It is vital that each judge is able to decide cases solely on the evidence presented in court by the parties and in accordance with the law. Only relevant facts and law should form the basis of a judge’s decision. Only in this way can judges discharge their constitutional responsibility to provide fair and impartial justice; to do justice as Lord Brougham, a 19th Century Lord Chancellor, put it ‘between man and man’ or as Lord Clarke, former Master of the Rolls put it more recently in 2005, ‘between citizen and citizen or between citizen and the state’.
The responsibilities of judges in disputes between the citizen and the state have increased together with the growth in governmental functions over the last century. The responsibility of the judiciary to protect citizens against unlawful acts of government has thus increased, and with it the need for the judiciary to be independent of government.
Independence versus the appearance of independence
As well as in fact being independent in this way, it is of vital importance that judges are seen to be both independent and impartial. Justice must not only be done – it must be seen to be done. It was for this reason that the House of Lords in the Pinochet case in 1999 held that a decision it had given had to be set aside and the appeal before it heard again by a panel of different Law Lords. It had come to light after the original decision that one of the Law Lords might have given an appearance that he was not independent and impartial because of a connection with a campaigning organisation which was involved in the case. In those circumstances, and even though there was no suggestion that the Law Lord was not in fact independent or impartial, the decision could not stand. Justice demanded that the appeal be heard again before a panel of Law Lords who had and gave the appearance to reasonable well-informed observers that they were independent and impartial.
The ways in which independence is protected and its limits
Whilst an independent and impartial judiciary is one of the cornerstones of a democracy, the practical ways in which this is given effect are often treated with suspicion. For example, judges are given immunity from prosecution for any acts they carry out in performance of their judicial function. They also benefit from immunity from being sued for defamation for the things they say about parties or witnesses. These principles have led some people to suggest that Judges are somehow ‘above the law’.
Judges are subject to the law in the same way as any other citizen. The Lord Chief Justice or Lord Chancellor may refer a judge to the Judicial Complaints Investigations Office to establish whether it would be appropriate to remove them from office in circumstances where they have been found to have committed a criminal offence.
Judicial independence does, however, mean that judges must be free to exercise their judicial powers without interference from litigants, the State, the media or powerful individuals or entities, such as large companies. This is an important principle because judges often decide matters between the citizen and the state and between citizens and powerful entities. For example, it is clearly inappropriate for the judge in charge of a criminal trial against an individual citizen to be influenced by the state. It would be unacceptable for the judge to come under pressure to admit or not admit certain evidence, how to direct the jury, or to pass a particular sentence. Decisions must be made on the basis of the facts of the case and the law alone.
Email your news TIPS to Editor@nairobilawmonthly.com, and to advertise with us, call +254715061658 anytime of the day
