Separation Of Powers: The Democratic Legitimacy Of The Judiciary

The extent to which democratic values have been upheld within the Western—more specifically Australian—judiciary has been a topic of consequential discourse. In answering the question of democratic legitimacy within the Australian judiciary, this paper will argue that the judiciary is ultimately a fundamental vehicle in upholding democratic values, where its absence denotes a critical opportunity for undemocratic error to advance. In doing so, the separation of powers doctrine and the notion of the rule of law justify the judiciary’s underlying democratic framework. However, judicial independence and its tensions with accountability remain key points of democratic contention. Firstly, this paper will assess various models of democracy and their compatibility with judicial institutions, as well as the dimensions of judicial independence. The second section will discuss the nuances of the judiciary of which align with and deviate from democratic values, ultimately deducing the triumph of democratic legitimacy within the judicial institution.

Theories Of Democracy And Judicial Independence

The distinction between democratic models provides a vital foundation for the understanding of the interaction between democracy and the judiciary. Direct and representative models of democracy—involving either the direct participation of citizens in decision-making or the election of a representative legislature respectively—hold little relevance to this discussion. In such systems, the notion of an independent judiciary is undemocratic as it inherently dismisses citizen participation in the judicial appointment process. Liberal democracy, however, founded on limitations for the protection of individual rights and the most pervasive form of democracy in the modern world, holds more flexibility for topical discourse. Evidently, judicial independence holds varying weights of importance for varying forms of democracy (Russell & O’Brien, 2001). It is also important to recognise that the absence of ideal democracy within institutions does not dictate the absence of democracy altogether. In fact, it is the extent to which a society’s democratic values are internalised within its citizens and thus, by way of public interest, advanced by its institutions which truly determines democratic status (Feldman, 1990). Democracy, in its most diluted form, allows individuals to have an input in the determination of policies.

Understanding the role of judicial independence in Australian society is also of critical importance to interrogate its resonances with the democratic model. According to Russell and O’Brien (2001), the double-faceted rationale for judicial independence is firstly, to settle legal disputes between individuals or groups and secondly, to promote the rule of law. The rule of law refers to the principle of institutional morality imposing limits on government power. Through the autonomy of the judicial body under the separation of powers doctrine, it is able to restrict the exercise of arbitrary power by the legislature and executive.

Democracy And The Judiciary

This doctrine of the separation of powers while upholding the rule of law proves significant in the democratic justification for judicial independence. Inherently, the existence of the judiciary among the separation of powers is a manifestation of democracy as the doctrine’s core intention is to evade a concentration of power in any single authority. Upon analysing the contrast of democracy and authoritarianism, by definition, the separation of powers is anti-authoritarian and thus rightly democratic. Further, the blurred distinction between the executive and parliament (Warren, 2008) evermore necessitates the existence of an independent judiciary, able to hold other arms accountable for undemocratic action—a possibility in spite of officials being democratically elected. In addition, the tendency of administrative review to insulate government officials from scrutiny in favour of efficiency over adherence to democratic values heightens the need for an autonomous judiciary (Feldman, 1990). Moreover, Dicey describes parliamentary sovereignty as the second tenet of the Western political system following the rule of law (Dicey as cited in Jowell, 2007, p. 6). As such, the idea of parliament—a democratically elected body—holding sovereignty over the judiciary reveals the inherent prioritisation of electoral democratic values.

The discretion of the judiciary in exercising autonomy in decision-making allows for the formulation of democratic outcomes. The unelected status of the judiciary does not indicate aversion to democracy (Warren, 2008). Instead, election would politicise the judiciary and corrupt its independence. Public confidence and popularity are distinguished, where within judicial procedures which correct democratic shortcomings, the justification of public interest validates their democratic values (Warren, 2008; Feldman, 1990). It becomes evident that democratic merit does indeed lie in the judiciary when the greater community upholds an attitude of legality—an attitude present within contemporary Australian society—and when the judiciary itself embodies a democratic code of conduct (Lever, 2009). Courts may also exercise democratic discretion by subverting majoritarian decision-making to advance non-majoritarian representative democracy (Brettschneider & Eisgruber, as cited in Lever, 2009, p. 806). Considering the gravity of individual rights under a liberal democratic model, a study of 177 nations conducted by Howard and Carey (2004) revealed that 87% of countries with full judicial independence categorised in high levels of political rights. However, two-thirds of those with no judicial independence categorised in lower levels of political rights, revealing a correlation between judicial independence and liberal democratic outcomes.

A key criticism, however, of the democratic validity of the judiciary is the lack of accountability to the public through an electoral process. Despite judges being selected by those who are electorally accountable, they are usually free of electoral accountability once appointed, with existing models of accountability tending to be bureaucratic (Lever, 2009). The absence of financial penalties or threat of losing votes may facilitate undemocratic decision-making. Such a lack of accountability proves that a mere allegiance to legality is insufficient for democratic title, where non-democracies with a lack of accountability may conform to the rule of law perhaps better than Western democracies (Waldron, 2019). However, existing non-electoral accountability includes the lengthy justification required for judicial decisions; appellate structures which enable reputational mechanisms to prevent undemocratic outcomes; the accessibility of court proceedings and written judgments to the public; media scrutiny; internally, the plurality of views and dissent between judges; and precedent which limits judicial discretion (Warren, 2008; Lever, 2009). These frameworks allow the judiciary to be held accountable for their decisions, mitigating deviation from public opinion and thus proving ultimately democratic regardless of the lack of electoral accountability.

The judiciary has also been criticised for being an unrepresentative body which impedes upon democratic integrity. Empirical scholars argue that the endorsement of majority voting among a small number of judges limited in diversity infringes upon the principles of representation and equality essential to democracy (Waldron, as cited in Lever, 2009, p. 805). The lack of social equality among the High Court justices in particular combined with the discretionary power of courts to overrule legislatures in the development of common law conflict with democratic theory (Lever, 2009). The autonomous exercise of discretion may override democratically founded legislation, with the doctrine of precedent reverberating possible undemocratic decisions throughout time. In spite of this criticism, however, the accountability functions and the public service expected in a judicial role limits the frequency of such occurrences which threaten democratic values.

Conclusion

Thus, the independent judiciary remains a key cornerstone of liberal democracies around the world, where its absence may give scope to tyranny.