HELP UNIVERSITY

DEPARTMENT OF LAW

HULLB PROGRAM

LLB 103 A

CONSTITUIONAL LAW

Judicial independence

WORD COUNT: 1500

Contents
1. Introduction...............................................................................................................3
2. Importance of judicial independence........................................................................4
3. Methods to protect the judiciary................................................................................7
4. Reference
5.Bibiolgraphy -----------------------------------------------------------------------------------------12
 THE INDEPENDENCE OF JUDICIARY

1. Introduction

This assignment aims to elaborate the independence of a judiciary and explain how

to protect and also the importance of judicial independence. Judicial independence is

about how a judiciary should be able to stand within its own without the help of

government or any influence from the social media and also to handle the internal

pressure.
2. Importance of judicial independence

Judicial independence also ensures that a judge has the ability to make their own

judges for every case accordingly and is able to evaluation the cases without being

bias or making a prejudgement favouring one side of the parties before the case

come before them1. The Rule of Law necessitates judicial independence so that

people can go to court and have their arguments settled according to the law. Other

Rule of Law principles, such as clear and public laws that apply equally to all without

discrimination, would be jeopardised without judicial independence 2. If judges does

not have independence, it will lead to the people having an impression that the

judiciary is bias and the public will lose faith of the judiciary system to solve their

problems fairly, it will also lead to people having to solve their problem by

themselves which means that it might cause violence and fear to rest 3. Over the last

century, courts' responsibilities in citizen-state disputes have grown in tandem with

the expansion of government operations. As a result, the judiciary's obligation to

safeguard citizens against government wrongdoing has grown, as has the necessity

for it to be independent of the government. 4

1
Jud.ct.gov, "The Importance of Judicial Independence",
<https://www.jud.ct.gov/external/news/press036.html> Accessed 9 March 2022.
2
British institute, “Importance of Judicial Independence to the Rule of Law”,
<https://www.biicl.org/newsitems/6298/the-importance-of-judicial-independence-to-
the-rule-of-law> [Accessed 9 March 2022].
3
Bccourts.ca,”Why is judicial independence important to you”,
<https://www.bccourts.ca/documents/Why_is_Judicial_Independence_Important_to_
You.pdf> [Accessed 9 March 2022].
4
Courts and tribunals judiciary, “Independence”, <https://www.judiciary.uk/about-the-
judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/
independence/> [Accessed 9 March 2022].
 A fair and independent judiciary requires not only judges' independence in making

case decisions without outside interference, but also the judicial firm's recognition as

both a coequal branch, separate from the legislative and executive branches within a

system of checks and balances, responsible for its own governance and accountable

to the public. The judiciary is responsible for enforcing its members' ethical

behaviour, maintaining the fairness of judicial judgements through the appellate

process, and managing court operations as efficiently as feasible, given available

resources5.Judicial independence. The reason that judicial independence is so

crucial is that a liberal society can only exist if it is controlled by the rule of law - the

rule that binds the rulers and the ruled, and that is administered impartially and

equally to all those who seek its remedies or against whom it is sought. There is an

aspiration in the hearts of all men and women for the rule of law, however hazily

sensed it may be, whatever unarticulated the concept may be 6.

5
Courts.delaware.gov, “Why a fair and independent judiciary matters”,
<https://courts.delaware.gov/aoc/AnnualReports/FY07/doc/FairandIndependentJudic
iary.pdf> [Accessed 9 March 2022].
6
Hcourt.gov.au,”Judicial
independence”,<https://www.hcourt.gov.au/assets/publications/speeches/former-
justices/brennanj/brennanj_ajc.htm> [Accessed 9 March 2022].
 Whether a judge is hearing a civil or criminal matter, judicial independence is

essential. Individuals involved in any type of case before the courts must be

confident that the judge handling their case is not swayed by an outside party or by

the judge's own self-interests, such as a fear of being sued for defamation by

litigants about whom the judge is required to make adverse comments during the

course of proceedings or judgement. This necessity that judges be free of

inappropriate influence also underscores the requirement that they declare personal

interests in any matter before it begins, in order to ensure that there is no bias or

partiality, or the impression of prejudice or partiality 7.

7
Courts and tribunals judiciary, “Independence”, <https://www.judiciary.uk/about-the-
judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/
independence/> [Accessed 9 March 2022].
3. Methods to protect the judiciary

Since there is a lot of factors that shows the importance of judiciary independence,

there are also few ways for government and people to maintain the independence as

well. Firstly, Judges are appointed rather than elected at the federal level. This

eliminates the need for judges to run for office, raise funds, or take a party stance on

matters. As a result, once appointed, they are free to accomplish their work without

having to please their constituents in order to be re-elected 8.Judges independence

can also be helped with life term. Lifetime terms helps the judge to provide a job

security and also ensuring them to make judgements without any worries so that

they wont get fired for making an unpopular decisions. Being said that judges are

also not eligible for reduction of salary because of how they made their decision, the

congress are the ones who set judges salary in the system, it only can be increased

instead of reducing.

Other than that, they can also change the law that is against the judicial

independence. Standardize the judicial recruitment procedure and tenure. Persons

appointed for judicial office must be individuals of integrity and ability with proper

legal knowledge or qualifications, according to the UN Basic Principles. Any system

of judicial selection must ensure that judicial appointments are not made for

illegitimate reasons. There shall be no discrimination in the selection of judges on the

basis of race, colour, sex, religion, political or other opinion, national or social origin,

property, birth, or status, with the exception that a requirement that a candidate for
9
judicial office be a national of the country concerned.

8
The Judicial Learning Center,”What is Judicial Independence”,
<https://judiciallearningcenter.org/judicial-independence/> [Accessed 10 March 2022].
9
Endvawnow.org. 2022. Strategies to support judicial independence.
<https://www.endvawnow.org/en/articles/1012-strategies-to-support-judicial-
independence-.html> [Accessed 10 March 2022].
 Judges, for example, are immune from prosecution for acts performed in the course

of their duties as judges. They are also protected from defamation lawsuits for

comments they make regarding parties or witnesses during hearings. Some have

suggested that judges are 'above the law' as a result of these beliefs. Judges should

be trained in leadership skills and concerns relating to access to justice so that they

accept the idea of being accessible and involved in community service. Most court

ethics rules encourage judges to participate in community activities 10. They should

be guaranteed a tenure until the time they reach their retirement age, or the contract

expires. Provide substantial and long-term support for the justice system, including a

reasonable wage to deter bribery. New adjudicators' pay should be commensurate

with living wage requirements, and it should rise with seniority. There shall be no

improper or unjustified meddling with the judicial process, and judicial decisions shall

not be subject to review. This principle is unaffected by judicial review or the

mitigation or reduction of punishments issued by the judiciary by authorised

authorities in conformity with the law11

10
Endvawnow.org, “Strategies to support judicial independence”,
<https://www.endvawnow.org/en/articles/1012-strategies-to-support-judicial-
independence-.html> [Accessed 10 March 2022].
11
OHCHR, “Basic Principles on the Independence of the Judiciary”,
<https://www.ohchr.org/en/professionalinterest/pages/independencejudiciary.aspx>
[Accessed 10 March 2022].
4. Judicial independence affect in Malaysia

The Malaysian government regularly claims that the judiciary is independent of

outside influence, pressure, or control. Despite this assertion, the judiciary looks to

be suffering from a major and continuous credibility deficit. Since the ouster of Tun

Mohamed Salleh Abbas, the Lord President of Malaysia's Federal ("Supreme")

Court, in 1988, the judiciary's image has suffered greatly, and it has struggled to live

up to the idea of separation of powers and to act as an independent pillar of a

democracy12.Over the years, a number of high-profile political trials have

exacerbated the problem, the most recent of which was the scandal-plagued Anwar

Ibrahim corruption and sodomy prosecutions. The process of appointing and

promoting judges continues to be opaque and unaccountable. The Malaysian

judiciary issued its first annual public'report card' in August 2004, a self-evaluation

exercise intended at showcasing the judiciary's increased transparency. Despite

being hailed as a positive step forward, this project has fallen short of the public's

expectations. Due process and fair trial rights have been jeopardised as a result of

legal changes intended to combat terrorism. Legislators in Malaysia are able to

create laws that are counter to the spirit of the country's Federal Constitution since

they lack true judicial independence.13

12
Icj.org, “Attacks on justice”,
<https://www.icj.org/wp-content/uploads/2012/04/Malaysia-Attacks-on-Justice-2005-
Publications-2008.pdf> [Accessed 10 March 2022].
13
Icj.org, “Attacks on justice”,
<https://www.icj.org/wp-content/uploads/2012/04/Malaysia-Attacks-on-Justice-2005-
Publications-2008.pdf> [Accessed 10 March 2022].
 Malaysian courts have traditionally been a battleground for contentious political

issues with far-reaching repercussions for individual rights. This is in line with the

judiciary's constitutional function as a major guardian of the rule of law as well as the

final arbitrator of what Malaysia's legally sovereign Federal Constitution mandates –

or at least the superior courts. The ability of Malaysia's courts to assess the

constitutionality of legislation as well as the legality of executive and legislative

activity emphasises the need of maintaining judicial independence and integrity.

After the 1988 constitutional crisis, which was analysed as an institutional conflict

between the administration and the judiciary, judicial independence and popular

confidence deteriorated severely. Following a highly questionable disciplinary

procedure, three judges of Malaysia's top court — including the then-Lord President

– were dismissed. Several constitutional modifications that tried to limit judicial power

were also undermined judicial prestige and independence, with future courts

acquiescing until recently. In the meantime, the judiciary has been beset by decades

of controversy, murky dealings, and dubious rulings, further eroding public

confidence in the institution14.

ConstitutionNet, “Restoring the Independence and Integrity of Malaysia’s

14

Judiciary”, <https://constitutionnet.org/news/restoring-independence-and-integrity-
malaysias-judiciary-proposals-reform-and-challenges-ahead> [Accessed 11 March
2022].
Reference

List of websites

Jud.ct.gov, "The Importance of Judicial Independence",

<https://www.jud.ct.gov/external/news/press036.html> Accessed 9 March 2022.

British institute, “Importance of Judicial Independence to the Rule of Law”,

<https://www.biicl.org/newsitems/6298/the-importance-of-judicial-independence-to-
the-rule-of-law> [Accessed 9 March 2022].

Bccourts.ca,”Why is judicial independence important to you”,

<https://www.bccourts.ca/documents/Why_is_Judicial_Independence_Important_to_
You.pdf> [Accessed 9 March 2022].

Courts.delaware.gov, “Why a fair and independent judiciary matters”,

<https://courts.delaware.gov/aoc/AnnualReports/FY07/doc/FairandIndependentJudic
iary.pdf> [Accessed 9 March 2022].

Hcourt.gov.au,”Judicial
independence”,<https://www.hcourt.gov.au/assets/publications/speeches/former-
justices/brennanj/brennanj_ajc.htm> [Accessed 9 March 2022].

Courts and tribunals judiciary, “Independence”, <https://www.judiciary.uk/about-the-

judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/
independence/> [Accessed 9 March 2022].

The Judicial Learning Center,”What is Judicial Independence”,

<https://judiciallearningcenter.org/judicial-independence/> [Accessed 10 March
2022].

Endvawnow.org. 2022. Strategies to support judicial independence.

<https://www.endvawnow.org/en/articles/1012-strategies-to-support-judicial-
independence-.html> [Accessed 10 March 2022].

OHCHR, “Basic Principles on the Independence of the Judiciary”,

<https://www.ohchr.org/en/professionalinterest/pages/independencejudiciary.aspx>
[Accessed 10 March 2022].

Icj.org, “Attacks on justice”,

<https://www.icj.org/wp-content/uploads/2012/04/Malaysia-Attacks-on-Justice-2005-
Publications-2008.pdf> [Accessed 10 March 2022].

ConstitutionNet, “Restoring the Independence and Integrity of Malaysia’s Judiciary”,

<https://constitutionnet.org/news/restoring-independence-and-integrity-malaysias-
judiciary-proposals-reform-and-challenges-ahead> [Accessed 11 March 2022].
Bibliography

Secondary materials
List of Websites

Jud.ct.gov, "The Importance of Judicial Independence",

<https://www.jud.ct.gov/external/news/press036.html> Accessed 9 March 2022.

British institute, “Importance of Judicial Independence to the Rule of Law”,

<https://www.biicl.org/newsitems/6298/the-importance-of-judicial-independence-to-
the-rule-of-law> [Accessed 9 March 2022].

Bccourts.ca,”Why is judicial independence important to you”,

<https://www.bccourts.ca/documents/Why_is_Judicial_Independence_Important_to_
You.pdf> [Accessed 9 March 2022].

Courts.delaware.gov, “Why a fair and independent judiciary matters”,

<https://courts.delaware.gov/aoc/AnnualReports/FY07/doc/FairandIndependentJudic
iary.pdf> [Accessed 9 March 2022].

Hcourt.gov.au,”Judicial
independence”,<https://www.hcourt.gov.au/assets/publications/speeches/former-
justices/brennanj/brennanj_ajc.htm> [Accessed 9 March 2022].

Courts and tribunals judiciary, “Independence”, <https://www.judiciary.uk/about-the-

judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/
independence/> [Accessed 9 March 2022].

The Judicial Learning Center,”What is Judicial Independence”,

<https://judiciallearningcenter.org/judicial-independence/> [Accessed 10 March
2022].

Endvawnow.org. 2022. Strategies to support judicial independence.

<https://www.endvawnow.org/en/articles/1012-strategies-to-support-judicial-
independence-.html> [Accessed 10 March 2022].

OHCHR, “Basic Principles on the Independence of the Judiciary”,

<https://www.ohchr.org/en/professionalinterest/pages/independencejudiciary.aspx>
[Accessed 10 March 2022].

Icj.org, “Attacks on justice”,

<https://www.icj.org/wp-content/uploads/2012/04/Malaysia-Attacks-on-Justice-2005-
Publications-2008.pdf> [Accessed 10 March 2022].

ConstitutionNet, “Restoring the Independence and Integrity of Malaysia’s Judiciary”,

<https://constitutionnet.org/news/restoring-independence-and-integrity-malaysias-
judiciary-proposals-reform-and-challenges-ahead> [Accessed 11 March 2022].