Martinus Nijhoff Online

 The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges

Contents

• • Preliminary Material (i-l)   (253K)
    • Jump to section:
    • Contents
    • Table of Cases
    • Table of Legislation
    • Preface
    • Acknowledgements
    • List of Contributors
  • General Introduction (1-14)   (109K)
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    • Part I; The Significance Of The Independence Of The Judiciary
    • Part II; The Judiciary And The Other Branches Of Government
    • Part III; Judicial Independence In International Law And National Law
    • Part IV; Judicial Appointment, Judicial Conduct And Judicial Accountability
    • Part V; Country Studies Of Judicial Independence
    • Part VI; International Standards In The Making
    • Part VII; Text Of The Standards Of Judicial Independence
  • Creating A Culture Of Judicial Independence: The Practical Challenge And The Conceptual And Constitutional Infrastructure (15-68) by Shimon Shetreet   (285K)
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    • I. Introduction
    • II. Creating Culture Of Judicial Independence In Domestic Law Perspectives
    • III. The Impact Of International Law On National Law
    • IV. The Fundamental Values Of The Administration Of Justice
    • V. The Conceptual Foundations Of Judicial Independence
    • VI. The Principle Of Democratic Accountability
    • VII. Relationship Of The Judiciary And The Executive And Legislative: The Preferred Model – Partnership And Dialouge
    • VIII. Concluding Remarks: Two Major Challenges In Upcoming Years
  • The Failure Of Institutions: The South African Judicial Service Commission And The Hlophe Saga (69-84) by Christopher Forsyth   (117K)
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    • I. The Establishment Of The Judicial Services Commission
    • II. The Composition And Tasks Of The JSC
    • III. Judge President Hlophe
    • IV. The Oasis Incident
    • V. The Constitutional Court Incident
    • VI. Conclusions
  • Independence Of The Judiciary: The European Perspective (85-96) by Marcel Storme   (90K)
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    • I. Independence Revisited
    • II. The “Bondages”
  • A Fresh Start: The Four Pillars Of Civil Justice (97-110) by Neil Andrews   (103K)
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    • I. Introduction
    • II. Author’s First List Of Principles: Principles Of Civil Procedure (1994)
    • III. “Woolf Changes” Of Principle: C.P.R. (1998)
    • IV. Article 6(1), European Convention On Human Rights
    • V. UNIDROIT/ALI Project (2000–2006)
    • VI. Author’s Second List Of Principles: English Civil Procedure (2003)
    • VII. A Fresh Start: Four Pillars Of Civil Justice
    • VIII. Concluding Remarks
  • Judicial Independence And The Rule Of Law: Exploring The European Experience (111-124) by Carlo Guarnieri and Daniela Piana   (118K)
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    • I. The Meaning Of Judicial Independence
    • II. Types Of Judicial Independence
    • III. Judicial Independence And The Rule Of Law In The European Union
    • IV. Some Conclusions
  • The Rule Of Law Vs. The Rule Of Judges: A Brandeisian Solution (125-138) by Stephen Goldstein   (96K)
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    • I. Introduction
    • II. The Judicial Heritage Of Brandies
    • III. Conclusions
  • The Threats To Judicial Independence: Experiences From The Commonwealth (139-152) by Cyrus Das   (101K)
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    • I. Introduction
    • II. Direct Interference By The Removal Or Harassment Of Judges
    • III. The Politics Of Judicial Promotions
    • IV. Inappropriate Consulations With Judges
    • V. Inappropriate Propositions Or Suggestions To Judges
    • VI. Circulars And Directives To Judges
    • VII. Concluding Remarks
  • Corruption And Judicial Independence (153-168) by Hiram E. Chodosh   (103K)
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    • I. Introduction
    • II. Corruption
    • II. The Anti-Corruption And Judicial Independence Reform Dilemma
    • IV. Conclusion
  • Judicial Independence In The Face Of Violence (169-176) by Wayne McCormack   (76K)
  • Judicial Independence And Judicial Hubris (177-186) by Maimon Schwarzschild   (86K)
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    • I. Judicial Independence And The Changing Ambitions Of The Courts
    • II. The International Dimension
    • III. Judicial Hubris Vs Judicial Independence
  • The Independence And Impartiality Of The ‘International Judiciary’ (187-214) by James Crawford and Joe McIntyre   (159K)
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    • I. Introduction And Overview
    • II. Defining The Scope And Character Of Judicial Independence And Impartiality
    • III. The Applicability Of The Principles Of Judicial Independence And Impartiality To The International Judiciary
  • The Independence Of International Judges In National Courts: Lessons From Bosnia And Herzegovina (215-230) by David Feldman   (110K)
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    • I. International Judges In Bosnia And Herzegovina
    • II. Political Misperceptions Of The Judicial Function
    • III. The HR And Judicial Independence In BiH
    • IV. Constitutional Review And International Agencies
    • V. Lessons From BiH
  • The Impact Of The ECHR Jurisprudence On The Austrian Practice In The Field Of Judicial Independence (231-242) by Walter Rechberger   (94K)
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    • I. Introduction
    • II. Decisions Of The ECtHR Concerning Judicial Independence
    • III. The Impact Of The ECHR On The Austrian Legal System
  • The Independence Of International Arbitrators (243-250) by He Markus Buechel   (71K)
  • Judicial Independence As An Indicator Of International Court Effectiveness: A Goal-Based Approach (251-268) by Yuval Shany   (117K)
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    • I. Introduction
    • II. The Effectiveness Model
    • III. The Relationship Between Judicial Independence And Effectiveness
    • IV. Constrained Independence In Action: ICTY v. NATO, ICTR v. Rwanda
    • V. Conclusion
  • Separation Of Powers And The International Judiciary – A Vision Of Institutional Judicial Independence In International Law (269-280) by Michael Bohlander   (108K)
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    • I. Incubus
    • II. International Judicial Institutional Self-Governance – An Idea Worth Pursuing Or An Illusion Doomed To Failure?
    • III. Conclusion
  • The Supreme Court Of Canada Appointment Process: Chronology, Context And Reform (281-300) by Irwin Cotler   (123K)
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    • I. Introduction
    • II. The Road To Reform
    • III. The Pre-Reform Judicial Appointments Process: The Constitutional And Consultative Framework As The Contextual Basis For Prospective Reform
    • IV. Parliamentary Committee Report And Proposed Interim Reform Process
    • V. Interim Process Resulting In Nomination Of Justices Abella And Charron
    • VI. Comprehensive Refom Proposal For The Supreme Court Of Canada Appointments Process
  • The System Of Judicial Appointment In Poland – A Question Of The Legitimacy Of The Judicial Power (301-310) by Fryderyk Zoll   (90K)
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    • I. The System Of The Appointment Of The Judges Of The General Courts And The Supreme Court In Poland
    • II. The Question Of The Delay Or Refusal Of The Judicial Appointment By The President Of The Republic
    • III. Access To The Profession In The Hands Of The Judiciary
    • IV. The “Mouths Of The Statutes” Or The Real Power
    • V. Seeking The Balance Between Legitimacy And Independence
    • VI. Debate On The Place Of The Profession Of Judges In The System Of Justice – “Crown Of The Legal Professions”
    • VII. The School Of Judiciary And Prosecutors And The Problem Of Independence
    • VIII. Final Remarks
  • Courts And The Media: Opening New Doors: Current Aspects Of Court – Media Interaction In Israel (311-328) by Eliezer Rivlin   (113K)
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    • I. Introduction
    • II. The Accessibility Of The Courts To The Media
    • III. The Sub Judice Rule In The Israeli Legal System
    • IV. Conclusion
  • Independence And Judicial Discipline: The Italian Code Of Judicial Conduct (329-338) by Daniela Cavallini   (83K)
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    • I. The Importance Of A Code Of Judicial Conduct
    • II. Judicial Discipline In Italy: The Reform Of 2006
    • III. Some Controversial Issues Regarding Judicial Independence
    • IV. Final Remarks
  • The Age Of Judicial Responsibility: The Retirement And Resignation Of Appellate Court Judges (339-348) by Sir Louis Blom-Cooper QC   (81K)
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    • I. Appointments To Appellate Courts
  • Standards Of Judicial Behaviour And The Impact Of Codes Of Conduct (349-358) by Anton Cooray   (86K)
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    • I. Why Should The Judiciary Be Independent?
    • II. Judging Judges In The Court Of Public Opinion
    • III. Indirect Accountability In The Common Law System
    • IV. Courts As An Agency Of Government
    • V. Do Codes Of Conduct Matter?
  • Judicial Independence: The British Experience (359-372) by Neil Andrews   (95K)
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    • I. Introduction
    • II. The Demise Of An Ancient Office: The ‘Intolerable’ Constitutional Position Of The Lord Chancellor Before 2005
    • III. The Need To Rub Along: Relations Between The Judiciary And The Ministry Of Justice
    • IV. Appointment Of English Judges
    • V. The English Pool Of Eligible Appointees
    • VI. Remuneration And Dismissal Of English Judges
    • VII. The United Kingdom Supreme Court
    • VIII. Concluding Remarks
  • A Recent Challenge To Judicial Independence In Sri Lanka: The Issue Of The Constitutional Council (373-386) by Chandra R. De Silva   (99K)
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    • I. Background
    • II. The Creation Of The Constitutional Council
    • III. The Executive And The Implementation Of The 17th Amendment
    • IV. Conclusion
    • V. Appendix: Courts Of Law In Sri Lanka
  • Challenges Of Judicial Independence — An Australian Perspective (387-400) by H.P. Lee   (103K)
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    • I. The Underpinnings Of Judicial Independence
    • II. Legislative Intrusions Into The Judicial Sphere
    • III. Protecting The ‘Reputational Capital’ Of The Courts
    • IV. The Executive And Judicial Selection
    • V. Appointment Of Acting Judges
    • VI. Judicial Immunity
    • VII. The Courts And The Media
    • VIII. Conclusion
  • Shrinking Legal Aid, Unrepresented Litigants And Judicial Independence (401-412) by Avrom Sherr   (99K)
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    • I. Introduction
    • II. Adversarial And Inquisitorial Models
    • III. Unrepresented Litigants
    • IV. Judges In Informal Proceedings
    • V. Conclusions
  • The Northern Irish Judiciary In Times Of Crisis: The Diplock Courts (413-424) by Sophie Turenne   (108K)
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    • I. The Institutional Framework
    • II. The Occasional Strike From The Judiciary
    • III. The Emergency Taint On Judicial Independence
    • IV. Conclusion
  • The Challenge Of Judicial Independence And The Experience Of Pakistan (425-442) by Mr. Justice Tassaduq Hussain Jillani   (169K)
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    • I. The Beginnings
    • II. Defending The Constitution Through Judicial Independence
    • III. Restoration & March Towards Constitutionalism
    • IV. Judiciary & Enforcement Of Human Rights
    • V. Ideological Moorings And Common Law Traditions
    • VI. Judiciary As A Catalyst Of Social Change
    • Epilogue
  • The Relevance For Brazil Of International Standards Of Judicial Independence (443-450) by Ada Pellegrini Grinover   (72K)
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    • I. The Brazilian Legal System
    • II. The Powers Of The Brazilian Judge
    • II. The Independence And The Impartiality Of The Judiciary In Brazil
    • IV. The Guarantees Of The Judiciary As A Whole
    • V. The Guarantees For The Judges
    • VI. Guarantees Of Independence
    • VII. Impediments As Guarantees Of Impartiality
    • VIII. The Relevance For Brazil Of International Standards Of Judicial Independence
    • IX. Conclusion
  • The Role Of Law In Society In Developing Countries (451-462) by Chandra R. De Silva   (99K)
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    • I. The Story Of Ameena: An Illustrative Case Study
    • II. The Dissonance Between Law And Society In Developing Countries
    • III. The Greater Burdens On Legal Systems In Developing Countries
    • IV. The Formative Impact Of Legal System In Developing Countries
    • V. Conclusion
  • The Supreme Court And The Supremacy Of The Judiciary In India (463-472) by K. K. Venugopal   (84K)
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    • I. Early Years Of Conflict
    • II. The ‘Basic Structure’ Doctrine
    • III. The Emergency Years
    • IV. The Beginnings Of An Activist Court
    • V. Supreme Organ
    • VI. Analysing The Supreme Court’s Role In The Indian Polity
    • VII. Conclusion
  • The Mt. Scopus International Standards Of Judicial Independence: The Innovative Concepts And The Formulation Of A Consensus In A Legal Culture Of Diversity (473-500) by Shimon Shetreet   (157K)
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    • I. Significance Of International Standards In The Development Of Innovative Concepts Of Judicial Independence And Accountability
    • II. The Normative Cycle Of Judicial Independence In Historical Perspective
    • III. International Standards Of Judicial Independence
    • IV. Personal And Substantive Independence
    • V. Collective Independence
    • VI. Judicial Appointments
    • VII. Internal Independence
    • VIII. Illustrative Examples Of Dilemmas In Case Of Diversity
    • IX. Special Issues And Principles Regarding Judicial Appointments Exclusionary Model: The Principle Of A Fair Reflection Of Society
    • X. Exclusionary Model
    • XI. Methods Of Judicial Selection And The Models Of Constitutional Adjudication
    • XII. Judicial Review And Democratic Accountability
    • XIII. Main Judicial Function In Society: Dispute Resolution
    • XIV. The Principle Of Pre-Determined Plan For Case Assignments
  • Mount Scopus International Standards Of Judicial Independence (2008) (501-520)   (134K)
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    • Preamble
    • I. National Judges
    • II. International Judges
    • Appendix 1. Officers And Conferences Of The International Project On Judicial Independence
    • Appendix 2. International Law Association Study Group On The Practice And Procedure Of International Courts And Tribunals On The Independence Of International Judges
  • Draft Standards Of The Mt. Scopus Standards Of Judicial Independence (521-550)   (156K)
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    • I. Judges And The Executive
    • II. Judges And The Legislature
    • III. Terms And Nature Of Judicial Appointments
    • IV. Judicial Removal And Discipline
    • V. The Media And The Judiciary
    • VI. Standards Of Conduct
    • VII. Securing Impartiality And Independence
    • VIII. The Internal Independence Of The Judiciary
    • IX. Selection Of Prospective Jurors
    • X. Selection Of A Particular Jury
    • XI. Administration Of The Jury System
    • XII. Jury Consideration And Deliberations
    • XIII. Status
    • XIV. Appointment
    • XV. Exercise Of Mandate
    • XVI. Powers And Immunity
    • XVII. Dismissal
    • XVIII. International Judges
  • IBA Code Of Minimum Standards Of Judicial Independence (1982) (551-556)   (61K)
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    • I. Judges And The Executive
    • II. Judges And The Legislature
    • III. Terms And Nature Of Judicial Appointments
    • IV. Judicial Removal And Discipline
    • V. The Press, The Judiciary And The Courts
    • VI. Standards Of Conduct
    • VII. Securing Impartiality And Independence
    • VIII. The Internal Independence Of The Judiciary
    • Appendix. Text Of Jerusalem Approved Standardswhich Were Amended In New Delhi
  • UN Basic Principles On The Independence Of The Judiciary (1985) (557-560)   (42K)
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    • I. Independence Of The Judiciary
    • II. Freedom Of Expression And Association
    • III. Qualifications, Selection And Training
    • IV. Conditions Of Service And Tenure
    • V. Discipline, Suspension And Removal
  • Commonwealth (Latimer House) Principles On The Three Branches Of Government (2003) (561-574)   (92K)
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    • I. Objective
    • II. Preamble
    • III. Principles
    • IV. Guidelines
  • Tokyo Principles Of The Independence Of The Judiciary In The LAWASIA Region (1982) (575-578)   (44K)
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    • I. Introduction
  • Universal Declaration On The Independence Of Justice (Montreal 1983) (579-594)   (108K)
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    • I. Introduction
    • II. The Declaration
  • Bangalore Principles Of Judicial Independence (2006) (595-604)   (77K)
  • Kiev Recommendations On Judicial Independence (2010) (605-630)   (200K)
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    • Index
    • Annexes
    • 1. Background
    • 2. Introduction And Methodology
    • 3. Selected Findings And Recommendations
    • 4. Summary Of The Discussions
    • 5. Conclusion
    • Annex 1
    • Annex 2
    • Annex 3
  • Index (631-639)   (79K)