June 2005

The independent judiciary in a democracy

by Guest Columnist Richard P. Guy

Democracy exists in many different forms. Its essential feature is the rule of law. All democratic countries’ foundation documents reflect the political, historic, and cultural experience of the people to be governed. Foundation documents establish and provide the powers for executive, legislative, and judicial divisions to function by the sharing of governmental responsibility.

The executive function is to lead the country with policies and initiatives to the legislature, and to oversee the day-to-day operation of government. This is a political position, and the executive has an agenda that the executive and the people who support him or her agree upon.

The function of the legislature is to enact laws for the public good, to provide funding legislation for government activities, and to interact with the executive. Both divisions of government have legitimate political agendas which include receiving majority public support in elections.

It is the third division of government that is often least understood. That is because fairness, or “justice,” as we call it, requires judges to be independent without political agenda so as to render impartial decisions based on open-minded and unbiased application of the facts and the law in each case. Judicial independence does not mean a lack of judicial accountability, however. The rule of law requires that judges be independent from external political and economic influence and control, not independent from public accountability.

The benefit of judicial independence to a democracy is to assure the people that government is responsible, and that those holding positions of public trust must comply with the laws they administer. Political institutions are suspect by the people. Not every citizen agrees with governmental policies or legislation. It is the judiciary that provides to the people a forum where a citizen may claim that an interest or right has been disregarded by government, or where a business dispute may be resolved. In that forum, every citizen is presumed to be as important as every other citizen. In that forum, the citizen is treated as an equal to the government.

When people lose confidence in the integrity of their judicial forum, eventually a democracy will fail. Where the judiciary is treated as an agency of the executive, people recognize that government will always prevail and thus can be arbitrary and oppressive. A free-market economy requires a fair and independent judiciary. Business, buyers, and sellers need to know the rules and that their contractual benefits and obligations will be impartially and consistently enforced in accordance with those rules. No business is willing to place its contracts and activities into the hands of a corrupt or politically motivated judiciary, and no legitimate business will operate successfully in such an environment.

An independent judiciary is the cornerstone of any democracy, and will preserve and enhance it. An independent judiciary provides legitimacy to a government, since the people know there is a fair place to seek redress if government is thought to be unfair or oppressive. Without an independent judiciary, an unfair battle arises between the government and the governed with no acceptable means of resolution.

Retired Chief Justice Richard P. Guy served on the Washington State Supreme Court from 1989 to 2001.