could have bankrupt them earlier.” – Lee Kuan Yew referring to opposition MPs Chiam See Tong and Low Thia Kiang, Straits Times, Sept 14 2003
Thanks for “listening.”
Is our country democractic?
What’s more important, IMHO, is the INTEGRITY of the system.
Going off tangent a bit, it is being orchestrated that Walter Woon had from the very beginning stated that he was only being Attorney General for two years, and yet it would seem that the Prime Minister did NOT plan in advance to find a replacement AG, otherwise why should the new AG take six months to clear off his work load in his current law firm before taking office as the new AG?
Sounds rather perplexing to me and I believe others, even those in the legal fraternity.
To quote the Thursday TODAY newspaper:
QUOTE:
Some had heeard recently that Singapore’s top prosecutor Walter Woon would be leaving the job he took barely tow years ago. But when it was confirmed yesterday that Singapore’s firth Attorney-General (AG) was indeed stepping down, the legal raternity was still taken BY SURPRISE (MY EMPHASIS.
“Professor Woon was appointed only quite recently. Anyone who gets in a position like that is not going to stay for one or two years. It’s a long-term thing because you need to learn the ropes and the intricacies of the job”, East Asia Law Corporation lawyer Premchand Soman said.” UNQUOTE
We, the citizens of Singapore,
pledge ourselves as one united people,
regardless of race, language or religion,
to build a democratic society
based on justice and equality
so as to achieve happiness, prosperity and
progress for our nation.