Judicial Independence in Constitutional Democracies: Comparative Institutional Safeguards
Abstract
The ability of the constitutional limitations ultimately depends on the ability of institutions to apply the limitations without undue political influence; this is the reason for the independence of the judiciary in constitutional democracy. Judicial independence is, however, not only a guarantee in the constitutional text enshrined in a country's founding document, but also an actual and valued role in the democratic process in the modern democratic state. Recent democratic backsliding has shown that there is a possibility to have formal guarantees that are accompanied by strong discretionary powers in judicial appointments, courts administration, judicial discipline, budget planning and the composition of constitutional courts. The article takes a comparative institutional approach to judicial independence and highlights the structures in place that empower judges to be independent yet remain "accountable to the people. It differentiates between de jure and de facto judicial independence and recommends that the best protection of judicial independence is to have multiple institutional protections working together, not separately. It then contrasts the appointment systems, security of tenure, autonomy in financial management, judicial councils, disciplinary mechanisms, constitutional review and accountability mechanisms of a number of selected democratic and hybrid constitutional systems. Special focus is placed on the progress in Europe, Latin America, South Asia, the Middle East, specifically on Türkiye, Hungary, Pakistan and India. The analysis shows that the complete judicial insulation as well as unconstrained political participation in judicial governance are not feasible solutions. Achieving sustainable judicial independence must be based on a well-balanced combination of objectives including independence, transparency, accountability, professionalism and democracy. Finally, the article suggests a model of institutions with multiple dimensions that is especially appropriate for constitutional democracies in a state of political polarization and democratic backsliding.
Keywords: Judicial Independence; Constitutional Democracy; Rule of Law; Judicial Appointments; Judicial Councils; Separation of Powers; Constitutional Courts; Democratic Backsliding.
https://doi.org/10.5281/zenodo.22727399
