The main factors aimed at securing judicial independence
The previous section has briefly explained why judicial independence is important for maintaining judges' impartiality and the rule of law. This section now focuses on how judicial independence can be guaranteed in its fundamental aspects (external, internal, institutional and individual independence). Various mechanisms are possible, and a range of examples are provided to encourage debate and develop critical thinking.
Judicial independence is a multifaceted concept. There are different institutional, legal and operational arrangements that in abstracto are designed to ensure judicial independence, and they can work differently depending on the historical, political, legal and social context in which the judiciary operates. Therefore, there is not an ideal model of implementing judicial independence in the sense that one-size-fits-all. Judicial independence is - in more concrete terms - the result of a combination of different conditions, measures, checks and balances, that can vary from one country to another. Every country has to find its own balance.
In some countries, for example, judicial independence is basically secured through a self-governing body or council (composed mainly of judges) which is in charge of all the decisions concerning judges' recruitment/nomination, career, transfer and discipline. This occurs, for example, in France, Italy, Mongolia, Nigeria, Poland, Romania, Spain, and Ukraine. In other countries, such as Kenya, South Africa, India, Germany, Austria, Czech Republic, India, Kenya, South Africa, the United States, there is no equivalent body, and judicial independence is thereby secured through various other mechanisms. Therefore, what is deemed to be an essential measure in some countries may be not considered as such in others. This reveals rather different views on the institutional means needed to protect judicial independence.
The process of defining the institutional requirements of judicial independence has by no means come to an end. For example, the oldest institution of the British constitutional system, the office of Lord Chancellor, has been recently redesigned in an effort to bring about a clearer separation between the branches of the State, and to enhance the independence of the judiciary (see the UK Constitutional Reform Act, 2005; Shetreet and Turenne, 2013).
The protection of judicial independence is usually considered as including various aspects that operate on different levels: external and internal independence, and institutional and individual independence. External independence refers to the independence of the judiciary from the political branches (Executive and Legislative power), as well as any other nonjudicial actor. Although there must, of necessity, be some relations between the judiciary and the political powers (especially the Executive), as stated in the Commentary on the Bangalore Principles "such relations must not interfere with the judiciary's liberty in adjudicating individual disputes and in upholding the law and values of the Constitution" (2007, para. 26). Internal independence focuses on guarantees aimed at protecting individual judges from undue pressure from within the judiciary: from other judges and, above all, from high ranking judges. High ranking judges may, for example, exert supervising power over courts' administration (depending on the organization of the judicial system), but they must not - in any way - influence the substance of judges' decision-making.
Institutional independence pertains to the institutional and legal arrangements designed ex ante by the State to shield judges from undue pressure and influence. From this point of view, the most important factors concern the way in which judges are recruited, evaluated, and disciplined, the governance of the judiciary and courts' administration.
