"It Is Absolutely Necessary For The Successful Functioning Of The Rule Of Law That The Judiciary Be Elected." E. Wilson. Discuss.

1729 words - 7 pages

Judicial selections, either by election or appointment, are presently the most common methods of choosing judges. There is much debate over whether judges should be independent arbiters of legal principle or should be held accountable to the electorate.1 Intrinsic tensions, in the choice of a particular selection method, can have deleterious effects on the justice system.2 The decision on whether it is more practical to have judicial independence or judicial accountability may be determined by the actual role a judge performs. But what is the perceived role of judges and does this role lean towards judicial independence or accountability? It is therefore the intention of this essay to discuss the role of judges, and the potential impact elected and appointed judges have on the successful functioning of the Rule of Law. It is also the intention of the author to refute the claim made by Dr Eric Wilson in his statement "It is absolutely necessary for the successful functioning of the Rule of Law that the Judiciary be elected."Rule of LawThe phrase the 'Rule of Law' is not easily defined and is often used in a number of different senses. In the context of this essay the essence of the Rule of Law is defined as "all authority, including the governing force in society, [being] subject to and constrained by the law".3 In other words the government is also subject to the rules that govern ordinary citizens. This requires an independent judiciary free from improper influences.4 For instance, a judge favouring a lawyer or governing body would cause confidence in the system to deteriorate and the Rule of Law to break down.5 Loss of confidence in the impartiality of the judiciary may lead to a general disrespect of the law.6 Once citizens lose confidence in the judicial process they may turn to other means to assert their basic rights.7The Role of the JudiciaryIf judges have no discretion in their decisions but are merely employed by their outstanding ability to select the most appropriate rule from some corpus juris then judges are not directly accountable to the electorate but are principally appointed on merit.8 The likelihood of fallacious decisions would be minimal because an appellate review would be readily available.9 On the other hand if judges have discretionary powers in their decisions that are merely based upon personal and/or political beliefs then judges must be directly accountable to the electorate and submit themselves periodically for re-election.10 In reality, the role of the judiciary cannot be so easily defined. There is an overlap between the spectrum of accountability and independence.11 With this in mind one still has to make a decision whether to appoint or elect judges.Elected JudiciaryIndependence, integrity and impartiality are incongruous with political campaigns. Judges are not politicians and should not have a constituency.12 Judges represent the law and therefore should not be accountable to an electorate.13 However, it has...

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