Are Political “Attacks” on the Judiciary Ever Justifiable? The Relationship Between Unfair Criticism and Public Accountability

Abstract

Political “attacks” on the judiciary are a well-known threat to constitutional democracy. Criticism of the judiciary by politicians is often said to constitute one form of attack when it is unfair in the sense that it is not relevant to the judiciary’s constitutional role and/or not respectful. Unfair criticism is frequently claimed to be unacceptable on the basis that it threatens judicial independence and impartiality and, therefore, the rule of law. The Article critically interrogates this claim, arguing that unfair criticism can have value as a form of public accountability of the judiciary. It can hold the judiciary to account for aspects of its decision making that should be subject to scrutiny and that other accountability mechanisms, such as the appeals procedure and the lawmaking process, do not. In particular, it is apt to hold the judiciary to account for the diffuse societal effects, values, and principles of its decision making. As a result, the justifiability of unfair criticism is contestable and context specific because it involves taking into consideration both its potential value and its potential threat. The Article evaluates the subject by drawing on the experiences with unfair criticism of the judiciary by members of the executive and legislature in Australia and the United Kingdom.