publications_unodc_commentary-e

WHEREAS the importance of a competent, independent andimpartial judiciary to the protection of human rights is givenemphasis by the fact that the implementation of all the otherrights ultimately depends upon the proper administration ofjustice.WHEREAS a competent, independent and impartial judiciary islikewise essential if the courts are to fulfil their role in upholdingconstitutionalism and the rule of law.CommentaryConstitutionalism10. The concept of constitutionalism has been explained in the following terms:The idea of constitutionalism involves the proposition that the exercise ofgovernmental power shall be bounded by rules, rules prescribing theprocedure according to which legislative and executive acts are to beperformed and delimiting their permissible content. Constitutionalismbecomes a living reality to the extent that these rules curb thearbitrariness of discretion and are in fact observed by the wielders ofpolitical power, and to the extent that within the forbidden zones uponwhich authority may not trespass there is significant room for theenjoyment of individual liberty. 2Rule of Law11. The relevance of an independent and impartial judiciary in upholding therule of law has been articulated thus:The reason why judicial independence is of such public importance isthat a free society exists only so long as it is governed by the rule of law .. . the rule which binds the governors and the governed, administeredimpartially and treating equally all those who seek its remedies oragainst whom its remedies are sought. However vaguely it may beperceived, however inarticulated may be the thought, there is anaspiration in the hearts of all men and women for the rule of law. Thataspiration depends for its fulfilment on the competent and impartialapplication of the law by judges. In order to discharge that2 S.A. de Smith, The New Commonwealth and its Constitutions (London, Stevens, 1964),p.106.27