Politics Stack Exchange is a question and answer site for people interested in governments, policies, and political processes. It only takes a minute to sign up.
Sign up to join this community
While a constitutional democracy requires an independent judiciary, the same cannot be elected by popular vote. One possible way is that the Executive head would appoint and promote the judges, but this can be misused to hamper the judiciary's independence.
India is facing a similar problem right now. Please point out how other democracies have worked out this problem of maintaining the judiciary's independence as well as to keep them under democratic check?
Each country has its own mechanisms to enforce judicial independence but there are at least three common themes:
You cannot remove judges from office on a whim, nor can you withhold a judge's salary or make their decisions dependent on being reelected/renominated. That is, you cannot bully them into submission by stripping them of their livelihood. In some places judges get a life tenure; in others (h/t Chirlu) like Germany, judges can't get re-elected.
You cannot influence what a judge investigates. That is, you can't boss them around so they investigate a pet case nor can you prevent them from investigating anyone. (This comes with a few caveats in some countries, to shield elected officials from distractions while in office. And as noted by Peter, this only applies in countries with an inquisitorial system. Things are murkier in adversarial systems, in the sense that a prosecutor may or may not get similar protection.)
You can grant some or all judges the power of judicial review. That is, you give judges the power to strike down parts or all of a law for not being constitutional.
Firstly we should take into consideration that having an independent judiciary is a relative idea and is therefore heavily subject to perception. While I'm not making a comment on the effectiveness of any particular approach this is still important.
Secondly we should consider who exactly the judiciary is supposed to be independent from, It can't be independent of everyone so this is an important question.
Using England (and perhaps other parts of the UK) as an example. The judiciary is appointed by the queen officially however the appointments are selected by the judicial appointments committee (JAC) which is it's self appointed by the Lord chancellor (who is a member of the cabinet) who may accept or reject candidates proposed by JAC hence there is a democratic check of sorts.
As you can see the appointments are relatively independent. However, they only remain so providing that the majority of JAC and the lord chancellor allow it to be even with his somewhat limited power the lord chancellor could appoint JAC member that align with his views and hence judges would then be more likely to align with his views. This could be said to be a democratic mechanism of sorts.
The point I'm making here is that appointments can only be independent up to a point and only if those making the appointments wish it to be. Too many democratic checks can also risk the judiciary losing some independence.
Additionally prior to 2005 judges were recommended to the Queen directly by the lord chancellor hence independence was somewhat limited.
There are many other options most of which are either dependent on a government body/Representative or the electorate including:
As you can see none of these approaches make the judiciary entirely independent they simply displace the dependency from one place to another. Although you have said that election will not produce an independent judiciary it might disperse the dependency the most and hence produce the most independent judiciary. Anything more independent than this and your potentially looking at internal appointment systems but this simply makes the judiciary dependent on itself which could have other issues e.g. lack of transparency, internal political self serving.
TL;DR: there are many different potential approaches to judicial appointments but only so much independence can be achieved before it is simply depending on another entity/person/the electorate and democratic check are at risk of eroding Independence.
The judiciary as an independent entity from the government came first, democracies evolved later. When a government, even a democratic government, would operate in a way so as to make the judiciary not be independent, then that would undermine the government's authority. It only takes a small fraction of the population to start to have doubts about the legitimacy of the system to cause it to collapse. A democratic system is much more vulnerable to such pressures than a dictatorship, but even a dictator would rather have a population that accepts its rule than a population that constantly needs to be repressed.
What would happen if the government is able to influence judicial rulings, is that opposition supporters will start to have doubts about the entire system. The government will have a difficult time getting its legitimacy back, if there is a lack of independent oversight. If that leads to 10% of the population to decide that they are not going to pay their taxes because they think the entire system is rotten (e.g. if there is corruption but the government gets away with it), there is then nothing the government can do to enforce the law on these people; there would be way too many people who are violating the law. So even if, say, 70% of the population strongly support the government, that's not good enough to allow the government to stay in power.
The system would have to be changed to make sure any government gets enough consensus from the population to be able to rule, an independent judiciary is an essential part of making sure that this can work. Now, under a dictatorship, it's easier to deal with a lack of consensus. The judiciary as it exists today has evolved under such undemocratic systems for millenia. This allowed controversial decisions to usually get enough acceptance from the population, instead of such decisions always leading to revolts against the King. If questions were raised, the King could always point to the fact that he didn't make the decision himself. Later when democratic systems appeared, these systems could only work because of the existing judiciary.
