from the executive, administrative or legislative branches of government, which will often be parties before the courts. (5) Courts must be able to fulfil their functions without fear: courts cannot act independently if they face retribution for judgments unfavourable to private parties or government. 1. INTRODUCTION: JUDICIAL INDEPENDENCE IN CONSTITUTIONAL DEMOCRACY The independence of the judiciary is as much an essential element of constitutional democracy as human rights and the rule of law that the courts are mandated to protect. The United Nations General Assembly recognized this link in the 2004 declaration on the “essential elements of democracy”.4 The discussion of international law on judicial independence in this Briefing Paper is anchored in an understanding of the essential functions of courts in constitutional democracy. Courts in constitutional democracies serve two functions. First, the judiciary is the ultimate guarantor of human rights in a democratic system. Human rights and in particular political rights enjoyed by all on equal terms are crucial to democratic government, because they ensure that the people can freely express their political will and preferences. The link between the people’s free expression of popular will and democratic government is expressed in Art. 21(3) of the Universal Declaration of Human Rights (UDHR).5 Second, the judiciary in a democracy must secure the rule of law by ensuring that the conduct of the executive and administrative branches of government is consistent with previously enacted laws, with rights, and with the constitution. In order to discharge both functions, courts must enjoy judicial independence. 1.1. The principles of this working definition ensure that two functions of judicial independence in a constitutional democracy – to guarantee human rights and the rule of law – can be fulfilled. The UN Basic Principles on the Independence of the Judiciary bring these elements of judicial independence together in a succinct definition:8 The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. In addition, constitutional democracies around the world have encoded versions of this working definition in domestic constitutions. One example is the South African Constitution, which provides (Art. 165(2)): WORKING DEFINITION OF JUDICIAL INDEPENDENCE Article 14 of the International Covenant on Civil and Political Rights (ICCPR) is the “hard” law basis of the international law definition of judicial independence.6 The article states that all persons are equal before courts and tribunals, and that all persons are entitled to a fair and public hearing before a competent, independent and impartial tribunal (see further section 2). The United Nations Human Rights Committee provides an authoritative interpretation of the article in General Comment No. 32,7 which yields the following working definition of judicial independence: (1) Courts must treat all parties impartially without discrimination. (2) Courts must display no bias or favour towards particular parties. (3) Courts must not pre-judge cases (i.e., there is no prejudice). (4) Courts must be politically independent; they must not be beholden to, or subject to manipulation or influence The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. The Kenyan Constitution emphasises fidelity to the Constitution and the law and prohibits interference in the work of the courts (Art. 160): In the exercise of judicial authority, the Judiciary … shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority. The 2012 Egyptian Constitution (Art. 74)9 recognized these requirements in principle. The provision is identical to Art. 65 of the 1971 Egyptian Constitution: The independence and immunity of the judiciary are two basic guarantees to safeguard rights and freedoms. 8 4 Adopted 20 December 2004, the resolution was officially published in 2005. See: http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/59/201&Lang =E. See also DRI, International Consensus: Essential Elements of Democracy. 5 Universal Declaration of Human Rights, 10 December 1948, General Assembly resolution 217 A(III), (UDHR). 6 See in this regard, DRI and The Carter Center, Strengthening International Law to Support Democratic Government and Genuine Elections (2012), p. 13. 7 UN Human Rights Committee, General Comment No. 32, CCPR/C/GC/32, 23 August 2007. 2 UN Basic Principles on the Independence of the Judiciary, adopted by the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders, Milan 26 August - 6 September 1985, endorsed by General Assembly resolutions 40/32, 29 November 1985 and 40/146, 13 December 1985, para 2. 9 The 2012 Egyptian Constitution was suspended on 8 July 2013, and at the time of writing is in the process of being amended. A 10-member technical committee, composed of six judges, one professor and three retired academics, was appointed by the interim government to propose changes to the 2012 Constitution. These proposals were published on 20 August 2013. On 1 September 2013 a presidential decree called for the establishment of a 50-member committee to prepare a complete draft Constitution.