Democracy & Justice

What Is The Judiciary? Why Are Free Courts Important In A Democracy?

​Free courts ensure that everyone in society plays by the same rules, even the rich and powerful. But governments in Europe are trying to control their judges. This undermines democracy and weakens our fundamental rights.

by Eleanor Brooks

The judiciary is a system of courts responsible for interpreting, defending and applying the country’s law and resolving legal disputes. Most of us (hopefully) have little direct interaction with the state’s judicial branch during our lifetime, so we’d be forgiven from thinking that the court system has a minimal impact on our life.

In reality, the judiciary play a formative role as guardians of society’s core values and are a source of consistency during periods of political instability. This ensures that democratic standards are maintained during a crisis, and limits the damage that authoritarians can cause while in power.

But the courts’ effectiveness protecting democracy is dependent on their freedom.

Although the judiciary acts in the name of the state, it is separate from the legislative branch, which creates law, and the executive branch, which governs. In a democratic society, the judicial branch should be independent of the government and free from political influence.

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What is the role of the judiciary in society?

Democracy is often touted as ‘majority rules’, but the real essence of a democratic society is one in which everyone’s opinion is valued equally. One aspect of the role of the judiciary is to ensure that everyone is treated equally and protected by the law, regardless of their gender, religion, or the colour of their skin.

The political values of the government can alter drastically depending on which political party is in power. But because the judiciary is independent of the executive, our basic rights are protected from government interference, regardless of the view of the majority. This is particularly important for marginalised communities. A well-used tactic of corrupt politicians is to target and scapegoat minorities in order to distract the public from their own poor performance.

An independent judiciary ensures that everyone, including minorities, can access certain rights which can never be taken away from them. For example, in our Rule of Law Report 2023, our Belgian organisation stated that domestic courts in Belgium condemned its government for breaching its obligations to asylum seekers by failing to grant them shelter

The judiciary also plays a vital role in maintaining the rule of law by ensuring that, just like the rest of us, the government follows the law. In doing so, it ensures that any actions taken by the state must have a legal basis. This prevents power-hungry politicians from exploiting their office and helps to maintain consistency between successive governments.

What are the duties and responsibilities of the judiciary?

One of the most important responsibilities of the judiciary is to protect our rights when governments and powerful corporations try to take them away. If the state acts in a way which fails to respect our dignity, we can rely on our rights to demand better treatment and ensure the government uses its power to improve our lives. In doing so, courts breathe life into the rights that protected in constitutions and international treaties.

This is especially important during a period of crisis, when the state can legitimately use emergency powers to weaken our human rights. However, this also increases the risks these powers will be abused.

As a non-political actor, the judiciary is supposed to base their decisions based on what is written in the law and not on what a politician tells them. In last year’s rule of law report, our Polish member outlined the role the judiciary played in stopping the government from unduly restricting basic human rights and freedoms during the Covid-19 pandemic. For example, in May 2021, the Voivodeship Court in Warsaw protected the freedom of assembly when it quashed the administrative sanction imposed on a woman who was demonstrating against Poland’s abortion ban.

An independent judiciary is also crucial for ensuring free and fair elections, as well as a smooth transition of power. If an election outcome is contested, or a complaint is submitted as to the fairness of the voting procedure, the courts are called upon to decide on its outcome. In Germany, the Constitutional Court of the Land of Berlin declared that elections held in 2021 were invalid due to irregularities, including unacceptable waiting times, ballot stations running out of paper and others which listed incorrect candidates. As a result, the elections were re-held in 2023.

What is judicial independence?

Judicial independence refers to the separation between the judiciary and other branches of the state, as well as the courts’ independence from private or political interests.

This independence is crucial to the judiciary’s role as guardian of our fundamental rights. We know we can rely on the judiciary to protect our fundamental rights when they base their decisions solely on the law, without any outside influence from powerful social actors such as politicians or corporations.

We consider courts to be free if judges are selected independently, if they don’t owe their job to a political party, and if they know that they can decide cases according to the law without fear of being punished.

Sadly, despite judicial independence being a cornerstone of EU values, given the serious concerns raised by our Polish member highlighted in Liberties’ most recent rule of law report it can no longer be concluded that Poland’s court system is free. Since 2021, suspension or transfer of judges to other court departments continues to be one of the forms of repression levied against Polish judge, with the removal of certain judges having been high politicised in nature. The contents of judicial decisions cited as possible reasons for suspension.

While Poland might be an outlier in its degree of political interference, threats to judicial independence are a cause for concern in many European countries. In Spain, the process for selecting judges is politicised while in Germany, in many cases judges will only be elected for top positions if they are connected to the big political parties. In Hungary, a senior judge at the Budapest Metropolitan Court reported that he and his colleagues on the bench “have been witnessing external and internal influence attempts” for several years, including discussions of firing the investigating judge of a case involving a Fidesz (the right-wing populist ruling party) member of parliament who has been accused of accepting bribes.

Why are free courts necessary?

Free courts ensure that everyone plays by the same rules, regardless of the power and money they have at their disposal. This acts as a restraint on powerful entities and helps redistribute the enormous imbalance of power between the all-mighty state and individual citizens.

When politicians have unfettered power, there is no one to stop them abusing their public office or hold them accountable if they violate our fundamental rights. This leaves the door wide open for political leaders to act against the interests of the people, such as misusing public funds instead of spending it on local services like school and hospitals.

Procedures such as judicial review give members of the public the opportunity to respond to decisions which they believe are unfair or illegal, and increases the oversight of politicians and public bodies. Knowing that this mechanism exists discourages public servants from abusing their power and ensures there are consequences if they do.

However, when governments exert pressure on judges, not only does this disable crucial checks and balances, it also negatively influences the public’s perception of the courts. When citizens are aware of political interference in the justice system, this lowers their confidence that they will get a fair hearing or a just outcome if they take a case against the state. This in turn weakens their ability to shape society and have a say in how they are governed.

For example, France has been criticised for the lack of independence of its prosecutors, who are appointed by the Ministry of Justice rather than judicial authorities. The problematic nature of this arrangement is particularly obvious in the case of Eric Dupond-Moretti, France’s Minister of Justice, accused of a conflict of interest, who is in charge of proposing the name of his own prosecutor. The Dupond-Moretti case has raised a lot of questions about the independence of the justice system and tarnished the public’s general level of trust in French courts.

Judicial independence is essential to a healthy democracy because they ensure that everyone has equal access to legal protection, regardless of their background or social status. This is why protecting the freedom of courts is central to Liberties’ advocacy goals and one of the key issues we document in our annual rule of law report.

Further reading:

What is Judicial Interpretation: Definition, Methods

14 Principles of Democracy

What Is the Rule of Law: Definition, History, Examples, Importance, Reports

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