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Home » Constitution Design » Questions for constitution makers in Nepal » Legal System » Independence of the Judiciary

Constitutions and Judicial Independence


What can constitutions do to protect judicial independence? Obviously they will not include all the detail on this subject that would be contained in international standards. But some of the things that constitutions can include that are intended to protect the judges - for the purposes of making it possible for them to administer judges without interference and without fear are:

1. Appointment mechanisms that are independent of government influence
2. Protection from fear of dismissal for displeasing government - by making it difficult to dismiss them
3. Protection from having their salaries and other benefits reduced - which can be used to put pressure on them

The second point is a bit controversial: suppose there is a real national emergency, should judges be protected when no-one else is? But it should not be possible for judges to be victimized - so they should certainly not be liable to suffer financially more than any other member of the public service.

Other points worth considering include whether it should be possible to appoint part-time judges or temporary judges - because pressure can be placed on such judges which may reduce their independence.

Who should be able to remove judges? In some constitutions this is the responsibility of the legislature (after inquiry) - see South Africa below, but in other countries by a completely different body - see Papua New Guinea - below.

Here are two examples of provisions about judicial independence (with important phrases underlined):

South Africa
Appointment of judicial officers

174.(1) Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to b appointed to the Constitutional Court must also be a South African citizen.

(2) The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.

(3) The President as head of the national executive, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, appoints the President and Deputy President of the Constitutional Court and, after consulting the Judicial Service Commission, appoints the Chief Justice and Deputy Chief Justice.

(4) The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the President of the Constitutional Court and the leaders of parties represented in the National Assembly, in accordance with the following procedure:

(a) The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President.
(b) The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made.
(c) The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.

(5) At all times, at least four members of the Constitutional Court must be persons who were judges at the time they were appointed to the Constitutional Court.

(6) The President must appoint the judges of all other courts on the advice of the Judicial Service Commission.

(7) Other judicial officers must be appointed in terms of an Act of Parliament which must ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against, these judicial officers take place without favour or prejudice.

(8) Before judicial officers begin to perform their functions, they must take an oath or affirm, in accordance with Schedule 2, that they will uphold and protect the Constitution.

Acting Judges

175. (1) The President may appoint a woman or a man to be an acting judge of the Constitutional Court if there is a vacancy or if a judge is absent. The appointment must be made on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the President of the Constitutional Court and the Chief Justice.

(2) The Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve.

Terms of Office and Remuneration

176. (1) A Constitutional Court judge is appointed for a non-renewable term of 12 years, but must retire at the age of 70.

(2) Other judges hold office until they are discharged from active service in terms of an Act of Parliament.

(3) The salaries, allowances and benefits of judges may not be reduced.

Removal

177. (1) A judge may be removed from office only if -

(a) the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and
(b) the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.

(2) The President must remove a judge from office upon adoption of a resolution calling for that judge to be removed.

Papua New Guinea
179. REMOVAL FROM OFFICE OF CHIEF JUSTICE

(1) If the National Executive Council is satisfied that the question of the removal from office of the Chief Justice should be investigated, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may-

(a) appoint a tribunal under Section 181 (constitution, etc., of tribunals); and
(b) refer the matter, together with a statement of the reasons for its opinion, to the tribunal for investigation and report to it.

(2) If the tribunal reports that there are good grounds for removing the Chief Justice from office, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may, by notice in writing to the Chief Justice, remove him from office.

(3) The Prime Minister shall send a copy of the notice, together with a copy of the report of the tribunal, to the Speaker for presentation to the Parliament, and shall also forward copies to the Judicial and Legal Services Commission.

180. REMOVAL FROM OFFICE OF OTHER JUDGES, ETC

(1) If the Judicial and Legal Services Commission is satisfied that the question of the removal from office of a Judge (other than the Chief Justice), the Public Prosecutor, the Public Solicitor or the Chief Magistrate should be investigated, it may-

(a) appoint a tribunal under Section 181 (constitution, etc., of tribunals); and
(b) refer the matter, together with a statement of the reasons for its opinion, to the tribunal for investigation and report to it.

(2) If the tribunal reports that there are good grounds for removing the Judge, Public Prosecutor, Public Solicitor or Chief Magistrate from office, the Judicial and Legal Services Commission, may, by notice in writing to the Judge, Public Prosecutor, Public Solicitor or Chief Magistrate, as the case may be, remove him from office.

(3) The Commission shall send a copy of the notice, together with a copy of the report of the tribunal, to the Speaker for presentation to the Parliament.
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