CONSTITUTIONAL GUARANTEES OF JUDICIAL INDEPENDENCE: LESSONS FROM COMMON LAW JURISDICTIONS

Abstract

Judicial independence is a cornerstone of constitutional government because rights to constitutional protection and limits on public power rely on judicial power that is free from undue political influences in deciding matters. In common law countries, there are various constitutional provisions for achieving this independence. The United Kingdom is heavily dependent on the statutory guarantees and the constitutional conventions, while in Canada it is both textual and structural protections which are entrenched; in Australia it is the textual separation of the judicial powers, backed up by a raft of judicial doctrines and conventions; in India, it is a range of statutory and judicial doctrines on the independence of institutions and appointments; in South Africa, it is judicial independence entrenched in a transformative constitutional framework; and in Pakistan, it is a dense constitutional architecture whose efficacy is not guaranteed. This article looks at these jurisdictions' main constitutional safeguards for the independence of the judiciary in a comparative manner. It addresses issues of security of tenure, compensation, judicial nominations, administrative independence, institutional distance, disciplinary systems and constitutional review. The article concludes that it is impossible to provide complete protection for the independence of the judiciary. Instead, the successful independence of all political institutions requires multiple reinforcing protections against their dominance or control over judicial appointments, tenure, funding, administration and discipline. The experience of the other countries examined also shows that although there is formal constitutional protection, there can also be considerable de facto vulnerability. The article concludes that the common law jurisdictions offer a valuable, but incomplete institutional model, with judicial independence most likely to be durable when constitutional guarantees are complemented by clear appointments procedures, secure tenure, adequate financial protection, judicial governance that is internally autonomous, and judicial governance that is accountable.