Constitutional Essay

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Date Submitted: 10/31/2010 09:11 AM

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Judicial independence is one of the founding and imperative principles in any modern democracy. Independence of the judiciary refers to two ideals of a democratic state. The first is that the judiciary should enforce the law impartially; judges should not be susceptible to external influences or pressures and should not be biased in any manner. The second comes from the doctrine of separation of powers, and means that the judiciary should function independently of the legislature and executive . However, this does not mean that judges should not be at all accountable for their actions. It becomes necessary to create a balance between protecting the independence of the judiciary and the principles of openness and transparency that are just as much a part of our constitution as the doctrine of separation of powers. Therefore, this assignment will examine what the doctrine is, and why it is necessary in a democratic society. It will then examine the proposed legislation and see whether it does in fact violate the independence of the judiciary. Thereafter, it will examine whether this possible infringement is justifiable when considering both the need for judicial independence and the need for some form of accountability, as well as a need for transformation.

The doctrine of separation of powers requires each separate function of government to be performed by separate branches of government. Therefore, the functions of making law (performed by the legislature), executing the law (performed by the executive) and resolving disputes through the application of law (performed by the judiciary) should be kept separate and be performed by different institutions and persons.

The purpose of separating powers and function is to prevent and excess of power in any one person or body. However, while in theory all functions of government are separated, they are not always performed by separate personnel . This is particularly the case when looking at the legislature and the...