Judicial Independence as a Public Policy Instrument
37 Pages Posted: 8 Jun 2009
Date Written: June 7, 2009
The participation of judges in commissions of inquiry has been an important part of the public policy process in Canada and elsewhere. However, the use of judges for these and other extra-judicial functions is not wholly positive and the other side of the balance must be considered as well. This paper chronicles the dramatic rise of the use of judges by governments for such policy functions, arguing that it has resulted in a 'judicialization of politics' of a different sort from the standard conception of that term. The current political culture of independence and accountability has made judicial independence a highly valued political commodity that is frequently in demand by government officials. This paper argues that what public policy makers are seeking is not simply the expertise of judges but also the political capital of judicial independence which has become an increasingly valued political good in Canadian society (and likely in others as well). This paper analyzes and evaluates this trend from the perspective of judicial independence and argues that the unreflective reliance on judges for various extra-judicial functions has the potential to undermine the bedrock principle of judicial independence if it is not better managed by the judiciary in concert with the executive. This paper analyzes two cautionary tales from the use of judicial independence for public policy purposes: the Gomery Inquiry and the controversy over the Chief Justice's involvement in the award of the Order of Canada to abortion activist Dr. Henry Morgentaler. Finally, this paper ends with the argument that taking judicial independence seriously necessitates that judges develop a framework for the consideration of extra-judicial functions and begin to exercise greater discretion in refusing to take on executive functions at times, lest the political currency of judicial independence become devalued over time.
Keywords: judicial independence, judges, Canada, public policy, extra-judicial, abortion, public inquiries, commissions of inquiry, executive, judiciary
JEL Classification: K19, K4, L38
Suggested Citation: Suggested Citation