In The Federalist No. The rule of law means that all authority and power must come from an ultimate source of law. Under an independent judicial system, the courts and its officers are free from inappropriate intervention in the judiciary 's affairs. With this independence, the judiciary can safeguard people's rights and freedoms which ensure equal protection for all.
He said if it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; the judge would then be the legislator.
If it were joined with the executive, the judge would behave with violence and oppression1.
The principle of separation of powers is the foundation for a democratic state based on the rule of law. The judicial power dispenses justice in disputes between citizens and government and its agencies.
Therefore, there is a need to vest this judicial power in a mechanism independent of the legislative and executive powers of the government with adequate guarantees to insulate it from political and other influence to secure its independence and impartiality. The presence of an independent judiciary in a democratic government distinguishes that system from a totalitarian one2.
The current form of Westminster government that Australia and Malaysia has adopted keeps the parliament in line with the executive policy.
Therefore, the judiciary is seen to be vital in providing the checks and balances. Judicial independence is the very foundation of any worthwhile legal structure. A free society would only exist as long as it is governed by the rule of law, which binds the rulers with the ruled.
An independent judiciary is generally an essential requirement for the proper functioning of free and democratic society. The issue of judicial independence involves three fundamental conditions.
Security of tenure of the judicial office-bearer, financial security and institutional independence. According to the doctrine of separation of powers, judicial independence is to be taken as a bulwark against the concentration of power in the hands of the Parliament or the bureaucracy.
At the practical level, there is a considerable challenge in achieving appropriate degree of independence3. In common law countries, the tension between the executive and the judiciary is the result of the doctrine of separation of powers.
Under that doctrine, the political system of a nation divides its governmental power between a legislature, an executive and a judiciary. Furthermore, no arm of government is supposed to abdicate power to another arm.
The premise of this construct is not a harmonious relationship but a checking and balancing of power. Inevitably, the checking provides the pattern for, and generates, tension between the three arms of government.
In practice, the doctrine of separation of powers is very difficult to implement. If there were a pure separation of governmental power, effective government would be impossible.
It is an accepted fact that the executive and legislative arms of government cannot operate independently of one another. As the United States experience often time shows, when the executive and the legislature cannot agree, a gridlock happens.
The fundamental nature of legislative, executive and judicial power, more than any other factor, which has made it so difficult to maintain a strict separation between them. Judicial independence is primarily concerned with the protection of judges once appointed.
It also reaches back in the process of selection. Therefore, it is important the judges are seen to be free from any appearance of partiality or pressure from the executive. Principles, Structure and Organisation. Functional separation requires that no branch should control either of the others in their performance of their functions and no branch should be able to perform the functions of any others.
Physical separation requires that no individual be able to hold office in more than one branch simultaneously. Even though the doctrine is not mentioned explicitly within both the Australian and Malaysian Constitution, the High Court of Australia and to a lesser degree, the Federal Court of Malaysia has held it to be implicit in the document as far as the judicial branch is concerned.
In Australia, only the courts exercise the judicial power of the Commonwealth and courts should not be vested with non-judicial functions4. Unfortunately, the judicial power of the Malaysian courts has been removed when the constitution was amended in The origins of Malaysian and Australian constitutional background derived from the United Kingdom.
British occupation began during eighteenth century. The occupation of Penang in marked the beginning of British rule in Malaysia. The Royal Charter of Justice ofapplicable to the British colony of Penang, provided authority for the introduction of English law6.
In this sense, Malaysia was an almost exact contemporary of the establishment of British rule in Australia. British law came to Australia in when the colony of New South Wales was established.
The subsequent divergence of attitude towards the doctrine of judicial independence in these two jurisdictions is largely because of the social, political and cultural differences between these two jurisdictions that contributed to it notwithstanding the fact that both inherited this doctrine from British constitutional theory.a) How is the independence of the judiciary guaranteed in Australia?
While the Westminster system had largely developed because of the doctrine of separation of powers, the Australian system of government is largely based on the Westminster. The Role of the Judiciary actheet Each state and territory has a court hierarchy including a magistrates court, District Court and Supreme Court.
These courts hear civil and criminal matters of increasing seriousness. The Magistrates Court may deal with a matter in its entirety, in which case the magistrate makes all decisions and judgments.
Independence of the South – African judiciary INDEX 1. Introduction 3 2. The separation of powers and checks and balances 4 3. Problems with judicial independence 6 Bibliography 8 The Independence of the South African Judiciary 1.
Why is the independence of the judiciary an important feature of Australia's system of justice? The judiciary is the government branch that is concerned with the administration of justice. The judiciary is absolutely separate from the executive and the legislature, so it can check the concentration of government power.
The Independence of The Judiciary in Australia: How is the independence of the judiciary guaranteed in Australia? While the Westminster system had largely developed because of the doctrine of separation of powers, the Australian system of government is largely based on the Westminster.
the judiciary has asserted its independence from the executive through an examination of the case law of federal, state and territory courts, and assess whether these cases have fully realised the principle.