JUDICIAL INDEPENDENCE AND THE PROTECTION OF HUMAN RIGHTS
Dicey did not contemplate the need to refer to a Bill of Rights, albeit, the
existence of Magna Carta. But, doubtless, as commentators have observed
Dicey may be taken to have expected human rights laws to form part of the law.
The Unive sal Decla ation of Human Rights links the protection of human rights
with the rule of law: ‘a modern democratic society would find it unacceptable for
a totalitarian state to assert that it observed the rule of law’. However, again, as
Lord Bingham observed ‘there is no universal consensus on the rights and
freedoms which are fundamental, even among civilised nations.’
To talk about rights is, inevitably, to talk about law. Rights presuppose a
framework of demands which constrain and direct the manner in which force
may be exercised. The only way in which demands on the exercise of force can
be expressed in civic society is through law. Without the law to give them
tangible expression, rights become nothing more than aspirations. Law is, as
Spinoza said, the mathematics of freedom.
As judicial independence is integral to the rule of law, which is a necessary
presupposition for the protection of individual rights, it follows that judicial
independence is integral to the assertion of human rights. Without an
independent Judiciary, it is impossible to imagine citizens having tangible human
rights capable of being asserted against the state. As former Chief Justice
Gleeson observed, ‘the independence of judicial officers is a right of the citizens
over whom they exercise control’.
6Judicial independence in that sense, is itself a human right, insofar as it is the
human right which presupposes the unfettered enjoyment of all others. It is for
this reason that Article 10 of the Universal Declaration of Human Rights and
Article 14 of the International Covenant on Civil and Political Rights both require
an independent and...