Dimension: 1.10.2 Relations with the judiciary
This dimension concerns the relationship between parliament and the judiciary which, owing to the political nature of the former and the political impartiality of the latter, should be strictly separated under the constitution. This relationship entails both parliament’s responsibility for law-making and the judiciary’s responsibility for interpreting and applying the law.
It is the responsibility of parliament to establish a legal framework setting clearly defined criteria for judicial appointments, unambiguous and fair rules on the suspension or removal of judges, and appropriate security of tenure and guarantees of independence for judges, and to ensure that the judicial system has adequate budgetary resources.
In many jurisdictions, the system of checks and balances requires parliament’s consent in the confirmation of senior judges, and parliament has the power to impeach such judges for serious crimes or misconduct. The relationship between parliament and the judiciary also implies that the interpretation and application of the law is the responsibility of the judiciary and not parliament. In most legal systems, the judiciary has the mandate to rule on the constitutionality of laws adopted by parliament and, in some cases, even abolish them.
In addition to these formal relationships between parliament and the judiciary, the separation of powers also requires both branches to perform their roles with mutual respect and restraint. For instance, parliament’s rules of procedure may restrict MPs from making adverse comments about judges or raising matters before the courts in debate, while the judiciary may be prohibited from interfering in matters that are solely within the jurisdiction of parliament.
Aspiring goal
Assess your parliament against this dimension
Assessment criteria
No 1: Constitution
The constitution clearly establishes a separation of powers between the legislative and judicial branches. The relationship between parliament and the judiciary is based on mutual respect and restraint.
No 2: Legal framework
The legal framework, as established by parliament, sets clearly defined criteria for judicial appointments and establishes appropriate security of tenure and guarantees of independence for judges. In countries where parliament confirms and/or impeaches senior judges, it does so in accordance with this legal framework, using clear and transparent procedures, and by way of a majority or supermajority vote. Rules on the suspension or removal of judges are unambiguous and fair, and judges may only be suspended or removed for reasons of incapacity or misconduct that renders them unfit to carry out their duties.
No 3: Resources
Parliament allocates adequate budgetary resources for the judicial system to operate effectively without any constraints.
How to complete this assessment
This dimension is assessed against several criteria, each of which should be evaluated separately. For each criterion, select one of the six descriptive grades (Non-existent, Rudimentary, Basic, Good, Very good and Excellent) that best reflects the situation in your parliament, and provide details of the evidence on which this assessment is based.
The evidence for assessment of this dimension could include the following:
- Provisions of the constitution, or equivalent rules, on the separation of powers between the legislative and judicial branches, as well as procedures and practices reflecting mutual regard for their independence
- Provisions of the legal framework establishing clearly defined criteria for judicial appointments, unambiguous and fair rules on the suspension or removal of judges, and independence safeguards
- Budgetary allocations providing adequate resources to the judiciary in order for it to operate effectively
- Provisions of the legal framework establishing explicit and detailed procedures for the appointment and impeachment of senior judges
- Reports on judicial appointments and impeachments issued by parliament
Where relevant, provide additional comments or examples that support the assessment.
Sources and further reading
- The Commonwealth, Commonwealth Principles of the Accountability Accountability The level of responsibility and action taken by government actors in line with citizens’ priorities and legal frameworks. Accountability is assured through relationships which allow government and citizens opportunities to engage in two-way feedback. This enables the public to ensure that government actors are responsible, and that they act with integrity, in the interest of public priorities and in line with regulations. Accountability requires the government to acknowledge and take responsibility for decisions, actions and policies in light of agreed expectations, such as a legislative agreement between an elected official and their constituents. of and the Relationship Between the Three Branches of Government Government See: Executive. Note: In this publication, the terms “government” and “executive” are used interchangeably, and the traditional definition of the three branches of government (executive, legislative and judicial) is not used. (2004).
- National Democratic Institute (NDI), Toward the Development of International Standards for Democratic Legislatures (2007).
Get help with this assessment
The assessment of indicators involves diagnosing and considering strengths and weaknesses, i.e. the things parliament is doing well, and the things it could do better or more effectively, taking into account established good practices that are described in the indicators.
Read the assessment guidance to find out what to consider when conducting an assessment against the Indicators. Find out how to prepare, how to set the objectives of the assessment, how to organize the process, and more. Contact the project partners for expert advice.
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