Judicial Independence: The Judicial Independence Of The Judiciary

With the young nation of America entered into the 19th century, there were still major issues when it came to the balance of powers of the different government branches. The status of judicial review in the Supreme Court was never pressed upon or given any real structure to. The power of judicial review had appeared many times in history before the set up of the Supreme Court as, in England, Chief Justice of the Common Pleas Sir Edward Coke made the originated the idea . During the ruling of the case of Dr. Bonham’s Case, Coke found that the London College of Physicians had no right to levy fines against anyone who violated their rules. He would later go on to state that, “no person should be a judge in his own case” (Fletcher 12). The act was revolutionary at the time as it set the notion of that an official body of government was needed to give fair governess to the people. The idea would pop up once in a while in events such as the Constitutional Convention where records that were kept by the textbook University of Chicago Law Review saw that “13 out of the 15 delegates made statements that were in support of the idea of judicial review” (Prakash 123). The interesting part about the quote is that it states that the idea of judicial review was in place in America many years before the actually case of Marbury v. Madison. Even in the Federalist Papers No. 78 which was published in May 28, 1788, by Alexander Hamilton, went into lengthy discussion about judicial review. In

Legitimacy of courts has long been an important factor in the judicial system. However, a more recent concern has been diversity. It is becoming increasingly important for the court to represent those who it serves. “The ECJ’s composition remains unreflective of the millions of black and migrant European Union citizens whom it serves”. Judgements of both the domestic courts of England and Wales along with the European Court of Justice, affect the everyday lives of all EU citizens – including those of minority and underrepresented groups. “Outcomes should not be influenced by considerations of political or financial consequences”. Independence is important as it is vital that each judge is able to decide cases solely on the evidence presented to them by the parties in court. Personal independence is always necessary to ensure that the judiciary as a whole of both the land or the community remains independent. In order for the courts to be fully independent, they must represent the diversity of the people and make decisions in accordance with the law with no other influences. With the growing influence of the government over the last century it has become increasingly important that the judiciary fulfils its responsibility to protect the public against unlawful acts of the government. What has therefore also become increasingly more important is the need for the judiciary to be completely independent from the government. The evidence suggests that the courts nowadays are not

Judicial independence is a concept of constitutional law that requires the judiciary o be kept away from all other arms of the government. It requires that the judiciary be free from influence from the other arms of the government and any private individuals. It is vital for the doctrine of separation of powers. Judicial accountability is a principle that brings the concept of keeping the judiciary under scrutiny. It requires that the judiciary and judicial officers be held accountable for their actions while in office (Seibert-Fohr & Muller 2012, p.10). This essay is aimed at discussing these two principles and assess whether the change in the Australian judicial appointments process would enhance judicial independence and judicial accountability with a view of making recommendations where changes are necessary.

The Australian Constitution is a rich amalgam of various classical political principles. The concepts of the Rule of Law and the doctrine of the Separation of Powers evident in Montesquieu’s Spirit of the Laws are both salient examples of political theses that are central to Australian Constitutional Law. The structure of the Constitution itself and decisions of the High Court of Australia unequivocally validate the entrenchment of the doctrine separation of powers in the Commonwealth Constitution . In particular, the High Court has applied this with relative rigour with respect to the separation of judicial power. The separation of the judicial power is fundamentally critical to upholding the rule of law. The High Court in Wilson v Minister for Aboriginal Affairs noted that “the separation of the judicial function…advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Chapter III judges” . Kitto J in R v Davidson also identified that the judiciary should be subject to no other authority but the law itself . This is a critical aspect ensuring the concept of legal equality is upheld. Therefore, its role clearly extends to providing checks and balances on the exercise of power by the legislative and executive arms of government . This ensures the liberty of the law and limits the abuse of the judicial system. Judicial Power is defined as “the power which every sovereign must of necessity have to decide between its subjects

“The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;”

Judicial Independence is fundamental to democracy, it serves as a guarantor of the rule of law and separation of power . However, nothing is perfect. There is some defect regarding to the judicial independence and solution must be made to curb the weakness.

Spaeth (1991) speak about the basis in which the Supreme Court was built upon and its importance, and how the power was divided within the government from the Constitution’s creators. In their article “Judicial power and authority,” Edward Conrad Smith and Harold J. Spaeth (1991) speak about the basis in which the Supreme Court was built upon and its importance, and how the power was divided within the government from the Constitution’s creators. This supports the realization that Presidents do not get away with everything, and that the Supreme Court will strike down anybody and

This paper will cover topics such as; what a court is and what the purpose of the court is. This paper will define the dual court system. In addition this paper will describe the role that early legal codes, the common law and the precedent played in the development of courts. And lastly this paper will identify the role of the courts in the criminal justice system today.

Judicial Activism- refers to judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint.

The United States government consists of three main branches: the legislative, the executive, and the judicial. Within the contents of this essay, the judicial branch will be examined. The judicial branch of the United States government oversees justice throughout the country by expounding and applying laws by means of a court system.1 This system functions by hearing and determining the legality of such cases.2 Sitting at the top of the United States court system is the Supreme Court. The Supreme Court of the United States encompasses the federal judiciary, explicitly the judicial branch. This court is comprised of life-long serving Justices who are selected by the President of the United States and approved by the Senate.3 Cooperatively, the Supreme Court, the President, and Congress attempt to work in accord to run the three-pronged government of the United States.

Many of the contemporary issues in South Africa can easily be associated with the apartheid laws which devastated the country. The people of South Africa struggle day by day to reverse “the most cruel, yet well-crafted,” horrific tactic “of social engineering.” The concept behind apartheid emerged in 1948 when the nationalist party took over government, and the all-white government enforced “racial segregation under a system of legislation” . The central issues stem from 50 years of apartheid include poverty, income inequality, land ownership rates and many other long term affects that still plague the brunt of the South African population while the small white minority still enjoy much of the wealth, most of the land and opportunities

In this essay I will be explaining how the doctrine of the separation of powers has been compromised to a less extent in the nation like Australia. The first section will constitute in exploring the history and the significance of the separation of the power doctrine. In the second section I will discuss about the compromise of the doctrine, especially between the administrator and the legislature with some good cases held in high court. Besides, some clarification will be provided to explain how the philosophical system of separation of power is being compromised. This estimate will be supported by the depth psychology of several examples and articles where the doctrine has been compromised concluding that the total separation of the power is merely a myth but as well in spite of that the doctrine protects the individual rights.

If the judiciary are intentionally straying into matters of governmental policy then they as unelected, impartial adjudicators should only do so when cases arise that call for such action, potentially when governmental action threatens the rule of law – a right afforded to them as a constitutional check on governmental power. While the judiciary can be viewed as in a constant skirmish with the Legislature and the Executive much of the judiciary’s power to interoperate statutes liberally comes from powers delegated to it by parliament .

New Zealand 's constitution is very unique and is the base of our legal system. The constitution is unwritten allowing a variety of elements that make up our constitution some are; constitution conventions and statutes. New Zealand 's constitution structure is separated into three branches; the legislature, judiciary and the executive . The executive is the decision making branch, it is believed that the executive is where the real power of parliamentary supremacy lies, as the decisions they make influence the process of legislation . Throughout this essay I will emphasise how statutes are more important and effective in contrast to constitution conventions.

Before 1994 South Africa was a country based on Apartheid rules and regulations. The Parliament was the highest legislative body and it interpreted laws as it pleased, mostly in favour of ‘white Christians’. Any other race or religion was treated in an unfair and sometimes inhumane way. These laws were mainly based on Roman-Dutch law and influenced by English law.