Democracy is a system of governance, its origins dates back to Greece and ancient Athens between 421 and 322 B. C. Most Western countries changed their system of governance to a representative democracy in the 19th century, mostly influenced by liberalism. Democracy, in Greek, means “Power to the People”. In this system people vote for their president, choose from different parties. In an authoritarian state, all powers are in the hand of one person, whereas in a democratic state, different institutions are in charge of different powers. The government owns the executive, the parliament the legislative and the judges the judiciary.
The task of the judiciary is to settle conflicts between citizens and in some cases between the citizens and the state. All the different powers in a democracy have a specific role. What is the role of the judiciary in a democracy? We will try to answer that question in studying the democracy and the judiciary in the first part, and then see what is its role in a democracy. In this first part we will study the democracy and the judiciary, as it is important to understand these two principles before analysing the role of the judiciary in a democracy. Democracy is the worst form of government except all the other forms that have been tried from time to time”, said Winston Churchill in 1947. From all other government organisation tried over the time, democracy is the fairest one for the people. First of all, for the first time, people vote for the politician they want to rule the country. In this organisation, hereditary or arbitrary class distinction or privileges normally disappear. Today, the majority of countries in the world are republic.
However, some important democracies in the world, such as the United-Kingdom, Luxembourg, Spain and other are constitutional monarchies. This means that having a King/Queen is not an important matter in a well being of a democracy. Democracy is by far the most challenging form of government, for politicians and for the people. In other type of government, the power is usually in the hand of only one person. It is easier to make decision and make everyone follow your rules when you are the only one making them.
In a democracy, the people elected the government. The government then has to do what the people expect him to do. If he takes decisions that are against the public opinion, the people will protest and may not vote for them in the next elections. This makes it harder for a democratic government to take big decisions, as they are always thinking about the next election. They would sometimes prefer doing nothing than offend people, despite making some decision that could, in medium term, be beneficial for the whole country. Now we will study the judiciary.
First of all, the judiciary is one of the three branches of a modern democratic state with the legislative and executive. The judiciary has to interpret the law (made by the legislative) and analyse the concordance between a concrete situation and the law by itself. It takes decision and takes a side on a case thanks to the application of the law. In most of the countries, there are several types of courts. The members of the judiciary who are part of the high or intermediate court of Appeal represent a very small as well as a very important part of the judiciary.
People have the right to Appeal to a superior authority in case of a dispute. The judge makes decision according to the law, his perception of it and his conscience. The executive or legislative cannot interfere with the judiciary during a trial. The judiciary has to arbitrate conflicts between different institutions of the state, between the state and the citizen and finally between the citizens themselves. The application of the law may be a bit confused sometimes. For example, does a crime blamed on a person really correspond to the definition of the crime such as we find it on the law?
Are the proofs given really acceptable? If yes, are the punishments planed by the law adapted with the crime? Those are the kind of decision that the judge has to take, and it is very important that judges stay independent from the rest of the government, as it is his main role in the democracy, the impartiality. That is what we are going to study in the second part. In this second part we will study the role of the judiciary in a Democracy. First of all, the judiciary is neutral. A judge doesn’t show his belonging to any political parties.
He judges the crimes trying to be as neutral as he can. In a democracy this neutrality is very important as neither the government nor any other parties can affect the judgement. The judiciary is also independent in most of the countries. It doesn’t depend on the executive or the legislative. However, their collaboration is necessary for the well being of a democracy. The legislative makes the law that the judiciary will apply on court, but this law needs to be accepted by the judges so they can apply it in the best conditions. This independency is very important.
In fact, the judges don’t owe anything to members of the executive or legislative. The judges can therefore attack the government in justice if this one doesn’t act clearly. An example of this independency and the importance for the well being of the democracy can be the judges anti-corruption in France or Italy. In addition, once they are working, it is very difficult to relieve the judges of their function, so they are able to judge in an impartial way. Justice is one of the most important institutions in a democratic government because it regulates freedom and makes sure law is observed.
Without any justice we will live in anarchy system, as no one would be afraid of the different rules implemented and would be able to do anything without being punished. An independent judiciary power ensures the democracy and the well being of the citizens. That is why modern societies have all tried to organize, within fundamental texts, the independence of the judiciary. The judiciary has to work with the legislative and executive. It follows the laws of the legislatives (judges don’t make the laws themselves) and they only judge people who are brought in by the police, which belong to the executive power.
Judges cannot take part of the political scene; they need to keep their political views personal. For example, a judge cannot be a minister or a deputy at the same time. With these measures, judges cannot be influenced in their decisions. The role of the judiciary is manifested not only in what judges do but also in how they do it. In fact, judges judge with the laws they are given, but also with their feelings, trying to be as neutral as possible. Their neutrality is not only political, but in court as well.
The judge needs to be neutral within the court, so the defendant can have a chance and is not stigmatized as the bad one at the beginning of the trial. In conclusion we can see that judiciary has a very important role in the democracy. Without this institution being independent and very neutral, the democracy wouldn’t be able to perform well, wouldn’t really be the “Power to the People”. A lack of independence in judiciary creates opacity in the processing of trials, discourages the citizens, makes them a bit more rebellious, as they don’t trust their justice, and so their government and their political regime.
Judiciary, the justice, don’t only rule with their decisions, but with the confidence that it inspires to the people. If people don’t believe in justice, they won’t believe in laws and in people making the laws, as well as in people trying to make everyone respect the law. If the judiciary is not independent of the legislative and the executives, it can lead to a democracy not as fair as what it is now, not a proper democracy in the end, so importance of the judiciary is crucial.
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