The Role of the Judiciary in a Modern Democratic Constitutional State

1:1 Introduction       

This study discusses judicial independence and its relationship with different constitutional doctrines, namely democracy, separation of powers and rule of law. It will present a comprehensive analysis of judicial independence and why it is important in post-conflict countries. A functional legal system not only protects rights but also redresses wrongs and this is something that is critical in restoring both stability and peace in war-torn societies. Such countries or societies need sound legal systems that are impartial, fair and independent in order to secure the trust of the people.^[1]This is quite important because with an impartial, fair and independent judiciary people are able to trust their disputes to the state, thereby refraining from vigilante score-settling which signals the breakdown of the rule of law.

With regard to the separation of powers, a government comprises three elements with three different aspects which work together in enhancing its success. The first element is referred to as the executive. It has the responsibility and power to operate governmental business within the stipulated laws governing a country. The second is the legislative arm which has the responsibility of making laws. The judiciary is the third branch, and it makes decisions that are binding according to law. These decisions are made in instances when there are disputes between individuals or between individuals and the state. Burbank et al identify that one of the most important features of judicial power is that law guarantees the judiciary power, and thus there is dependence by the judiciary on other parties when dealing with disputes.^[2] There is no established routine for post-conflict justice applicable to all post-conflict countries or societies. Every post-conflict society faces unique circumstances that need to be resolved accordingly.

1:5 Conclusion

The above discussion outlines the importance of judicial independence in a democratic society. Ensuring judicial independence and totally discouraging intimidation or unnecessary influence from other arms of government or other parties is extremely important to maintain democracy. Clearly, there are links between the doctrine of law, democracy and power separation, and these are best maintained by ensuring the judiciary remains independent. Through the rule of law, courts are able to justly and fairly administer justice for all. The doctrine of power separation requires an independent judiciary if the rights and freedoms of the public are to be protected. Whilst a functional, administrative and institutional overlap may blur the lines between the three arms of government, the judiciary should always act as a separate entity free from any influence as it is only through this that the charter of rights and freedoms can be upheld.

[1] David Pimentel and Anderson Brian, ‘Judicial independence in post conflict Iraq: establishing the rule of law in an Islamic constitutional democracy’ (2013) 46 Int’l L Rev 29.

[2]Stephen B Burbank and Barry Friedman, Judicial Independence at the Crossroads: An Interdisciplinary Approach (Sage Publications 2002)………………………………………………………