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

The Issue


In brief the factors that make for an independent judiciary - or at least those factors that can be the subject of constitutional provisions - are generally agreed, though there are some differences between legal systems. Some of these factors are also very relevant to the issue of competence. Generally it would be agreed that a judiciary is more likely to be competent, honest and independent of government and other pressures in the following circumstances:
  • the appointments system is independent of those pressures in government and society that would have an interest in influencing who are made judges, and is capable of identifying the best candidates
  • a judge's advancement depends on competence and not on being accommodating to considerations other than doing the job well
  • the judges are given conditions of service including salaries that ensure they are less likely to succumb to financial temptations
  • their conditions cannot be altered to their detriment - a threat which might be used to put pressure on them to please government
  • they can be disciplined for incompetence and corruption but not for not doing what the government wants.
In 1985 the General Assembly of the United Nations adopted a set of Basic Principles on the Independence of the Judiciary, which are a useful, though not comprehensive guide to how to protect the independence of the judges.

There are provisions in the 1990 Constitution of Nepal and the Interim Constitution, 2007, designed to protect the independence of the judiciary. For some comments by CASU on the provisions in the Interim Constitution, click here.

This is an important topic in all countries, and there is a good deal of information on the internet. For example:

"Judicial Independence and Human Rights Protection throughout the World" by Linda Camp Keith from the American Judicature website (2002):

Judicial Independence Overview and Country-level summary by the Asia Foundation on the Asian Development Bank website (2003)

There is a UN Special Rapporteur on the Independence of Judges and Lawyers.

American Bar Association Report on Independent Judiciary

The ABA also has "Definitions of Independent Judiciary"

For other countries' constitutions and the independence of the judiciary, click here

Different sorts of bodies are responsible for the management of the judiciary in different countries. One important role of these bodies is generally to protect the independence of the judiciary; click here for some more material.
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