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According to the Legal Dictionary, Sovereign immunity is a lawful policy that cushions governments, political individuals or state officials from legal suits without their knowledge. (Sovereign immunity, n.d) The etymology of sovereign immunity is traced back to England. It theoretically absolved the king from any misconduct. It was not until the thirteenth century when it officially into function and later found its way into the United States of America. (Alexander and Alexander, 2005, p.632)
A scholar (Shortell, 2008) argues that sovereign immunity remarkably helped in the protection of state’s coffers from financial rewards given out by the judiciary. (p. 28)
“Concern about debts was the driving force behind the states’ insistence on the protection of sovereign immunity. Indeed, the state was attempting to protect its treasury from monetary judgments by courts” (p.28)
Sisk, Noone, Steadman and Lester (2006) the school of thought that affirms the shielding of government from judicial suits enhanced the provision of government policies and ideologies that would have resulted to a public outcry, more so from the civil society. (p.92) “Congress response to the problem of sovereign immunity, seeking to find the appropriate priate balance between allowing access to court relief and protecting important government policy operations from judicial intervention” (p.93) However, Avery (2009) asserts that by the virtue of the sovereign immunity, the fundamental role of the governments to remain accountable to its citizens is highly compromised. “Sovereign immunity assumes that providing the government immunity so as to safeguard government treasures is more important than ensuring government accountability” (p.25) However, doing away with sovereign immunity would lender the government unprecedented monetary constrains. (p.25)
“Abolishing sovereign immunity would impose financial burdens on the government” (p.25)
Avery (2009) argues that the protection of public officials and the government through the Sovereign immunity concept continues to generate collective disparities in the society. (p.60) Moreover, the courts, in applying sovereign immunity, shelf themselves from the realities of racism and ethnicity in the United States (p.60) “Courts, through its intent requirement, not only ignores relevant history but also disregards the profound impact that race and ethnicity continue to have in the United States” (p.60) According to Waters (n.d, p.12) the absence of justice arises when appeals become the only avenue for challenging judges’ partisan rulings. In this perspective the ideology of sovereign immunity greatly serve as the litmus tests for judges’ competency in their service to the public. In the observation of state immunity, judges become the centers of interest in cases involving the governments.
Although the notion on sovereign immunity mitigates the government against public outcries, it should with innermost ability derive good services to the people and uphold accountability. This will ensure that fundamental services are provided to the public without public officers disguising in the concept. For instance, the governments should be in the forefront in ensuring all public officers endorse integrity in the course of their duties, for example enhancing transparency in public projects to avert corruption.
The US supreme court is involved in a case, whereby, a mother files a petition (Affidavit) seeking the courts permission to have her 15 year old physically challenged daughter go through a minor surgery consequential in the removal of her appendix. The court, under a Circuit Judge gives a go ahead over the matter. However, upon marriage the daughter on realization that she can’t bear children seeks legal redress against her mother. The suit involving the daughter’s mother, the Circuit Judge, the doctors who carried out the operation and the doctor’s hospital is occasioned by the daughter’s quest for compensation for infringement on her constitutional rights.
However, the legal structure requires a representation of state action that happens to be the Circuit Judges approval of the petition; therefore the District Court absolves the Circuit Judge from blame owing to judicial immunity. In addition, the Court of Appeal quashes the decision noting that the fundamental issue remains that the Circuit Judge did not act within his jurisdiction and was not immune to damages liability leading to the depriving of his exception. This was occasioned by his negligence to follow the ideal due process. However, the Indiana law allowed the Circuit Judge the authority to consider and act upon the petition for sterilization thus was, immune from damages liability even if his approval of the petition was in error.
“Judges individually shall be free, and it shall be their duty, to decide matters, in accordance with their assessment of the facts and their understanding of the law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect from any other quarter or for any reason” (Olowofoyeku, 1993, p.1) Driven by the above quotation, the judiciary remains the only arm of government enjoying outmost immunity against legal suits. The decision by the court on the daughter permitting the mother to foresee the minor surgery of the daughter was in contravention of the judicial immunity, since according to Stsich (2005) the criminal statutes don’t position a judge as invulnerable in regard to constitutional rights. “The criminal statutes do not state that a judge is immune when he violates either civil or constitutional rights” (p.89)
However, Silver (2003) argues that claims of setup do not amount to the violations of human rights as fronted by the daughter. Exercising absolute immunity in the judiciary would be detrimental since the judges involved would disguise their abuse of power and corrupt activities by finding solace in judicial immunity. For instance, a judge may be involved or have close relationship with an accused person implicated in corrupt or other illegal activities, but the judgment offered fails the neutrality test.
Therefore measures to safeguard the public against such acts of omission would be geared towards the realization of a competent and impartial judicial system (Waters, n.d, p.2).
Judicial Immunity should be truncated to ensure that judicial officers do not exploit it at the expense of the public. (Silver, 2003, p.746)
The judiciary as the hallmark of justice, should with zest articulate its core mandate and expeditiously carry out its work free from interruptions. It should also at great lengths observe impartiality. In this regard it will remain as a pacesetter for other government agencies to emulate. In conclusion, the immunity of judges continues to face considerable outcry from those parties that judgments clearly jeopardize. Therefore, regulation of immunity should be isolated in order to generate a level playing field for the parties involved in legal suits. For instance, judicial officers should abhor themselves in engaging in suits that can lead to conflicts of interests.