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Independence Judiciary and justice

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发表于 1/17/2017 01:04:39 | 显示全部楼层 |阅读模式
本帖最后由 郭国汀 于 1/19/2017 03:48 编辑

    by Thomas G Guo
    Independent and impartial adjudication is essential to a free and democratic society. Senator Henry pointed out in 1894 that “ The safety and happiness and peace of every community depend largely on the confidence that people have in the judiciary. People should feel that their rights are safe under the law, and that the judiciary give wise and impartial judgments.”[1] Senator Arthur Meighen stated in 1932 that " a judge is in no sense under the direction of the Government...the judge is in a place apart. "(Senator debate, 24 May 1932, at P.457) . whether the tribunal may be reasonably perceived as independent, has to determined the judges was in the cases were a tribunal which could make an independent and impartial adjudication.

    Judiciary independence and impartiality are close but different conception, impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case, while independent not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the Executive Branch of the government, that rests on objective conditions or guarantees. there is a reasonable apprehension of a lack of independence in a criminal case, there would also be a reasonable apprehension of a lack of impartiality. Judicial independence is critical to the public's perception of impartiality. Independence is the cornerstone, a necessary prerequisite, for judicial impartiality. impartiality is in this context wider than independence in that a tribunal can be independent and yet biased against one of the parties. but it is hard to know how a tribunal in a criminal case can lack independence and yet be impartial.

    There are three essential conditions of judicial independence:  security of tenure, financial security, and institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial functions. The essentials of security of tenure mean that the judges be removable only for cause subject to independent review and determination by a process at which the judge affected is afforded a full opportunity to be heard, that is secure against interference by the executive or other appointing authority in a discretionary or arbitrary manner. The essentials of financial security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the executive in a manner that could affect judicial independence. The essentials of institutional independence which may be reasonably perceived as sufficient for the purposes of judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function.

    UN adopted the Universal Declaration of Human rights in 1948, art 10 states: "everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him". The European Convention on Human Rights 1950, entered into force in 1953, art 6 states that " in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".  International Covenant on Civil and Political Rights 1966, came into force in 1976. article 14 states: " 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." the 1948 American Declaration of the Rights and Duties of Man, article 26 refers to an "impartial " rather than to an "independent and impartial " tribunal. the 1981 African Charter on Human and People's Rights simply refers to " an impartial court". the 1969 American Convention on Human Rights, adopted the " competent, independent, and impartial tribunal". in 1950s and 1960s the International Commission of Jurists, and 1978 the Independence of Judges and Lawyers, whose task was to promote the basic need for an independent judiciary and legal profession throughout the world, in setting standards for the independence of judges and lawyers.

    Issues as judicial independence and its inevitable co-conspirator, judicial impartiality. The American Bill of Rights, the CanadianCharter of Rights and the European Convention on Human Rights all pass moral as well as legal responsibility to the judiciary. there is no such thing as pure judicial independence.

    It is important for lawyers to defend judicial independence in the face of a public uproar over an unpopular decision, it is equally important to speak out when judges, either through bias, incompetence, cronyism, or, in rare cases, outright corruption, abuse their power and position.Judicial independence is one of art, defined to achieve the essential objective of the separation of powers that justice be rendered without fear or bias, and free of prejudice.[2]Decisional independence refers to a judge's ability to render decisions free from political or popular influence based solely on the individual facts and applicable law. Institutional independence describes the separation of the judicial branch from the executive and legislative branches of government.[3]

    Judicial independence is not the natural state, but rather an ideal, one for which we must strive. Judicial independence may be broken down into two components: decisional and structural independence, both being at once facets of and prerequisites for the larger principle.[4] Impartial judgments may not necessarily be given if judges can be arbitrarily dismissed or financially punished as a result of decisions that do not find favour with the government. The independence of the judiciary is obviously important to society. Accountability is also important. Society has a strong interest in a judiciary that acts wisely, properly, and efficiently as well as impartially. P.261

[1] Senator Henry Kaulbach, Hansard, Senate Debates, 12, July 1894, at p.702
[2] The Essence of Judicial Independence Irving R. Kaufman *80 Colum. L. Rev. 671 (1980) No.4 p. 701
[3] American Judicature Society, What is Judicial Independence? (Nov. 27, 2002), at http://www.ajs.org/cji/cji-whatisji.asp (last visited Apr. 14, 2003).
[4] Judicial Independence By Hon Joseph M. Hood 23 J. Nat'l Ass'n Admin. L. Judges (2003-2004) 146








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 楼主| 发表于 1/18/2017 18:33:53 | 显示全部楼层
本帖最后由 郭国汀 于 1/19/2017 02:58 编辑

         In Canada, the judges in colonies held office at pleasure. The judicial independence parts of the 1701 Act of Settlement were not applicable in the colonies. [1] There was some considerable protection in 1782 a UK statue provided for review and confirmation by the Privy Council of any proposal by a colonial governor and council to dismiss colonial judges. Further, judges were members of the executive council and even of the assembly. Quebec judges were “lions under the throne”, Chief justice Willian Osgoode of Lower Canada, was actively involved in both prosecuting and hearing the treason trial of McLane in 1797 who was hanged.  The first statutory requirement for judicial tenure during good behaviour in Canada was for the King’s Bench in Upper Canada in1834.[2] Lord Durham’s report of 1839 had recommended unification “ the independence of the judges should be secured, by giving them the same tenure of office and security of income as exist in England. In about 1830 made it clear that henceforth they would no longer appoint judges to the executive or legislative councils.  


[1] W.R.Lederman,The Independence o the Judiciary”, 34 Can.N.Rev.(1965) at p.1140.

[2]  An Act to render the Judges of the Court of King’s Bench in this province independent of the Crown, Stat. of Upper Canada 1834, 4 Wm.IV. c.2. Lederman, at p. 1150.



 楼主| 发表于 1/19/2017 02:58:14 | 显示全部楼层
本帖最后由 郭国汀 于 1/19/2017 03:36 编辑

In the United States, the principle of the independent judiciary is set up rather smooth. In 1748, Montesquieu’s Spirit of the Laws published influenced United States very deeply, who wrote: “when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehension may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, There is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subjects would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression”. [1]
        Before the American Revolution, colonial judges generally served at pleasure. One of the complaints in the declaration of independence was that George III “made the judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.”  “There was no consensus in the period leading up to 1776 that good behaviour tenure, secured to English judges by the Act of Settlement, extended to colonial judges”.[2]
        Judge as free, impartial and independent…security of the rights of every citizen that judges of the supreme judicial court should hold their office as long as they behave themselves well; and that they should have honouable salaries ascertained and established by standing law. (1780 the declaration of rights of the Massachussets constitution article 29)
        James Madison stated in 1788 in the Federalist papers No.47 : “ the accumulation of all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the every definition of tyranny. The preservation of liberty requires that the three great department of power should be separate and distinct.”
         USA constitution article III, sec. 1 states: “ the judicial power of the US, shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at state times, receive for their services a compensation, which shall not be diminished during their continuance in office”.
the Americandemocratic experiment made two important contributions to the rule of law: onewas the principle of judicial supremacy and the other was the principle ofjudicial independence. The principle of judicial independence at thefederal level was written into the Constitution when it was decided that we would appoint, rather than elect, our federal judges,[3] and give them lifetime tenure to remove them from the politicalprocess.[4]

American judiciaries,  structurally,  are  not  by  nature  "independent." Independence is a goal for which we must strive.  Decisional independence, refers to a judge's "ability to render decisions free from political or popular influence based solely on the individual facts and applicable law."[5]

   
[1] C.de S. Montesquieu, Spirit of the laws, vol. 1 ( T. Nugent, trans. And ed.) ( New York: Colonial Press) at pp. 151-2.   
[2]Russell Osgood, “Judicial Independence”, U of Toronto L.J. (1994)at p.6.
[3] U.S. CONST. art. II, § 2, cl. 2.
[4] U.S. CONST. art. III, § 3,cl. 2.
[5]American Judicature Society, What is Judicial Independence? (Nov. 27, 2002), at http://www.ajs.org/cji/cji-whatisji.asp



 楼主| 发表于 1/19/2017 03:05:35 | 显示全部楼层
The Principle was first established in British during 17 and 18 century.
Charles II, while by no means abandoning Divine Right, at least went to Parliament for war supplies and respected the concept that judges held office 'during good behaviour', at least until the fall of Clarendon in 1667. At this point Charles began a campaign of attempting to control the senior judges, and in 1680, Parliament held hearings on why various judges had been fired and the House of Commons actually passed a bill (not taken up by the Lords) to protect judicial tenure 'during good behaviour'. As early as 1668, Charles was appointing judges during his pleasure and, to fill such posts, he began appointing KCs from among the younger (and loyal) members of the Bar.
February 1689, The early draft of the Declaration of Rights, dated February second, provided that judges' commissions were to be made quain diu se benegessernt; salaries were to be ascertained and established, to be paid out of the public revenue only, 'and judges were not to be removed nor suspended from the execution of their office, but by due course of law. the judges most was the proposal to take away their right to fees, an increasingly lucrative form of income and something not fully addressed until after the legislation of 1825 and 1832 finally establishing modern judicial salaries.[1]
1701 The Act of Settlement provided that 'judges commissions (shall) be made quam(liu se bene gesserint and their salaries ascertained and established; but upon the address of both houses of Parliament it may be lawful to remove them.' an inarticulate effort to have the kind of separation of powers. many in the 18th century feared that the English judges were not free of political influence. Much influence is, of course, indirect. In the 20th century, Harold Laski observed that 'the English judges cannot be bribed with money' and there is little doubt that in earlier centuries flattery, honours and royal or ministerial favours were even more relevant. Moreover, there were powerful legal levers which might be used on the judges.[2]
While the Act of Settlement may have been intended to prevent royal interference with the judges, Parliament showed no interest in curbing its tradition of interfering with the judges. Moreover, the Act of Settlement did not abolish the right of the Crown not to reappoint judges on the change of a monarch. the right not to renew judges was not abolished until 1761. between 1689 and 1714, of the senior judges, 85 per cent had been MPs and 92 per cent had 'crown service'. Between 1714 and 1760 two thirds of all judges had served in the House of Commons and nearly 90 per cent had received Crown patronage. The head of the judiciary, the Lord Chancellor, continued to be a politician and the rise and fall with ministries and it was he and the Prime Minister who appointed the judges. Judges continued to fall out of favour with Parliament.
The independence of the judicial branch of government in operating free of political control. Sometimes the issue is the independence of individual judges. In England, such independence, either in the collective or individual sense, is not always achieved, but the discussions are frequently not helped by conflating the issue of appointment, tenure and removal-all really different aspects of the independence of the judiciary. Other aspects of the independence of the judiciary range from salaries to behaviour in court.
Until 17 century, the English courts were the King’s courts, and as a rule the judges served at the good pleasure of the Crown and could there be dismissed without cause. [3] the clash between the chief justice of the King’s Bench, Sir Edward Coke, and the Attorney General, Francis Bacon, who argued that judges were “ lions under the throne, being ircumspect that they do not check or oppose any points of sovereignty”. [4] Coke quote Bracton that “ the King is subject to God and the Law”, who was dismissed from office in 1616 by James I.[5] after the Glorious Revolution the Crown in fact made all appointments during good behaviour. Good behaviour had been instituted in 1640 by Charles I and during Cromwell’s Commonwealth, but “ at pleasure” appointments had been reinstated by Charles II and James II.  The Act of Settlement of 1701 put the practice on a statutory basis, provided that judges commissions be made during good behaviour, their salaries ascertained and established: both houses of Parliament may be lawful to remove them, although it did not actually apply until George I, took the throne in 1714.[6] Influenced by the ideas of John Locke’s doctrine of the separation of powers and he advocated a separation between the judiciary the executive, ad Parliament.
After 1701, “the judges were lions under the mace”. But judges could still be dismissed without cause when a new monarch took the throne, and this happened in 1702, 1714, and 1727.  An Act passed in 1760, provided that judges would continue to hold office during good behaviour, notwithstanding the death of the monarch. The Crown still had a complete discretion to grant a judicial pension, but this form of influence was eliminated in 1799. [7] Francis Bacon had been removed as Lord Chancellor for acceptin gifts from litigants 3000 Pound. A statute passed in the mid 14 century had stated that judges should not “take fee nor robe of any man and no gift or reward by themselves, nor by other of any man that hath to do before them by any way, except meat and drink, and that of small value.” The substantial 500 percent increase in judicial salaries that occurred in 1645. Puisne judges salaries went from under 200 to 1000 a year. [8]


[1] Robert Stevens[1],Act of settlement and the questionable history of judicial independence, 1 Oxford U. Commw. L.J.  (2001)  p 258

[2] Robert Stevens[2],Act of settlement and the questionable history of judicial independence, 1 Oxford U. Commw. L.J.  (2001)  p 261

[3] W.R.Lederman,The Independence o the Judiciary”, 34 Can.N.Rev.(1965) 769, 779, and 1139. The Barons of the Exchequer were exceptions and served during good behaviour.

[4] Francis Bacon, “Essays: of Judicature” in a Selection of His Works ( S. Warhaft, ed) ( Toronto: MacMillan, 1965) at pp. 187-8.

[5] J.H.Baker, Introduction to Legal History, 3rd ed. ( London: Butterworths, 1990) at pp. 125-6.

[6] W.R.Lederman at 782.

[7] D.Lemming, “ The Independence of the Judiciary in 18 Century England” in Peter Birks, The life of the Law ( London: The Hambleton Press 1993) at p.127.d

[8] W.Prest, “ Judicial Corruption in Early Modern England” (1991) 133 Past and Present 67 at PP. 77 and 83.


 楼主| 发表于 1/19/2017 03:45:10 | 显示全部楼层
Independent and impartial adjudication is essential to a free and democratic society. Senator Henry point out in 1894 that “ The safety and happiness and peace of every community depend largely on the confidence that people have in the judiciary. People should feel that their rights are safe under the law, and that the judiciary give wise and impartial judgments.”[1] As John Locke put it that :The availability of impartial judges to settle disputes was the most fundamental reason for persons to quit the state of nature and live under civil government[2]. Chief Justice Antonio Lamer said that : “ the rule of law, interpreted and applied by impartial judges, is the guarantee of everyone’s rights and freedom. … Judicial Independence is, at its root, concerned with impartiality, which are elements essential to an effective judiciary. Independence is not a perk of judicial office, it is a guarantee of the institutional conditions of impartiality.[3] “Independence is particularly important in a federal system. The need for an impartial umpire to resolve disputes between two levels of government as well as between governents and private individuals who rely on the distribution of powers”. Formal chief justice Brian Dickson stated. Peter Hogg said that “The judge must not be an ally or supporter of one of the contending parties”. [4] Peter Russell wrote that “adjudication by impartial and independent judges must be regarded as an inherent requirement of political society. “ [5] MacGregor Dawson stated that the judges should be “placed in a position where he has nothing to lose by doing what is right and little to gain by doing what is wrong…to hope his best efforts will be devoted to the conscientious performance of his duty.”[6] Professor Lederman put it that “the condition on which judges hold office mean that they have no personal career interest to be served by the way they go in deciding cases that come before them. “[7]


[1] Senator Henry Kaulbach, Hansard, Senate Debates, 12, July 1894, at p.702

[2] John Locke, The Second Treatise on Government (T.P. Peardon, ed)(New York: MacMillan, 1985) at pp.9-10 and 51

[3] Speech to the Canadian Bar Association on August 24, 1994.

[4] Peter Hogg, Constitutional law of Canada 3ed, (Toronto: Carswell 1992) at p.168

[5] Peter Russell, the Judiciary in Canada: the third branch of government ( Toronto: McGraw-Hill Ryerson,1987) at pp. 20-1.

[6] Peter Russell, the Judiciary in Canada: the third branch of government ( Toronto: McGraw-Hill Ryerson,1987) at 21.




 楼主| 发表于 1/19/2017 12:14:48 | 显示全部楼层
Political justice is the fundamental Justice for all
Justice can be divided as General Justice, political, social, judicial, economic, natural justice, retributive or compensatory justice, substantive and procedural justice; Social justice is the subject of politics and economics. Individual justice subdivides into civil and criminal justice. Civil justice is justice as between man and man; while criminal justice is justice as between citizen and state.[1]Justice in criminal lawdepend on what the imprisoned person has done, which he deserves to be punished, or deprived of benefits. A free choice of action inessential to justice, and such freedom will upset any patterned principle of distributive justice. [2] Rawls in his A Theory of Justice did not discuss the general justice, but Focus on political justice,From society as a fair system of cooperation to the idea of a well-ordered society, to the idea of the basic structure of such a society, tithe idea of the original position, and finally to the idea of citizens, those engaged in cooperation, as free and equal. [3]

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