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Isabela Padilha
Kelly Cotton
Isabela Padilha
Kelly Cotton
In topic 2.9 Independent Judiciaries, you need to be able to explain the importance of independent judiciaries relative to other political institutions. In the CED, you are tasked with 1️⃣ being able to discuss how much authority the judicial branch has to overrule the other branches of government and 2️⃣ the role of the judiciary in strengthening democracy by protecting civil liberties and rights and maintaining separation of powers.
Comparing the Independence of Judiciaries
| Country | Degree of Independence | Explanation or Example of Check and Balance or process to limit independence |
| UK | no true independence | The judicial branch cannot deem a law of parliament unconstitutional as there is parliamentary sovereignty, can only make parliament aware of points that do not meet with common law or precedent. |
| Russia | no true independence | The President and more importantly United Russia by controlling the majority in Congress, appoint and approve those who sit on federal judiciary. It also has legitimacy issues as the courts are often used by the President (Putin in particular) to target the opposition. The judiciary has also never used its power to check the President’s power or the Legislature. |
| Iran | no true independence | The Supreme Leader appoints the justices of the federal courts. Sharia law must always be followed. The concept of judicial review does exist, but the ultimate legal authority does not rest in the Constitution, but rather sharia law and that cannot be overruled. The law treats men and women unequally, as well as Muslims and non-Muslims. The death penalty is also allowed for homosexuality, drug dealing, and alcoholism an example of failure to protect civil liberties and rights. |
| Mexico | transitioning towards independence | The Supreme Court has the power of judicial review and recent amendments have continued the work of making the system more independent and effective. However, there is a problem with legitimacy in Mexico as judges are often seen as corrupt or in fear of drug cartels. |
| China | no true independence | The CCP is the true center of power. The judiciary is bound by rule of law or bound to the decisions of the CCP. The CCP appoints individuals to the judiciary to enforce party decisions. China has a 99.3% conviction rate which is evidence that this is not a system that protects the civil liberties or civil rights of the people. |
| Nigeria | transitioning toward independence | The Supreme Court has the power of judicial review and recent amendments have continued the work of making the system more independent and effective. However, in 2019 President Buhari suspended the chief just prior to the election, so this may indicate Nigeria is taking a step backwards from judicial independence. The court is still building legitimacy in Nigeria as in the 1990s it was clear that the military was controlling the courts. 1995 Ken Saro-Wiwa and activist, as well as eight other Ogonis were detained and handed under orders from the court arranged by the military. |
Assessing the Independence of a Judiciary
As you have already read before, the independence of the judiciary is crucial to ensure that checks and balances are being respected, and to prevent any authoritative threat from emerging in the Executive or the Legislative. But, you may be asking yourself, how does one find out if the judiciary is able to act independently? Here are some important factors to this analysis:
Authority of the judiciary to overrule executive or legislative actions ❌
One of the main tasks of the judiciary is to analyze the laws created and maintain the rule of law principle. If the Judiciary is not granted this ability, then it is not acting independently and could be potentially threatened by the other branches.
For example, in Mexico 🇲🇽, Supreme court judges are the main interpreters of the constitution, and they work to guarantee that all political processes are following the Constitution adopted in 1917.
The process in which judges are appointed/how they acquire their job 👆
The process in which judges are appointed says a lot about the independence of a judiciary. That is because judges might have to demonstrate loyalty to the executive to acquire their jobs, which undermines its legitimacy.
For example, in the UK 🇬🇧 they have the Judicial Appointments Commission, which approves appointments by the Queen alongside the Prime Minister, to promote diversity and fairness in the selection process. This an example of a strategy to maintain the judiciary more independent.
Length of judicial terms 🗓
Unlike with other political offices, judges appointed to higher courts are usually in there for life. That happens because, although the legislative and the executive may have the change to be renewed to reflect timely demands from the population, the judiciary is supposed to represent tradition and stability. It serves as a contrast to other branches because, by serving an almost lifelong term, judges are able to gain experience and ensure that time-sensitive laws are still abiding the law of the land. They also serve to promote the constiution throughout the decades.
For example, the chief justice of Iran 🇮🇷 is appointed by the Supreme Leader for only a 5-year term. This could potentially undermine the stability of the judiciary, since the Supreme Leader may switch this individual after 5 years, and this lack of permanence may affect their performance.
The professional and academic background judges are supposed to have 🧐
Since the Judiciary holds the power to interpret the law of the land, it is necessary that the judges are knowledgeable 🧠 on that topic. This is an important factor, since the judges being appointed should serve the law of the land, and not the expectations of those that appointed them.
For example, the process of appointing judges in China 🇨🇳 is highly centralized and influenced by the CPC. However, there are still some important qualifications for a candidate, such as a law degree, high scores at written and oral exams, and they need 5 years of experience in their areas. This strategy makes sure that candidates are qualified, but it does not exclude interferences from the party.
The Process used to remove judges 👋
We mentioned above how the Judiciary provides stability and predictability. But, if a government can easily remove a judge that does not attend their short-term goals, then judges might not be able to act so independently.
For example, during the military dictatorships in Nigeria 🇳🇬, the judiciary was used as a tool to oppress the opposition and the judges were appointed and removed based on their loyalty to the ruling party. This is a sign of a very weak judiciary, and disrespects the democratic principle of checks and balances.
We are at the end of Unit 2: Political Institutions. Understanding this unit will prepare you for topics that could show up on the AP exam's argumentative essay. This is because you could easily be asked to construct an argument about any of the branches of government and how their structure and function impact independence, legitimacy, authority, and democracy just to name a few course concepts.
To be successful on the exam, you need to be able to understand the structure and function of the branches of government (executive, legislative, and judicial) in each or our course countries (UK 🇬🇧, Russia 🇷🇺, Iran 🇮🇷, Mexico 🇲🇽, China 🇨🇳, and Nigeria 🇳🇬). Be sure to scroll back through the vocabulary, because as we covered in Unit 1, success in the course means knowing and applying your key terms. See you in Unit 3 😃
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