Independence of the judiciary requires proper procedures detailing appointment, term limits, security, and remuneration.
- The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement ago or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension, and cessation of their functions...In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.
- The independence of judges should be guaranteed pursuant to the provisions of the Convention [ECHR] and constitutional principles, for example by inserting specific provisions in the constitutions or other legislation or incorporating the provisions of this recommendation in internal law. Subject to the legal traditions of each state, such rules may provide, for instance, the following: i. decisions of judges should not be the subject of any revision outside any appeals procedures as provided for by law; ii. the terms of office of judges and their remuneration should be guaranteed by law.
- In the decision-making process judges should be independent and be able to act without any restriction, improper influence, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. The law should provide for sanctions against persons seeking to influence judges in any such manner.
- (10) Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualification in law. Any method of judicial section shall safeguard against judicial appointments for improper motives...(11) The term of office for judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law. (12)Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists. (13) Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.
- h) The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged. Any method of judicial selection shall safeguard the independence and impartiality of the judiciary.
- Related to the protection to these prerequisite rights is the importance of a fully functioning, independent judiciary. The judiciary is the principal national body charged with the protection of the rule of law, both during and between election periods. Additionally, in order to ensure the existence of effective avenues through which people can express objections and complaints regarding the election process, it is necessary to guarantee a judiciary that is totally unconstrained by any partisan influence or control. The following are some of the basic principles on the independence of the judiciary: (a) judicial independence must be guaranteed in the Constitution or other law of the country; (b) Judicial impartiality must be guaranteed without any restrictions, improper influences, inducements, pressures, threats of interferences, direct or indirect; (c) The judiciary must have exclusive authority to determine competence to adjudicate; (d) Judicial decisions shall not be subject to revision. This principles should be without prejudice to judicial review of lower court decisions and mitigation or commutation by competent authorities of sentences imposed by the judiciary in accordance with the law; (e) The judiciary must be entitled and required to ensure the judicial proceedings are conducted fairly and that the rights of parties are respected; (f) States are required to provide adequate resources to enable a proper functioning of the judiciary.
- These principles provide a safety mechanism ensuring that the rule of law, rather than any politician or external body, controls the conduct of elections. A judiciary functioning under these principles serves both the important cause of peaceful dispute resolution and that of protecting the process from bias or fraud. The judicial role, of course, complements, and does not replace, the function of independent electoral authorities.