publications_unodc_commentary-e

Independence distinguished from impartiality24. The concepts of “independence” and “impartiality” are very closely related,yet separate and distinct. “Impartiality” refers to a state of mind or attitude of thetribunal in relation to the issues and the parties in a particular case. The word“impartial” connotes absence of bias, actual or perceived. The word “independence”reflects or embodies the traditional constitutional value of independence. As such, itconnotes not merely a state of mind or attitude in the actual exercise of judicialfunctions, but a status or relationship to others, particularly to the executive branchof government that rests on objective conditions or guarantees.Judges not beholden to government of the day25. The adoption of constitutional proclamations of judicial independence donot automatically create or maintain an independent judiciary. Judicialindependence must be recognized and respected by all three branches ofgovernment. The judiciary, in particular, must recognize that judges are notbeholden to the government of the day.They see governments come like water and go with the wind. They oweno loyalty to ministers, not even the temporary loyalty which civilservants owe. . . Judges are also lions under the throne but that seat isoccupied in their eyes not by the Prime Minister but by the law and theirconception of the public interest. It is to that law and to that conceptionthat they owe allegiance. In that lies their strength and their weakness,their value and their threat. 10As a judge observed during the Second World War, 11In this country, amid the clash of arms, the laws are not silent. They maybe changed, but they speak the same language in war as in peace. It hasalways been one of the pillars of freedom, one of the principles of libertyfor which on recent authority we are now fighting, that the judges are norespecters of persons and stand between the subject and any attemptedencroachment on his liberty by the executive, alert to see that anycoercive action is justified in law.10 J.A.G. Griffith, The Politics of the Judiciary, 3rd ed. (London, Fontana Press, 1985), p.199.11 Liversidge v. Anderson, House of Lords, United Kingdom [1942] AC 206 at 244, per LordAtkin.40