An Independence of Judicial Power Under the System of Justice: Study Case In Indonesia, Malaysia and Brunei Darussalam

Ismaidar; Yasmirah Mandasari Saragih

Abstract

This paper is based onthe concept of judicial independence. Judiciary is one of the organs of the state. The independence of the judiciary is the cornerstone of a democratic system. Without independent judiciary, people cannot get justice. Only the independent, impartial and accountable judiciary can protect the rights of the minorities and the indigenous communities. Independent judiciary can maintain the delicate balance between the three major organs of the state.Some of internationally recognized principles have been incorporated in our present constitution. But judicial autonomy, freedom of expression and association, professional immunity are not incorporated. Our judiciary lacks functional autonomy to determining the jurisdiction of the court, selecting its support staff. Another issue concerning the financial independence of judiciary which are must for an independent judiciary. Judicial training and judicial education is necessary for independence of judiciary. Role of national judicial academic is satisfactory in this regard. Competent, independent, and impartial courts will also depend also on the judges who have integrity, ability with appropriate training and higher qualifications in law enforcement. It is influenced by several factors.The guarantee of judicial power independence by the constitution, the competence and capacity of judges in carrying out judicial functions and the quality of court. Judicial power as an independent and autonomous power must be freefrom any intervention and power, thus ensuring that judges possessindependence and impartiality in handling cases.In this way, judicial independence means freedom from direction, control or interference in the exercise of judicial power by either the executive or legislature. Independent judiciary is backbone of the democratic state. In the beginning of the development of the concept, functional independence of the judiciary was regarded as sufficient requisite. But in modern era both structural and functional independence are equally important for independence of the judiciary.Beside these, the court must be impartial and competent.