Dr. Saman Shali
(Part 6)
The independent judiciary is the fundamental pillar of a free judiciary system, a system of government in which the judicial branch is separate from and not controlled by the executive or legislative branches. This separation of powers is a fundamental principle in democratic societies.
When the executive or legislative branches exert undue influence on the Supreme Court, it can compromise its independence. This interference can take the form of attempting to control judicial appointments, pressuring judges to decide cases based on political considerations rather than the case's merits in a particular way, or undermining the court's authority.
Unfortunately, the Iraqi judiciary has generally been subject to the control of political parties and has lost its independence, leading to a lack of confidence in the institution. Below are some essential points for an independent judiciary:
1. Implementation of the Constitution: The judiciary system must adhere to the implementation of the Constitution without any pressure from any political or any other government branches.
2. Checks and Balances: An independent judiciary checks the powers of the other branches of government (the executive and legislative branches). It ensures that these branches do not abuse their authority or violate the rights of citizens. Judges can review the constitutionality of laws and executive actions, safeguarding against tyranny and government overreach.
3. Fair and Impartial Justice: An independent judiciary ensures that individuals receive a fair and impartial trial. Judges must be free from political pressure, influence, or bias, allowing them to make decisions based on the law and evidence rather than political considerations.
4. Protection of Rights: It protects citizens' rights and liberties by following the rule of law. Judges can rule on individual rights, civil freedoms, and constitutional issues without fear of government punishment.
5. Legal Consistency: An independent judiciary helps maintain consistency in the interpretation and application of laws. Judges making decisions based on established legal principles and precedent rather than political motives fosters predictability and fairness in the legal system.
6. Public Confidence: An independent judiciary enhances public confidence in the legal system. When citizens believe that courts are impartial and free from political interference, they are more likely to trust the legal system and respect its decisions.
Several critical steps are routinely undertaken to ensure judicial independence:
- Appointment and Tenure: Judges are often appointed based on merit and qualifications, with fixed or long-term tenures to insulate them from political pressures.
- Financial Independence: The judiciary should have its budget and resources separate from the executive branch to prevent financial coercion.
- Legal Protections: Judges are often granted legal protections against arbitrary removal or harassment for their decisions.
- Ethical Codes: Judges are expected to adhere to ethical codes that promote impartiality and fairness in their decision-making.
- Judicial Review: The power of judicial review, or the ability to review and invalidate unconstitutional laws and actions, is crucial to judicial independence.
In democratic societies, an independent judiciary is seen as a cornerstone of the rule of law and a critical element in protecting individual rights and maintaining the balance of power among government branches.
However, the Iraqi judiciary system is not independent in all of Iraq due to political and government interference in it is decisions. If the judiciary system wants to gain the people's trust and independence. In any case, it must implement the above principles based on the Iraq constitution and rule accordingly, not under the influence of any political or government official or external influence under any circumstances.
Previous Parts :
https://www.mirs.co/details.aspx?jimare=217
https://www.mirs.co/details.aspx?jimare=213
https://www.mirs.co/details.aspx?jimare=223
https://www.mirs.co/details.aspx?jimare=225
https://www.mirs.co/details.aspx?jimare=229
Saman Shali has a Ph.D. in Science (1981) from the University of Sussex. Dr. Shali worked as an Assistant Researcher and Assistant Professor at the University of Sussex, King Saud University, and Pennsylvania State University. He is also a senior fellow at the Mediterranean Institute for Regional Studies.