Institutional independence and the constitutionality of legislation establishing lower courts and tribunals: Part I

Abstract

The independence of the judiciary is the bedrock of the democratic system of government. Judicial independence is the gateway to the proper performance of the courts of their role of keeping all organs of state within the boundaries of their powers under the Constitution. The test for determining whether judicial independence is safeguarded is an objective one based on public confidence in the structure of the court and the impartiality of its judicial officers. The ascertainment of the independence of a tribunal depends on the mode of appointment of its judges, their financial security and whether their security of tenure is institutionally safeguarded from legislative or executive manipulation. This article lays down the constitutional basis for judicial independence; examines the test for ascertaining whether a court is independent and impartial; and links judicial independence with separation of powers. The discussion culminates in the analysis of the application of the principles of judicial independence to specific legislative schemes where the structure of the tribunal thereby established had been tested in the courts for unconstitutionality.