ABSTRACT
Independent decision-making is widely accepted as the backbone of criminal justice in democratic societies. That independence is based upon two fundamental elements: the rule of law, and the separation of powers between executive and judicial functions. These principles ‘aim to prevent, through law, the arbitrary or tyrannical exercise of state power and to enhance thereby society’s faith in government’ (Manderson 2008: 222). Conversely, the appropriate and lawful exercise of the law can be assessed by reference to the independence of the decisions made. For example, one of the key distinctions between lawful and arbitrary (unlawful) detention is the independence of the authority ordering it. As the International Convention on Civil and Political Rights states:
anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. (article 9:4)
The European Convention on Human Rights provides similarly for the lawfulness of detention to be reviewed by a court (article 5:4), and further that a fair hearing is dependent upon an ‘independent and impartial tribunal established by law’ (article 6:1). Even historical alliances such as the Commonwealth of Nations have committed their
members to ‘fundamental political values’ which include ‘democracy, democratic processes and institutions which reflect national circumstances, the rule of law and the independence of the judiciary, just and honest government’ (Harare Commonwealth Declaration 1991, para 9:2). Thus, the importance of judicial authority acting independently from the state is well established in international law.
