Is Judicial Independence a component or rather a pre-requisite of Rule of Law? Do we need to place the notion of Judicial Independence inside or outside the ROL framework? Which theoretical approach better deal with the relationship between the two concepts?
In my view Judicial Independence is a tool that should comes before the Rule of Law. A precondition of it and not a mere component. Separation of Power in the Montesquieu tradition seems to be prior to the Rule of Law itself.
Matteo Mastracci
It is very interesting issue of course at the practical level. If we consider how the law has evolved we find attempts to cover both issues within constitutions. So we find provisions to guarantee judicial independence - lifetime tenure (or very nearly) and the overriding law of the constitution. Problems arise in states that seek to undermine judicial independence with the appointment of compliant judges who may then interpret constitutional provisions to suit the people in power. Often, and we see it in some newer nations, the Pacific provides examples, judges will lean over backwards to favor government even when they are not government lackeys.
I do firmly believe that if you have an incorruptible judiciary, it will ensure the rule of law. In the past whole benches of judges have resigned in the face of government interference rather than betray their commitment to the rule of law.
I think we first need to interrogate what constitutes judicial independence. A single judge can act independently in a matter but his/her singular act wont constitute judicial independence. So judicial independence is attributable to the judiciary as an institution. when judges dispense justice without fear or favour, and undue influence, corruption etc. from the other arms of government, then we can say, there is judicial independence. Now can this phenomenon take place outside the framework of the Rule of Law. Yes it can. We have seen judges act independently in brutal military dictatorships and countries with a democracy deficit; risk their lives but still act independently. we have seen the judiciary being denied funds and suffering budget cuts but still act independently. so JI can stand out side the ROL, However the ROL cant be said to exist in a country where the judiciary is corrupt and compromised. JI is a big component of the ROL.
Any investigation of judicial independence could well look to the behaviour of the Nauru government in its sacking of the Resident Magistrate and effective termination of the Chief Justice Geoffrey Eames who was unconstitutionally but effectively constructively removed in 2014 by refusing him an entry visa to the country. There are, I think extensive reports and statements from Bar associations about it.
I would suggest the doctrine of separation of power and the doctrine of the basic structure of the constitution into the judicial independence and rule of law equation.
The control of compliance with EU law by the Member States has been the subject of investigations of the doctrine from the beginning of the European integration processes due to the specific supranational nature of the European Commission (EC) supervision over the respect of EU law by the Member States, as well as the obligatory indirect jurisdiction of the Court of Justice of the EU (CJEU). Moreover, the European Commission, in its role as guardian of the Treaties, has developed a number of non-treaty, informal methods and practices aimed at preventing breaches of EU law by Member States and responding to breaches in a conciliatory manner.
The subject of the considerations of the legal doctrine was, on the one hand, the excessive length and cumbersome of procedures, and on the other, the observed prioritization by the Commission of infringements of the Member States, the selective use of the treaty procedure for informal measures, and the question of the Commission's right to disregard some of the shortcomings.
Political scientists attempted to understand the underlying causes of violations of EU law by member states using mainly two theoretical approaches: enforcement and management. Each of these approaches indicates other sources of violations of international / EU law and thus recommends a different approach to the mechanisms guaranteeing the observance of this law by states.
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