Assessment of De Jure Judicial Independence of Constitutional Courts According to International Guidelines

Osayd Awawda

Abstract


Judicial independence of constitutional courts is of paramount importance because it upholds the rule of law, protects individual rights, and maintains checks and balances in a democracy. Moreover, it ensures impartiality, prevents the abuse of power, and fosters public trust in the legal system. By interpreting and applying the law without external influence, an independent judiciary safeguards the principles of justice and democratic governance. This Article provides criteria for assessing de jure judicial independence of constitutional courts according to four renowned international documents that set normative standards for protecting judicial independence. These four documents are synthesises the literature about the definition of judicial independence, particularly in the context of constitutional courts, and analyses four international guidelines that set essential standards for protecting the independence of the judiciary. These four guidelines are: Basic Principles on the Independence of the Judiciary by the UN,1 Report of the Special Rapporteur on the Independence of Judges and Lawyers,2 the Universal Charter of the Judges,3 and International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors.4 Using conceptual and doctrinal analysis, this Article identifies three key elements of de jure judicial independence: personal, institutional, and procedural. It also establishes practical criteria to evaluate whether the laws governing a specific constitutional court uphold or undermine its de jure judicial independence. Importantly, it is crucial to distinguish between de jure and de facto judicial independence because merely enacting constitutional provisions and laws to safeguard the judiciary does not automatically guarantee an independent judiciary in practice. The discussion of these principles highlights how personal, institutional, and procedural independence can be established and preserved within the courts. This Article concludes that the common purpose of these principles is to protect judges from unwarranted interference, especially from the executive branch. Among the various principles, the most crucial ones were found to be independent judicial appointment procedures and ensuring judges’ tenure is protected against retaliatory actions by the governing regime.

Keywords


De Jure and De Facto Judicial Independence; Personal Independence; Institutional Independence; Procedural Independence

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DOI: https://doi.org/10.31078/consrev1017

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