BRIEFING PAPER 41
SEPTEMBER 2013
info@democracy-reporting.org
www.democracy-reporting.org

INTERNATIONAL STANDARDS FOR THE
INDEPENDENCE OF THE JUDICIARY
1

serious misconduct, incompetence or incapacity, on
the basis of objective standards and criteria that are
set out beforehand, and through fair procedures with
a right of judicial review.
e) Transfer and re-assignment of judges within the
judiciary must be determined by the judiciary
internally and lie beyond the sole control of the
legislature or executive.
f) All courts must be established by law: the court
structure must not be subject to summary
modification by the executive, and ad hoc courts must
be prohibited.
g) The judiciary, or an independent judiciary council,
must be responsible for the administrative
management of the judiciary.
h) Tribunals other than traditional courts are subject to
the same principles of judicial independence as the
ordinary courts.
i)
Courts must be provided adequate financial
resources to fulfil their functions. The judiciary itself
or a judiciary council must be solely responsible for
managing the judiciary’s budget.
j)
The allocation of cases to judges is a matter of
internal judicial administration. Ideally, case
allocation should be randomized or routinized.
k) Military tribunals must have no jurisdiction to try
civilians.
l)
Prosecuting authorities must be impartial, and
operate fairly.
m) A judiciary council, if established, should be
composed primarily of judges, and its powers and
functions set out clearly in law.

EXECUTIVE SUMMARY
The independence of the judiciary gives concrete expression
to two essential elements of democracy, namely the rule of
law and the separation of powers. In a constitutional
democracy, the political process and any state function must
take place within the confines of the law. Judges are tasked to
uphold the rule of law. To ensure that they do so without
improper influence, they must be independent from the
executive and legislative branch of power. Their role for
democracy is particularly important in safeguarding human
rights.
Under international law the following working definition of
judicial independence can be discerned: an independent
judiciary must (a) be impartial; (b) approach cases in an
unbiased manner; (c) display no prejudice; (d) be politically
independent; and (e) operate without fear. On the basis of
international law these principles can be translated into the
following operational guidelines:
a) The power to make judicial appointments should not
lie in the hands of a single political actor, especially
the executive, with the ability to exercise wide
discretion in the selection and appointment of judges.
It is preferable for judicial appointments to be made
through a process that provides for the participation
of other sectors of government and society, for
example judges, the legal profession, opposition
political parties, civil society, the legislature, or
members of government responsible for judicial
administration.
b) Security of tenure requires that judicial appointments
be for life, until mandatory retirement, or for a set
term of office.
c) Terms of service and remuneration cannot be reduced
unfavourably, and must be secured by law.
d) Judges must remain accountable for their conduct:
judges may only be dismissed or disciplined for

This Briefing Paper sets out international standards for
judicial independence and complements DRI’s Report,

International Consensus: Essential Elements of Democracy
(2011),2 and the DRI/Carter Center Report, Strengthening
International Law to Support Democratic Government and
Genuine Elections (2012).3

1

This Briefing Paper was written by Richard Stacey and Sujit Choudhry
from the Center for Constitutional Transitions at NYU Law. It was edited by
Michael Meyer-Resende, Evelyn Maib-Chatré, Geoffrey Weichselbaum and
Mehdi Foudhaili of Democracy Reporting International.

2

Available online at http://www.democracyreporting.org/files/essential_elements_of_democracy_2.pdf.
3
Available online at http://www.democracyreporting.org/files/dri_report_strengthening_democratic_governance_.pdf

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