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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