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THE JUDICIAL SYSTEM AS AN
ARM OF GOVERNMENT
URL: http://www.spatialgovernance.com/governance/government/610-2C.htm
© John S. Cook - Created on 3 May 2004
Last modified
05/04/11 11:01
Australian EST |
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INTRODUCTION |
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Justice as a Development Issue
Justice may mean different things to
different people. Herein, ‘justice’ refers to perceptions of
deserved or 'just' rewards and penalties arising out of social
interactions. Accordingly, ‘justice’ includes ideas about
‘social justice’ and ‘wage justice'. In adopting such a meaning,
‘justice’ becomes an important element of the governance
structure that encourages people to be creative and productive
in their collective endeavours. Thus, questions of social and economic development
can be seen as being intimately bound up in the establishment of
governance structures that can foster ‘sustainable human
development’. Moreover, these governance structures are
fundamental to delivering what are now seen internationally as
basic human rights.
Justice and the Separation of Powers
In this discussion, the main concern is with the
rewards and penalties arising from decisions taken by the
executive arm of government. This has broad application in
administration of laws pertaining to social security; planning
and regulation of resources in the natural and built
environment; and administration of the system of criminal justice.
In this regard, understanding the judicial system depends on
understanding the counter-measures needed to prevent injustice.
The doctrine of the separation of powers includes many of these
counter-measures in providing for:
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a parliament to make the laws |
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an executive to
implement the laws |
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a judiciary to interpret
the laws and resolve conflict that may arise in attempting
to apply the laws |
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Undue Influence of Unfettered Executive Government
The rationale for a separation of powers, as it is now
understood, developed out of British experience of how the
executive arm of government could exercise undue influence in the
information and decision processes of a judicial system. The
experience of seventeenth century Britain was of trivial and
vexatious prosecutions; undue detention and unreasonable bail
conditions; interference in the selection, admonishment and
remuneration of judges; interference in the selection and
admonishment of juries; and the granting of royal pardons to favourites
found guilty of offences by courts. Undisciplined executive power
could subvert many of the processes.
Trends in Judicial Systems
A number of public policy issues emerge as a consequence
of complexity in modern government. These issues include:
| balancing judicial independence with judicial
accountability to the community - especially in the resources
allocated by the Parliament for operating the judicial system
and in costs incurred by litigants |
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preserving the integrity of the jury system
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despite reliance on obtaining, presenting and appreciating
evidence that may be inherently complex |
| growth in specialised tribunals and administrative law;
and
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controls against official corruption in all levels of
government. |
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References:
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JUDICIAL INDEPENDENCE |
Independence of the Judiciary
Since ancient
times, kings were often seen as having a responsibility to deliver
justice. Scripture often referred to this regal responsibility in
legends of good and bad kings of ancient times. The legends of the
Wisdom of Solomon, the shortcomings of Saul and David are
examples. In English traditions, coronation oaths affirmed regal
responsibilities in delivering justice and the authority of the
church often aligned with the authority of the state. The word
‘court’ has an ancient meaning that refers to a king and his
retinue of councillors and advisers. Not the least of this advice
was in the matter of delivering justice. In practice, delivering
justice took place through delegating the regal responsibility to
professional judges as experts in their knowledge of the law.
Seemingly, the meaning of a ‘court’ as a judicial tribunal derives
from this ancient meaning and the evolution of how justice is now
delivered.
The
appointment of judges began as something that occurred at the
‘pleasure of the Crown’ (durante bene placito). Under
such an arrangement, the Crown could bring an action against a
citizen that was to be judged by a person whose continued
employment depended on the king’s reaction to how judges decided
cases. In a reign from 1660 to 1688, Charles II dismissed for
political reasons two lord chancellors and a lord keeper, three
chief justices and six judges. James II went even further. The
Bill of Rights 1688 was more an enumeration of significant
‘wrongs’ from which some rights might be deduced. However, the
principles that are now fundamental to the independence of the
judiciary did not become law until the Act of Settlement 1701.
This Act limited the succession of the Crown to princess Sophie
of Hanover and the heirs of her body, being protestant, and made
it clear that the succession was a question for parliament to
determine. Somewhat incidentally, the Act also established the
principle that:
judges commissions be made quandmiu se bene
gesserint; their salaries ascertained and established; but
upon the address of both houses of parliament it may be lawful
to remove them.
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Judicial
Independence in Australia
The Australian
Constitution deals with the mode of appointment, the method of
removing judges and the requirements for judicial remuneration at
s.72.
Modern legislation
omits reference to the Latin phrase quamdiu se bene
gesserint - meaning ‘during good behaviour’ and substitutes as
a ground for removal 'proved misbehaviour or incapacity'.
Judicial Accountability
Controversy may surround some judicial decisions, as in the
Mabo case. What is said in the nature of controversy may reflect the self-interests of various groups in
society. This can raise issues about the basis for appointing
judges by 'governor-in-council' and whether it conveys political
bias. Controversy also surrounds some matters related to
sentencing where ideas about 'getting tough on crime'
reach some intensity, especially if they gain notoriety
through the style of mass-media reporting. Some restrictions can
apply to mass media reporting while matters under consideration
by a court is subject to sub judice rules. Similarly,
parliamentary conventions usually require caution in dealing
with matters deemed sub judice. However, official and
commercial court reports are ultimately an important mechanism
in establishing precedent and achieving consistency, so far as
this is practicable. Similarly, in supposing that trials set an
example to the community at large or allow the community to see
that justice is done, reporting by the mass media also becomes
an important mechanism for judicial accountability.
The
process of appealing to a higher court and placing the reasons
for deciding a case under an intense scrutiny by more than one
senior judge tends to exercise a discipline on judicial
behaviour. Moreover, publication of reasons for a decision
raises the possibility of even more intense scrutiny. Thus,
incompetent or capricious judicial decision making can be
identified and brought to account.
The
1989 removal of Judge Angelo Vasta as a Supreme Court judge by
the Queensland Parliament is a rare example where the personal
behaviour of a senior judge was brought into question.
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References:
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EVOLUTION OF COMMON LAW AND COURT HIERARCHY |
Historical Development
The administration of justice in ancient
times began with some petition or approach to the king to resolve
conflict between citizens - or between a citizen and officialdom. Some
matters became routine and were amenable to delegation of regal
responsibilities to judicial officers according to instructions from
and supervision of the king. Thus in 1178, Henry II (who reigned
from 1154-1189) chose five members of his household 'to hear all complaints
of the realm and to do right'. He established a permanent court at
Westminster that became known as a court of common pleas to hear civil
matters involving disputes between citizens. He also established the
King's Bench as a criminal court.
Commonality and the Common Law
A tenet of the justice system is that similar cases should be
decided similarly. This simple idea introduces a number of practical
problems about how it is possible to know what has been decided
previously, and
how it is then possible to decide on cases similarly. This attempt to
achieve commonality or uniformity is essentially the basis of the
'common law'.
A number of things follow as practical
consequences of trying to seek uniformity should provide a number of
practical responses:
| circuit courts where judges move from place to
place in a circuit within a jurisdiction |
| barristers keeping personal notes as a record of
cases - evolving over time into commercial and official court
reporting and recording |
| 'precedent' being cited as influential in later
court decisions |
| 'precedent' established by higher courts became
binding on lower courts, given that appeal to higher courts could
overturn the decisions of lower courts |
Court of Original Jurisdiction
Legislation or court rules may prescribe the kinds of matters that
can be brought before a court. Thus, the commencement of legal
proceedings occurs in a court of original jurisdiction.
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The Appellate System
A party that is dissatisfied by a court decision may
be able to take the matter to a higher court for reconsideration of
the matter if the rules allow for an appeal. Usually, appellate courts
comprise more than a single judge. The appeal court can affirm, modify
or overturn the decision of the the lower court in question.
Doctrine of Precedent
The common law emphasises the idea of commonality where similar
judgments apply in response to similar circumstances. Thus, judicial
officers will take notice of previous decisions to ensure that the
decisions they make are consistent with decisions that applied in a
similar set of circumstances.
Given a system of common law where similar
remedies apply to similar circumstances and a mechanism for appeal
to higher courts, the remaining element needed to maintain
consistency is that the precedent set in higher courts should
prevail over those of the lower courts. In other words, the
decisions of higher courts are binding on those of the lower
courts.
Situations without Precedent
Criticisms of courts may arise where the
legislature is silent on a matter and a decision is needed that
requires some new thought because there is no real precedent. In
these circumstances the court cannot avoid making law and seeming as
a legislature without the imprimatur of democratic election.
Binding Precedent and the Highest Court of
Appeal
A problem occurs if the lines of reasoning in the
highest courts in the land seem no longer appropriate for justice to
be done. Although it need not happen often, it is important for
development of the common law that the highest court should not
always be bound by its previous decisions.
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References:
| Justice John Bryson, Plantagenet Society of
Australia, ( 20 July 2002), Lecture: 'Henry II and the English
Common Law', (in
HTML) |
| Australian Government, Attorney General's
Department, Home Page,
Australian Legal System,
publications
Professor David Barker, Faculty of Law, University of Technology,
Sydney - Kuring-Gai Campus,
The Courts and the Appeals Hierarchy |
| Nicholas Pengelley,
Researching Australian Law | United States,
Original Jurisdiction - What does it mean? Where does it fit? |
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Australian Law Reform Commission, 'The
Judicial Power of the Commonwealth: A Review of the Judiciary
Act 1903 and Related Legislation, Discussion Paper No.64
(December 2000) - 'Managing
Justice: A review of the Federal Justice System', Report No.89
(reflecting the law as at 31 December 1999). The report considers
advantages and disadvantages of the present adversarial system of
conducting civil, administrative review and family law proceedings
before courts exercising federal jurisdiction and Commonwealth
tribunals. |
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THE POLITICS OF
JUDICIAL APPOINTMENTS |
Judicial Independence
and Dependence
Wherever the separation of powers doctrine is central to the political
constitution, the idea of judicial independence follows as a central
tenet of the judicial system. However, the judicial system does become
dependent on the parliament and the executive in the following
respects:
| in making judicial appointments, accepting
resignations and dealing with circumstances involving dismissal of a
judge |
| in receiving and thus becoming accountable for
public monies to allow the judiciary to perform its public function |
Generally, judicial independence is seen to be
compatible with judicial accountability and allows a workable
relationship between the three arms of government. Judicial
independence implies freedom from coercion in deciding matters before
the court rather than freedom from responsibility to the community for
the use of resources necessary to support the work of the court.
Critique of Judicial Decision Making
Judicial decision making becomes public information when given in an
open court and subject to mass media or commercial law reporting. It
also becomes a matter of public record through official law reporting. This
openness is essential to securing public confidence where justice is
seen to be done. It also provides a number of checks on
judicial authority. Reporting by the mass media can have the effects
of sensationalizing some cases. |
Perceptions of Bias in
Judges and in their Appointment Processes
The appointment of judicial officers raises questions of potential
bias on the part of executive government in making the appointment and
perceptions of bias in the person to be appointed. The usual issue is
whether judicial interpretation and decision-making is likely to
possess conservative or progressive viewpoints in interpreting a
constitution or in dealing with some contentious social issue.
Accordingly, the death or retirement of a judge and the need to make a
new appointment is often accompanied by intense speculation over how a
prospective judge might regard some issues if appointed.Many US states use an election process to appoint
judges whereas appointment of federal judges involves processes that
resemble political campaigns.
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References:
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JUDICIAL
ACTIVISM |
Law Clarification and
Law Making
A decision of a superior court that clarifies the law and becomes
binding on courts lower in the court hierarchy might be thought of as
'making' the law. Since judges are seldom elected directly as
representatives of the people, such law making might also be seen as
undemocratic. However, this so-called 'law making' occurs by default if
legislatures do not create or amend statutory or constitutional
provisions to make the situation clear. In these circumstances, judicial decisions that may be
unpopular with some section of the community may be seen in a
pejorative sense as 'judicial activism'.Some
circumstances where there may be perceptions of law making by judges
include:
| development of the common law |
| interpretation of existing statutes |
| interpretation of political constitutions |
However, this kind of law making is circumscribed in
that:
| judges do not set a political agenda for
themselves but are
obliged to consider issues if an when the matters are brought before
them in court |
| judges do not always agree and the opinions of a
minority may deserve respect for their reasoning and intellect
nonetheless |
Development of the Common Law
Early development of the common law involved articulation of
traditional and customary practices. However, technological change
introduced non-traditional and non-customary or unprecedented
circumstances. An the absence of precedent required either creative
adaptation of old principles to new circumstances or new rules. In
particular, tort law has evolved on a case-by-case basis without much
by way of intervention by legislatures.
Recently, expressions of concern by various interest
groups over the scope of liability and the amounts awarded by
way of damages has raised the issue of 'tort law reform'.
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Interpretation of Existing Statutes
This implies some
Unexpected or unpopular decisions
Constitutional Interpretation
A federal system depends on a written constitution entered into by the
founding states.
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References:
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