YALE LAW SCHOOL
THE GLOBAL CONSTITUTIONALISM
SEMINAR
16 SEPTEMBER 2000
COURTS & POLITICS:
JUDICIAL INDEPENDENCE
SUMMING UP
Michael Kirby
DIVERSE
CHALLENGES TO JUDICIAL INDEPENDENCE
The closing session of the Yale Global
Constitutionalism Seminar in September 2000 addressed an
issue important to all of the participants.
This concerned judicial independence and the way
that it could be assured and protected in the environment
in which all courts, but especially final constitutional
courts, operate. Inevitably,
courts, especially final courts, are involved in decisions
about sensitive and controversial topics, often of great
significance to the societies affected. It is in this context that judicial independence
is at once essential and sometimes endangered.
Judicial independence is expressly or
impliedly guaranteed by the constitutions of virtually every
country. It is also recognised in international instruments
expressing fundamental human rights. Thus Article 10 of the Universal
Declaration on Human Rights provides that "everyone
is entitled in full equality to a fair and public hearing
by an independent and impartial tribunal, in the determination of his rights
and obligations and of any criminal charge against him". Similarly, Article 14 of the International Covenant on Civil and Political
Rights provides that "in the determination of any
criminal charge against him, or of his rights and obligations
in a suit at law, everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial
tribunal established by law".
Regional charters of human rights and other transnational
instruments reinforce and supplement these universal principles. The three indispensable features of a modern judiciary are therefore:
competence, independence and impartiality.
The judiciary itself must defend these essential
characteristics. But
they also require support from governments, legislators,
administrators, the media, civil society organisations and
the community generally. Without a judiciary exhibiting these qualities,
it is impossible to sustain democracy, respect for human
rights or the rule of law.
It was recognised that, in particular
national circumstances, special issues are presented, involving
challenges to the independence of the judiciary.
Thus, whereas most participants in the seminar were
from developed countries with established judicial and legal
systems, many countries of the world (perhaps most) do not
enjoy these blessings. For example, in a country such as Cambodia, where the judicial and
legal systems were destroyed by successive invasions, revolutions,
wars and genocide, the presuppositions of judicial independence
have to be completely rebuilt or established, effectively
for the first time. Many countries are in this position.
Moreover, in some developing countries,
which inherited judicial and legal systems from colonial
times, it remains necessary to establish and reinforce judicial
independence in circumstances where expatriate judicial
officers are being replaced by locals and indigenous notions
of justice are being called on to replace or supplement
imported ways.
Even in countries with established courts
and legal systems, it is sometimes necessary to tackle extremely
sensitive questions affecting judicial independence. Thus the Seminar considered the special challenges presented to
a number of societies of Europe as they had moved from autocratic
to democratic governance.
The way in which, in such societies, incumbent judges,
appointed by the previous regime, were continued in office
or removed presented acute challenges to the principle of
judicial independence where that principle was invoked to
preserve the maintenance in office of judicial incumbents
discredited by past associations and service.
A reflection upon the variety of the challenges
to judicial independence in the foregoing circumstances,
and the differing ways in which different countries have
responded to such challenges, suggested a need to avoid
hard and fast rules. Instead,
the diversity of the problems for judicial independence
called forth a recognition of the need for diverse answers
to the question of how, in a particular society, judicial
independence could be defended and strengthened, consonant
with the defence of other human rights and fundamental freedoms.
THE
VARIED RESPONSES TO SUCH CHALLENGES
Much of the session of the Seminar was
devoted to identifying initiatives that might be considered,
depending upon local needs and traditions, to reinforce
judicial independence and to defend it from attack.
The following list of ideas, assembled in no particular
order of priority, illustrates the variety of initiatives
that have been taken to uphold judicial independence around
the world:
1. Reinforcing a culture of respect: Several
participants emphasised the need to build, and constantly
to reinforce, a culture of respect for the value of judicial
independence. One suggested that, in some legal traditions,
this would effectively require a "cultural revolution"
because of past attitudes of disrespect for, and interference
in, judicial activity.
Somehow it is necessary for other organs of power
in society to realise that the independence of the judiciary
is needed not for the judges personally but for the proper
performance of the judges' duties as such for the people
they serve. In this sense, such independence is a value
belonging to the people, a fact emphasised by its inclusion
amongst the statements of fundamental human rights.
Participants paid a special tribute to one of their
number, Justice Aharon Barak, President of the Supreme Court
of Israel, for his sustained efforts, over an extended time,
in sometimes difficult circumstances, to assert and maintain
the independence of judicial office. But Justice Barak is not alone.
There are many judges who, in circumstances of danger
and difficulty, daily exhibit the qualities of independence
from external pressure that afford the surest foundation
for the culture essential to sustain constitutionalism and
the rule of law.
2. Constitutional protection: The
special necessity of building an effective means of upholding
constitutional government and public law review of governmental
decisions by the judiciary was recognised.
It is here that the interface between the judiciary
and the other organs of government becomes most apparent.
It is here also that political retaliation against
judges who make decisions unpopular to powerful interests
can sometimes occur. Because
of that risk, the need for effective constitutional protections
for the tenure, salary, immunity and pension rights of judges
must be provided. Effective redress in the case of attempted
retaliation for undesired judicial decisions should also
be afforded under domestic constitutional provisions.
Such protection is necessary.
But it is not sufficient.
3. Judicial councils: Several
participants mentioned the desirability of affording a collective
means for protection of, and support for, judges the subject
of calumny or threatened retaliation for their decisions.
Where judicial councils exist, there is a need for
them to perform their duties mindful of the necessity, on
occasion, to speak up for judges who are subject to attack.
4. Support from leaders: When
the courts come under attack for performing their judicial
duties, it is important that political leaders, Attorneys-General,
leaders of the legal profession, legal academics and others
should come to the defence of the judicial institution.
The need to inculcate the importance of such defence
was accepted; but it was recognised that in some countries
the old conventions by which the judicial institution was
formerly defended by the Attorney-General or some other
such political officer, were less commonly observed today
than it had previously been.
5. Independence and impartiality: Maintenance
of a high reputation for competence and impartiality was
seen by many as a prerequisite to the defence of judicial
independence. In a sense, courts must constantly earn and retain the respect of
the other institutions of government and of the general
community. It cannot be assumed or simply demanded.
Such respect is largely dependent upon the manifest
integrity with which judges perform their duties.
This depends largely on the judges themselves.
6. Appointments: The participants
discussed the importance of systems of appointment and transfer
of judges for the assurance and maintenance of judicial
independence. The different systems in force in several countries
were examined according to the criteria of how they contributed
to the defence of judicial independence.
7. Misuse of promotion: The dangers
for the independence of the judiciary commonly lay not only
in monetary corruption or bullying and improper pressure
from external forces. More subtle pressures could sometimes be deployed
by governments where they enjoyed the powers of judicial
appointment and promotion.
The dangers to vigilant independence on the part
of judges, ambitious for appointment or promotion to a new
or higher office, was described (by analogy with the cardinalate)
as "scarlet fever".
Peer pressure for maintaining an appropriate distance
from politicians and appointing authorities, and the improvement
and greater transparency of systems of appointment and promotion,
were mentioned as means for preventing abuse of such powers.
8. Social context: It was generally
agreed that courts, operating in the real world, had to
respond to the societies they serve but without falling
victim to hyper-politicisation.
The participants discussed the merits of creating
separate constitutional courts or maintaining constitutional
law as an integral part of the general law administered
in the ordinary courts.
The greater capacity and willingness of separate
constitutional courts to develop doctrines defensive of
judicial independence was discussed but without any clear
consensus, given the different institutional traditions
represented at the Seminar.
9. Discipline: Where, occasionally,
it is necessary to consider discipline of a judicial officer
for an alleged breach of non-criminal rules of conduct or
ethics, it was generally felt desirable that this should
be initiated internally within the judiciary rather than
externally by other organs of the government. Whereas judges should have no immunity from
the general criminal law, the performance of their duties
was almost certain to leave at least some parties to litigation
before them disappointed and aggrieved.
Because this is the very nature of the judicial function,
it necessitates appropriate protection for judges from malicious,
ill-informed or misconceived complaints. The provision of an effective procedure for
discipline, in a way respectful of judicial independence,
presented a challenge which has been addressed in different
ways in different countries.
10. Court funding: In several
countries, provisions have recently been adopted to ensure
the independent funding of the courts so that they are removed
from inappropriate financial pressures from the legislature
or the executive government. The introduction of a court's control of its
own budget protected the judges from some political pressures
imposed by the power of the purse.
On the other hand, it diverted them, to some extent,
from the performance of judicial duties and inevitably involved
the giving of a close account to the legislators who were
accountable to the people for the funds raised by taxation.
11. Specialised reporting: Accounts
were given of the ways in which, in particular countries,
specialist reporters covered the work and decisions of the
highest courts. By providing information to the community through the media, such
reports can contribute to reinforcing general appreciation
of the work of the courts and of the importance of defending
judicial independence. The appointment by courts themselves of media
liaison officers is also a feature in many countries. Such initiatives recognise the practical constraints
within which the media operate and their need for assistance
to communicate, simply and quickly, the often complex concepts
of legal reasoning contained in the decisions of the courts,
so that they will be understood, reported accurately and
not trivialised or misrepresented.
12. Court correction: In some
cases of misreporting, facilities exist in particular courts
for the publication of a court statement correcting the
misreport and putting the record straight.
Such corrections are normally very brief.
But whether they will be published by the media,
to repair erroneous information about a particular court
decision, is largely in the gift of the media themselves.
13. Courses for reporters: In
some countries, to repair misreporting and misunderstanding
of judicial decisions and functions, briefings are given
to reporters and even short courses instituted to explain
the working and functioning of the court and the meaning
and significance of particular decisions. The extent to which courts themselves should be involved in such
activities was the subject of debate.
14. Response to criticism: Differing
views were expressed concerning the desirability and wisdom
of responding to criticism of the judiciary generally or
criticism of particular judges or decisions.
Some participants favoured the maintenance of a dignified
silence. Many spoke
for the general wisdom of self-restraint. Some suggested the facility of off-the-record
briefings for the media to explain the judicial function
and role, not always understood by the media, the general
community or even political leaders or officials.
The designation of particular judges to perform liaison
with the media was instanced as an initiative that might
sometimes be appropriate.
15. The contempt power: In those
societies where the power to punish critics of the judiciary
for contempt of court is constitutionally available, it
was generally agreed that such provisions should be reserved
to the most serious cases. Normally, where any criminal offence had occurred,
it was preferable that those alleged to be guilty should
answer only for such crimes and not for contempt.
On the other hand, instances were given to the Seminar
of sustained media harassment of particular members of the
judiciary for decisions unpopular to the particular interest
concerned, including the media. The need in extreme circumstances to afford
an effective institutional response on the part of courts
to such conduct was considered with particular reference
to some recent glaring examples.
16. Mutual independence: Part
of the discussion at the Seminar turned to the necessities
and limits of total judicial independence.
Whereas a judge in modern circumstances could be
expected to cooperate with colleagues and, within the law,
to perform duties assigned to him or her, it was also recognised
that judges, particularly in collegiate courts, must maintain
a measure of independence from each other.
Judicial independence included independence from
inappropriate pressure to join in, or change, opinions to
accord with those of other judges. Maintaining independence of mind in a practical
context of an efficient judicial institution presented something
of a paradox but one that was ordinarily resolved in a satisfactory
way.
17. Codes of judicial conduct: There
was much recognition of the fact that a feature of judicial
independence was the accountability of the judiciary to
the hierarchy of appeals and judicial review and to proper
systems of determining complaints about misconduct, capacity
and judicial performance.
Differing views were expressed about the desirability
of having a formal code of judicial conduct, such as exists
in several countries. In others, where such a code has not been introduced,
a fear is sometimes expressed that specification of rules
of conduct, hitherto governed by convention and common sense,
will afford critics of the judiciary new weapons with which
to attack the independence of its members.
18. Erosion of professionalism: Encouraged
by reflections on Dean Anthony Kronman's book The Lost Lawyer, there were a number of observations about contemporary
erosions of professionalism in the legal profession generally
and of the judiciary in particular.
The pressures imposed on the judiciary by increasing
case loads, new methods of case management and the shift
from oral to written advocacy presented needs to maintain
an ethos of high professionalism in a rapidly changing work
environment. It
was recognised that today's judiciary could not simply assume
the continuance of attitudes of deference and respect that
had existed in the past. New ways had to be found to earn community respect which was the
surest reinforcement for judicial independence.
19. Expecting criticism: The participants
were reminded by members of the Faculty of the strong traditions
of the First Amendment in United States constitutional law
and of the right of citizens to criticise every branch of
government, including the judicial branch.
To varying degrees, this tradition finds reflection
in public and constitutional law of virtually all of the
countries represented.
Moreover, to the extent that contemporary judges
are more candid in acknowledging the influence of policy
and principle, as well as of legal authority, in deciding
cases, they invite legitimate criticisms of the policies
and principles to which they give effect.
The declaratory theory of the judicial function,
generally observed in common law countries in the past,
and often still maintained in the civil law tradition, sometimes
masks the creative choices which judges (especially of ultimate
courts) must face and resolve.
Whilst there would be no return to the declaratory
theory as previously practised, it remained for judges to
recognise and obey the limitations proper to judicial rather
than elected office. Criticism,
even vigorous criticism, of suggested excesses of judicial
"activism" or inventiveness was a useful assurance
against untrammelled abuse of judicial power.
All participants acknowledged the legitimate role
of criticism of judges, their decisions and conduct. However, several called attention to the new
phenomenon of personalised criticism as an aspect of media
entertainment, which judges were not well placed to answer.
20. Meetings and exchanges: Towards
the conclusion of the Seminar, there was a general consensus
that meetings, such as the Global Constitutionalism Seminar
itself, provided a useful reinforcement for the principle
of judicial independence. Bringing together judges from courts in developed
countries with judges from new courts in countries facing
special problems and difficulties, had the beneficial effect
of reinforcing their mutual dedication to the principle
of judicial independence. It also strengthened the personal and institutional
commitment of each participating judge to the principles
of competence, independence and impartiality that are essential
to an effective judicial branch of government.
Realising the common features of the contemporary
challenges to judicial independence, and sharing ideas about
the responses that could be adopted when such challenges
came, were useful contributions which themselves helped
to strengthen judicial independence and integrity.
THE ULTIMATE FOUNDATION OF COMMUNITY CONFIDENCE
At the end of the session, there was general
consensus with the reflection of one of the participants,
Justice Frank Iacobucci of the Supreme Court of Canada.
Each judge with the privilege of serving on an ultimate
appellate or constitutional court of his or her country,
indeed each judicial officer of whatever rank, had to accept
the real world of criticism and even political attacks,
in which the courts today operate.
The best advice that could be offered to such judges
was to take each day at a time, attempting with true humility
to perform the duties of office with fidelity and devotion
to duty.
When opinions are criticised, the proper
approach is not normally one of annoyance or demand for
redress or correction, still less punishment.
Sometimes it is a judicial commitment to attempt
to explain things better.
Sometimes it is re-examination to consider whether,
in the particular case, the criticism has merit. By the provision of better explanations of
what judges do and how they decide particular cases, members
of the communities served by such judges may ultimately
come to appreciate the complexity of the questions presented
for judicial decision, the difficulties of the choices that
must be made and the arguments that support the particular
decision arrived at.
Judges in the contemporary world must
rest their decisions on reason, not on force, fear or the
deployment of state power.
Thus, the ultimate foundation for judicial independence
lies not in the words of international instruments nor even
of domestic constitutions.
It lies in the manifest integrity of the judiciary
itself and the general acceptance of that integrity by the
communities whom the judges serve.
