publications_unodc_commentary-e

Application:1.1 A judge shall exercise the judicial function independentlyon the basis of the judge's assessment of the facts and inaccordance with a conscientious understanding of thelaw, free of any extraneous influences, inducements,pressures, threats or interference, direct or indirect, fromany quarter or for any reason.CommentaryOutside influences must not colour judgment27. Confidence in the judiciary is eroded if judicial decision-making isperceived to be subject to inappropriate outside influences. It is essential to judicialindependence and to maintaining the public’s confidence in the justice system thatthe executive, the legislature and the judge do not create a perception that thejudge’s decisions could be coloured by such influences. The variety of influences towhich a judge may be subjected are infinite. The judge’s duty is to apply the law ashe or she understands it, on the basis of his or her assessment of the facts, withoutfear or favour and without regard to whether the final decision is likely to be popularor not. For example, responding to a submission that South African society did notregard the death sentence for extreme cases of murder as a cruel, inhuman ordegrading form of punishment, the President of the Constitutional Court of SouthAfrica said: 15The question before us, however, is not what the majority of SouthAfricans believe a proper sentence should be. It is whether theConstitution allows the sentence. Public opinion may have somerelevance to the inquiry, but in itself, it is no substitute for the duty vestedin the Courts to interpret the Constitution and to uphold its provisionswithout fear or favour. If public opinion were to be decisive, there wouldbe no need for constitutional adjudication . . . The Court cannot allowitself to be diverted from its duty to act as the independent arbiter of theConstitution by making choices on the basis that they will find favourwith the public.15 S v. Makwanyane, Constitutional Court of South Africa, 1995 (3) S.A. 391, per PresidentChaskalson.42