Decisional independence or immunity? Testing the blanket-bar claim against law, practice, and principle
by admin on | 2025-09-02 18:40:29 Last Updated by admin on 2025-09-13 06:21:23
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Certain phrases need no Trump to pack a punch. They enjoy such universal assent and emotional pull among the great and good to crash, however muted, any scepticism. Perhaps even more than motherhood, with all its superlative bells and whistles, judicial independence qualifies as one even though Wambui and Joe public apparently always require lessons on it. We have converged on what is the ideal of constitutional democracy that could possibly be hoped for. We may not be at one of the precise formal structures of the so-called the political branches of such constitutional democracies should take, but there is, or so it is claimed, convergence that judiciary its heart and soul as paradigmatically the guardians of the order, the crowning achievement of modern, progressive constitutions. (What’s does motherhood have on that?. Promotion of a species wreaking havoc all over place and doomed to probable extinction? So what better way to shut down what, in the ordinary run of things, would be a common, (the most?) complaint about a judge — s/he got with wrong, than sorry mate, to address that would be an assault on decisional independence. This usually added as a buck-stop to what are otherwise fairly routine rejections that the complaint is being inappropriately pursued using the judicial disciplinary mechanism, instead of an appeal: “…… it was resolved that the compliant be dismissed for raising issues touching on the merits or otherwise of the court’s decision which could be redressed before the instant court, or by way of appeal, or review. The Commission observed that delving into a complaint of such a nature is outside the jurisdiction of the Commission and an affront to the decisional independence of the court” Yet, some dunces just are not up to speed. The rejection could have stopped at the first quoted sentence. Not only are we unable to discern what conceptual clarity, or explanatory elucidation that adjective decisional contributes, it might be a distortion of the whole idea. Channelling, say, Martin Redish, one of the deans of scholarship on judicial independence in the US, decisional independence is one of the four sub categories of judicial independence, whose recognition would assist in resolving swirling controversies over a supposedly constitutionally independent judiciary yet dependant on the legislature on matters such as its jurisdiction, funding etc. By his lights, each sub-category had its own specific legal grounding (constitutional text, in case of institutional and varying consideration of principles/purposes in case of the other three) which should be brought to bear on those controversies. Redish described decisional independence as: “The concept of decisional independence implies the ability of the judge in a particular case to ascertain, interpret, and apply the governing legal principles to the facts of the...read more
