法學(xué)專業(yè)外文翻譯新聞自由與司法獨(dú)立的沖突與平衡-法律法學(xué)-wenkub
2023-05-18 22:26:38 本頁面
【正文】 that equality before the law will not exist. Uniformity, consistency and certainly in decisions, will be accidental. The achievement of a manifestly disinterested and impartial application of legal rules will not be a feature of such a 5 society. The constitutional provision of a judicial branch of government, and the formal assurance that it is separate and independent of the other branches, represents the main way by which most states seek to ply with the principles contained in the foregoing provision of the ICCPR. The judicial branch does not, typically, include all those who, in a given society, make decisions by applying preexisting law to proved facts. Nowadays, there are many tribunals, statutory decisionmakers and others who have that responsibility. Nevertheless, a constitutional statement guaranteeing the independence of the judiciary is a good start. Symbolically, it involves an endorsement of the principles and makes departures from them more difficult because they will need to be more public. Total separation of the judicial power is not possible in the real world. In many countries, the Executive Government appoints judges. The legislature provides for their salaries and pensions. It funds the activities of the courts. To give content to the provisions of Art ICCPR, it is therefore necessary to go beyond the letter of a written constitution. It is essential to breathe life into the sparse language of the ICCPR. This requires a reflection upon the constitutional struggles, past and present, by which people everywhere have been seeking to attain the kind of human right to which Art gives expression. It is not necessary to be a sophisticated investor in Hong Kong or a worldweary lawyer in Australia or the United States, to realize how important it is that a conflict, serious enough to e to formal decisionmaking in a court, should be resolved by a decisionmaker who is petent, independent and impartial. Even a person living in a most primitive society will aspire to that objective when confronted with the need to approach a decisionmaker. A judge without independence is a charade wrapped in a farce inside oppression. The conventions which must supplement textual assertions of judicial independence reach deep into the history of each people and each legal system. In the countries of the mon law, judicial independence received important constitutional reinforcement when King James II of England was driven from the Kingdom in the Glorious Revolution of 1688. His successors, William and Mary, were only accepted by the people on condition, amongst other things, that they promised to respect the tenure of the judges essential to their true independence of mind and of action. The principle, and the way it was achieved by revolution, ensured that for England, brutal intimidation of the judiciary would not again occur. Other, more subtle means might be tried by successive 6 Executives and legislatures to attempt to influence judges and affect the oute of their deliberations. But at least for the superior judiciary of England, the threat of dismissal because the Crown did not like a particular oute, was lifted. This revolutionary achievement was to bee a model which was eventually extended to the constitutions of all other countries of the mon law. It provides the formal assurance in those countries of the type of judicial independence for which
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