Shimon Shetreet and Chrisopher Forsyth, Eds.
THE CULTURE OF JUDICIAL INDEPENDENCE
CONCEPTUAL FOUNDATIONS AND PRACTICAL CHALLENGES
Table of Contents:
Table of Contributors
Table of Cases
Table of Legislation
Preface - Prof. Shimon Shetreet and Prof. Christopher Forsyth
Part 1 - The Significance of the Independence of the Judiciary
Prof. Shimon Shetreet Greenblatt Professor of Public and International Law ,Hebrew University of Jerusalem.
Creating a Culture of Judicial Independence: The Practical Challenge and the Conceptual and Constitutional Infrastructure
Prof. Christopher Forsyth Director, Centre of Public Law, Faculty of Law, University of Cambridge
The Failure of Institutions: The South African Judicial Service Commission and the Hlophe Saga
Prof. Marcel Storme Professor Emeritus Ghent University, Former President of International Association of Procedural Law
Independence of the Judiciary: The European Perspective
Prof. Neil Andrews University of Cambridge, Clare College.
A Fresh Start: The Four Pillars of Civil Justice
Part 2 - The Judiciary and the Other branches of Government
Prof. Carlo Guarnieri and Prof. Daniela Piana University of Bologna
Judicial Independence and the Rule of Law: Exploring the European Experience
Late Prof. Stephan Goldstein Emeritus Professor, Hebrew University of Jerusalem
The Rule of Law vs. the Rule of Judges: a Brandesian Solution
Dato' Dr. Cyrus Das Former President of the Bar of Malaysia
The Threats to Judicial Independence: Experiences from the Commonwealth
Prof. Hiram E. Chodosh Dean, College of Law, University of Utah
Corruption and Judicial Independence
Prof. Wayne McCormack University of Utah
Judiciary, Military, and Harshness of Violence
Prof. Maimon Schwarzschild Faculty of Law, University of San Diego
Common Law, Private Law, and Judicial Independence
Part 3 - Judicial Independence in International Law and National Law
Prof. James Crawford Whewell Professor of International Law, University of Cambridge
Mr. Joe McIntyre University of Cambridge
The Independence and Impartiality of the 'International Judiciary'
Prof. David Feldman Faculty of Law, University of Cambridge
The Independence of International Judges in National Courts: Lessons from Bosnia Herzegovina
Prof. Dr. Walter Rechberger University of Vienna
The Impact of the ECHR Jurisprudence on the Austrian Practice in the Field of Judicial Independence
Adv. H.E. Markus Buechel Senior Advocate, Liechtenstein
The Independence of International Arbitrators
Prof. Yuval Shany Hersch Lauterpacht Chair in Public International Law, Faculty of Law, Hebrew University of Jerusalem
Judicial Independence as an Indicator of International Court Effectiveness: A goal-based approach
Prof. Michael Bohlander Durham University
Separation of Powers and the International Judiciary – A Vision of Institutional Judicial Independence in International Law
Part 4 – Judicial Conduct and Judicial Accountability
The Hon. Prof. Irwin Cotler, M.P. Former Minister of Justice, Canada
The Supreme Court of Canada Appointment Process: Chronology, Context and Reform
Prof. Dr. hab. Fryderyk Zoll Centre for the Study of Foreign Law, Jagiellonian University
Appointment of Judges in Polish Law – A Question of the Legitimacy and of the Judicial Power
Justice Eliezer Rivlin Deputy Chief Justice, Supreme Court of Israel
The Judiciary and the Media
Daniela Cavallini Lawyer and Researcher at the Centre for Judicial Studies, Faculty of Political Science, University of Bologna
Independence and Judicial Discipline: the Italian Code of Judicial Conduct.
Prof. Sir Louis Blom-Cooper, QC Formerly Prof., University of Cambridge, Bencher of the MiddleTemple
The Age of Judicial Responsibility: the Retirement and Resignation of Appellate Court Judges
Prof. Anton Cooray The School of Law, CityUniversity of Hong Kong
Standards of Judicial Behavior and the Impact of Codes of Conduct
Part 5 – Country Studies of Judicial Independence
Prof. Neil Andrews University of Cambridge, Clare College.
Judicial Independence: The British Experience
Prof. Chandra R. de Silva Dean, College of Arts and Letters at Old Dominion University, Norfolk VA.
A Recent Challenge to Judicial Independence in Sri Lanka: The Issue of the Constitutional Challenge
Prof. Hoong Phun ('HP') Lee Sir John Latham Chair of Law, Faculty of Law, Monash University
Challenges of Judicial Independence: An Australian Perspective
Prof. Avrom Sherr Director and Woolf Professor of Legal Education, Institute of Advanced Legal Studies, School of Advanced Study, University of London.
Shrinking Legal Aid, Unrepresented Litigants and Judicial Independence
Dr. Sophie Turrene Faculty of Law, University of Cambridge
The Northern Irish Judiciary in Times of Crisis: The Diplock Courts
Justice Tassaduq Hussain Jillani Judge of the Supreme Court of Pakistan
The Challenge of Judicial Independence and the Experience of Pakistan
Prof. Ada Pellegrini Grivoner University of São Paulo, Brazil
The Relevance for Brazil of International Standards of Judicial Independence
Prof. Chandra R. de Silva Dean, College of Arts and Letters at Old Dominion University, Norfolk VA.
The Role of Law in Society in Developing Countries
K. K. Venugopal Senior Advocate of the Supreme Court of India
The Supreme Court and Supremacy of the Judiciary in India
Part 6 - International Standards in the Making
Prof. Shimon Shetreet Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem.
The Mt. Scopus International Standards of Judicial Independence: The Innovative Concepts and the Formulation of a Consensus in a Legal Culture of Diversity
Part 7 – Text of the International Standards of Judicial Independence
Appendix I - Mount Scopus International Standards of Judicial Independence (2008)
Appendix II - Draft Standards of the Mt. Scopus standards of Judicial Independence
Appendix III - IBA Code of Minimum Standards of Judicial Independence (1982)
Appendix IV - UN Basic Principles on the Independence of the Judiciary (1985)
Appendix V - Commonwealth (Latimer House) Principles on the Three Branches of Government (2003)
Appendix VI - Tokyo Principles of the Independence of the Judiciary in the LAWASIA region (1982)
Appendix VII - Universal Declaration on the Independence of Justice (Montreal 1983)
List of Contributors
Neil Andrews Member of the teaching staff, Faculty of Law, University of Cambridge, since 1983; Fellow of Clare College, Cambridge; Bencher of Middle Temple, 2007; Member of the American Law Institute since 2000; Council Member of the International Association of Procedural Law
Sir Louis Blom-Cooper QC was called to the Bar by the Middle Temple in July 1952, and was made a Bencher of the Inn in 1978. He took silk in 1970, and was a Deputy High Court Judge from 1992 to 1996, as well as a Judge of Appeal in the Court of Appeal of Jersey and of Guernsey from 1989 to 1996. Publications include Final Appeal: A Study of the House of Lords in its Judicial Capacity (1972), co-authored with Gavin Drewry, The Court of Appeal (2007), with Gavin Drewry and Charles Blake.
Professor Michael Bohlander had been a member of the German judiciary since 1991 before joining Durham Law School in 2004. From 1999 until 2001 he served as the Senior Legal Officer of a Trial Chamber of the ICTY. He has trained judges and prosecutors from several countries, including the Iraqi High Tribunal which tried Saddam Hussein. He is the Visiting Chair in Criminal Law at the Rijksuniversiteit Groningen Centre for Law and Governance.
Markus Buechel was elected to the Liechtenstein Government as Minister of Finance in 1999 and subsequently as the country's Minister of Foreign Affairs in 1992. He was then voted Prime Minister of the Principality of Liechtenstein in a general election during 1993.
Daniela Cavallini is assistant professor at Bologna University (www.dsp.unibo.it) and lawyer. She participated in different comparative research projects on recruitment and career of judges and prosecutors and wrote several publications on judicial discipline.
Hiram E. Chodosh is the Dean and Professor of Law at the University of Utah S.J. Quinney College of Law. A former Fulbright Scholar in India, he has advised the UNDP, the World Bank, the IMF, the U.S. State Department, and many courts, ministries, and commissions in the Middle East and Asia.
Anton Cooray is Associate Dean of Law at City University of Hong Kong. He specializes in comparative public law and is the editor of Asia Pacific Law Review, the first Asia based law journal to be indexed in SSCI.
Irwin Cotler is a Canadian Member of Parliament and the former Minister of Justice and Attorney General of Canada. He is a Professor of Law (Emeritus) at McGill University.
James Crawford LLD, FBA, SC is Whewell Professor of International Law, University of Cambridge and a Fellow of Jesus College, Cambridge. He previously held chairs at Adelaide and Sydney. He is a Senior Council (NSW) and a member of the English bar, practicing from Matrix Chambers. He was the first Australian member of the United Nations International Law Commission and was responsible for the ILC’s work on the International Criminal Court (1994) and for the second reading of the ILC Articles on State Responsibility (2001). In addition to scholarly work on statehood, collective rights, investment law and international responsibility, he has appeared frequently before the International Court of Justice and other international tribunals, and is engaged as expert, counsel and arbitrator in international arbitration.
Cyrus Das LLB(Hons) Ph.D is a senior legal practitioner at the Malaysian Bar and an Adjunct Professor of Law. His specialties are administrative and constitutional law. He was a former President of the Malaysian Bar Council and presently Honorary Life President of the Commonwealth Lawyers Association.
Chandra R. de Silva is Professor of History and Special Assistant to the Provost at Old Dominion University. He has written extensively on contemporary education, ethnicity and politics in Sri Lanka.
David Feldman DCL, MA (Oxford) is the Rouse Ball Professor of English Law in the University of Cambridge, a Fellow of Downing College, Cambridge, and the President of the Society of Legal Scholars for 2010-11. From 2000 to 2004 he was the first Legal Adviser to the Parliamentary Joint Select Committee on Human Rights, and from 2002 to 2010 a Judge (and Vice-President 2006-09) of the Constitutional Court of Bosnia and Herzegovina. His writing is mainly in the fields of constitutional law, comparative public law, civil liberties and human rights, administrative law, criminal procedure, and remedies.
Christopher Forsyth is Professor of Public and Private International Law in the University of Cambridge and Extraordinary Professor of Law in the University of Stellenbosch. From 1997 to 2010 he was Director or Assistant Director of the Centre for Public Law. He is the author with the late Sir William Wade QC of Administrative Law (10th ed, OUP 2009) a standard work on the subject recognised as authoritative by courts throughout the common law world. He has written many books and articles in learned journals on all aspects of public law and private international law. His PhD thesis was published as "In Danger for their Talents: A study of the Appellate Division of the Supreme Court of South Africa from 1950" (Juta & Co,1985). He has advised several governments on thorny issues of administrative and constitutional law. He is a practicing barrister, a Bencher of the Inner Temple, and sits as a Recorder in the Crown Court in England.
Ada Pellegrini Grinover Full professor of procedural law at the University of São Paulo (Brasil). Doctor “Honoris causa” by the University of Milano (Italy), Vice-President of International Association of Procedural Law, Vice-President of Ibero-American Institute of Procedural Law, Honorary President of Brazilian Institute of Procedural Law, Author of 24 scientific books and many articles published in Brazil and abroad
Carlo Guarnieri is professor at the University of Bologna, where he teaches Comparative Judicial Systems. Together with P. Pederzoli he is the author of The Power of Judges. A Comparative Study of Courts and Democracy, (Oxford 2002).
Mr. Justice Tassaduq Hussain Jillani is a Judge of the Pakistani Supreme Court.. The Hague Conference has appointed him as the Co-chair of the Working Party on Mediation in Family International Law. The Working Party comprises of Judges and Academics from Europe, United States, Latin America, India and Asia.
Professor Hoong Phun ("HP") Lee holds the Sir John Latham Chair of Law at Monash University. Professor Lee’s publications include Constitutional Conflicts in Contemporary Malaysia (Oxford University Press, 1995) and The Australian Judiciary (Cambridge University Press, 2001) (co-author).
Wayne McCormack. (B.A. Stanford University, J.D. University of Texas) is Professor of Law at the University of Utah. He has written widely in constitutional law and international criminal law with emphasis on counter-terrorism.
Joe McIntyre is currently a PhD Candidate at the University of Cambridge, where he is examining the nature of the judicial function. He has previously worked as a Principal Research Officer for the South Australian Parliament, and as legal officer for the South Australian Solicitor-General’s and Crown Solicitor’s Offices. His practice has principally focused on Australian constitutional law, and involved numerous Supreme Court and High Court appearances.
Daniela Piana is assistant professor at the University of Bologna, where she teaches Politics and Institutions of the EU. She is the author of several articles on courts and politics. She has recently published Judicial Accountabilities in New Europe (London 2010).
Walter Rechberger was born in 1945, he is Full Professor (Ordinarius) of Law at the Vienna University School of Law and head of the Department of Civil Procedure (Institut für Zivilverfahrensrecht). He is member of the Council of the International Association of Procedural Law and holds the degree of an honorary doctor of the University of Pècs, Hungary.
Eliezer Rivlin is the Deputy Chief Justice of the Supreme Court of Israel; Director at the Israeli Institute of Extended Studies for Judges; Vice President of the International Organization of Judicial Training; Visiting professor at the University of Florida – School of Law (since 2006);
Author of books and articles in the fields of tort law and constitutional law.
Maimon Schwarzschild is Professor of Law at the University of San Diego, and Affiliated Professor at the University of Haifa. He has recently been Visiting Professor at the University of Paris (Sorbonne) and at the Hebrew University in Jerusalem. He is an English barrister and an American lawyer; he is an associate member of Landmark Chambers, London.
Avrom Sherr was appointed as the Woolf Professor of Legal Education at the Institute of Advanced Legal Studies in 1995. He has been Director of the Institute since October 2004. He currently Chairs the Advisory Board of The UK Centre for Legal Education and the Advisory Panel for the Office of the Independent Adjudicator for Higher EducationProfessor Sherr is the author of many reports, articles, chapters and papers on legal services, the legal profession, legal education, legal ethics and human rights as well as monographs including: "Client Care for Lawyers", "Advocacy" and "Freedom of Protest, Public Order and the Law".
Yuval Shany is the Hersch Lauterpacht chair in Public International Law at the Law Faculty of the Hebrew University of Jeursalem. Shany is a graduate of Hebrew University (LL.B.), New York University (LL.M.) and London University (Ph.D). He is one of the directors of the Project on International Courts and Tribunals.
Shimon Shetreet holds the Greenblatt chair of public and international law at the Hebrew University of Jerusalem, Israel and is past chairman of the Sacher Institute of Legislative Research and Comparative Law. He was a member of the Chief Justice Landau Commission on the Israeli Court System, 1980, and a Judge on the Standard Contract Court (1981-88). He is the author and editor of a number of books, including Judges on Trial (1976), Judicial Independence: The Contemporary Debate (1985), "The Role of Courts in Society" (1988), National Security and Free Speech (1991), Pioneers in Tears: Anthology on North African Jewry (1991), Justice in Israel (1994), Women in Law (1998), The Good Land between Power and Religion (1998), Law and Social Pluralism (2002) and On Adjudication (2004 ). His book Judges on Trial: A Study of the Appointment and the Accountability of the English Judiciary(1976) was relied upon by the House of Lords in the Pinochet Case in January 1999 and by the courts in many other countries. He served as General Coordinator, International Bar association Project for Minimum Standards of Judicial Independence 1980-1982 In recent years Prof Shetreet together with Prof Chris
Forsyth was the head of the international project on judicial independence which held five international conferences. Prof Shetreet has held high public offices. Between 1988 and 1996 he served as Member of the Knesset the Israeli Parliament. He was a cabinet minister in the Rabin Government.
Marcel Storme is the director of Institute Procedural and European Law. He has graduated Ghent University in 1952 and got Post Graduate degrees from University of Paris and London School of Economics. He has published many books, including Burden of Proof, General Principles of Law, and numerous articles.
Sophie Turenne, M.A. (Cantab.), Ph.D. (Paris II Panthéon-Assas), is Neil Allam/Clifford Chance Lecturer at the Faculty of Law, University of Cambridge. She is a Fellow of Murray Edwards College, Cambridge.
K. K. Venugopal Senior Advocate, Supreme Court of India
Dr hab. Fryderyk Zoll (*1970), Professor at the Jagiellonian University in Cracow. Mercator Professor at the University of Osnabrück (from 1.10.2010). Member of the International Academy of Comparative Law. Member of the Acquis Group on the Existing EC Contract Law. Director of the Centre for the Foreign Law Programs at the Jagiellonian University. Head of the Curriculum Team for the National School of Judiciary and Prosecutors in Poland.
This volume is divided into seven parts: Part 1, The Significance of the Independence of the Judiciary; Part 2, The Judiciary and the Other Branches of Government; Part 3, Judicial Independence in International Law and National Law; Part 4, Judicial Appointment, Judicial Conduct and Judicial Accountability; Part 5, Country Studies of Judicial Independence; Part 6, International Standards in the Making; and Part 7, Text of the International Standards of Judicial Independence
Part 1; The Significance of the Independence of the Judiciary
Part 1 focuses on the significance of the independence of the judiciary .This part contains an analysis of the main issues revolving judicial independence. It discusses the importance of judicial independence and how it projects upon the law system around it. The main issues discussed, are issues regarding judicial independence and the rule of law; judicial independence and judicial activism; the importance of judicial independence in creating an efficient and reliable Judiciary and issues regarding the securing of Judicial Independence. This part contains chapters by: Prof. Shimon Shetreet, Prof. Christopher Forsyth, Prof. Marcel Storme, and Prof. Neil Andrews.
This volume begins with chapter 2 by Shimon Shetreet, Creating a Culture of Judicial Independence: The Practical Challenge and the Conceptual Foundations and Constitutional Infrastructure. The chapter outlines the necessary elements of the culture of judicial independence and defines the concept of judicial independence and sets the stage for the book. Judicial independence is one of the fundamental values which lie at the foundations of most judicial systems. These values include: procedural fairness, efficiency, accessibility, public confidence in the courts, judicial independence, and the value of constitutionality, in the sense of the constitutional protection of the judiciary. Each of these values allows the courts to fulfill their main function, which is the resolution of disputes. It is a part of the governmental culture of the country, affected by the relationship between the branches of the government, and is one of the fundamental values of a proper administration of justice. It is not an individual concept, which can exist in any political climate; therefore, the state must create a culture of judicial independence and establish it on several levels, and in a long and gradual process. Domestic law is influenced by the international law and international standards in the process of creating the culture of judicial independence.
On the domestic law and the culture of judicial independence embodies in every part of the jurisdiction system. The institutional level regulates the matters relative to status of the judges and jurisdiction of the courts, the constitutional level anchors in the constitution the institutional aspects. The legislative level regulates in detail the constitutional principles, while the adjudicative level provides for interpretation and additional elements in all the levels. The Ethical traditions and Code of Conduct covers the judge’s official and non-official spheres of activities, and shields the judge's substantive independence from dependencies, associations, and even less intensive involvements which might cast doubts on judicial neutrality.
The culture of judicial independence can only exist in a system which is based on the principle of separation of powers. Even once achieved, the continuation of judicial independence is not a matter of course. It is constantly subject to challenges, sometimes by other branches of government, and at other times as the result of different developments.
Another aspect of judicial independence is the internal independence of the judiciary, the independence of a judge from his judicial superiors and colleagues. Another element of judicial independence is substantive independence, which refers to the neutrality of mind of the judge, to that judge's impartiality and total freedom from irrelevant pressures in judicial decision making.
While dealing with judicial independence, a common dillema is the principle of democratic accountability. Democratic accountability demands that a country selects the model of constitutional adjudication that complements its method of judicial appointments.
The controversy regarding the scope of judicial review has an impact on the public confidence in the justice system. The court cannot exercise its power in total detachment from the social and public discourse. In order to continue to faithfully execute its role in society, the court must demarcate in very finely tuned manner this demarcation lines between the Supreme Court and the other branches.
Chapter 3 by Prof. Christopher Forsyth the co-editor of this volume: The Failure of Institutions: The South African Judicial Service Commission and the Hlophe Saga, analyses incidents that raise doubts about the integrity of some parts of the South African judiciary. The Judicial Services Commission, which has an unenviable role as the authority which must find that a judge has been guilty of “gross misconduct” before that judge may be removed from office, has been failing in this task. This is of profound and disconcerting consequence for the South African judiciary as a whole and constitutional government in that country. This chapter does not offer any remedy for the state of affairs, but it does point to the possibility that the judiciary itself will, in its own interests and the interests of the polity as a whole, insist upon the JSC adopting proper standards and disciplining errant judges.
Some such unattractive incidents are, perhaps, inevitable in any judiciary and, particularly so, in a judiciary that has undergone the sort of “transformation” the South African judiciary has undergone since the political changes of the early 1990s. However, the almost wholly peaceful transformation of South Africa from an oppressive state in which the majority of the population was excluded from political power on racial grounds into a constitutional order with a constitution that is considered by some the most progressive in the world was an astonishing, almost miraculous, event in world history. Notwithstanding the current difficulties it is still much better than many expected or dared to believe possible. The Hlophe Affair is investigated in detail in this chapter and poses a real challenge to the Judiciary and the political leadership of South Africa.
Chapter 4 by Prof. Marcel Storme on the Independence of the Judiciary, seeks to demystify and place into its proper perspective the notion of independence, and also to point to the many ways in which the courts' work is burdened with "bondages".
Independence is not an end in itself, but a means of safeguarding a fundamental value, that of the impartiality of the judge. The essence of judicial activity resides in that it is exercised by an impartial and neutral third party. The courts' independence towards the legislature and the executive are self evident propositions, although they are not invariably respected in practice. Independence must be established with the impartiality of the judge towards public opinion in general, towards himself, towards the parties, and towards their lawyers and acquire a degree of insulation from the press and the rest of the media.
However, due to the burden of “bondages”, those elements against which the judge is incapable of adopting a position of independence, this independence can be problematic. The link with the prescribed rules, Laws Constitutions and Treaties, is difficult to break. Societal rules, the account of a case given by the parties, the issue of time pressure and judicial accountability all conspire to prevent the realization of judicial independence in its ideal form.
Chapter 5 is the last chapter in the first part. Chapter 5, by Neil Andrews, A Fresh Start: The Four Pillars of Civil Justice, examines the essential pillars of Civil Justice. According to Andrews they are: access to legal advice and dispute-resolution systems, equality and fairness between the parties, a focused and speedy process, and adjudicators of integrity. The theoretical background and precedents for these concepts are illustrated in comparative perspective. Andrews lists the elements of ensuring fairness and effectiveness of the judicial process which lie at the foundation of the justice system.
Part2: The Judiciary and the Other Branches of Government
Part 2 discusses the relationship between an independent judiciary and the executive branch; accountability of judges and the judiciary; the Executive role in the administration of justice. This part will also examine the relationship between an independent judiciary and the legislature; the role of the legislature in creating independent judiciary; securing judicial independence by legislation as compared with a tradition of judicial independence.
This part contains chapters by: Prof. Carlo Guarnieri and Prof. Daniela Piana, the late Prof. Stephen Goldstein, Dato' Dr. Cyrus Das, Prof. Hiram Chodosh, Prof. Wayne McCormack, and Prof. Maimon Schwarzschild.
Chapter 6 by Prof. Carlo Guarnieri and Prof. Daniela Piana, on Judicial Independence and the Rule of law: The European Experience, offers the comparative empirical analyses of the European Experience with Judicial Independence and the Rule of Law. To be considered legitimate by the parties to the case the judge is expected to adjudicate impartially, according to the rules of the legal system without expectation of benefits or fear of reprisals in order to perform his or her functions effectively. Therefore, judicial independence is a relationship and its main points of reference are the parties: in order to be impartial, the judge must be independent from them. A judge who depends on one of the parties cannot be – and appear to be – impartial. judicial independence implies a clear political dimension if and when a judge comes to adjudicate a case in which politics is involved: e.g. when the government – or someone politically powerful - is a party. From this point of view the internal dimension of judicial independence can become significant only if it impinges on external independence: for instance, in the case of politically influenced higher ranking judges harassing lower ranks if they decide against powerful political actors.
In Chapter 7 by the Late Prof. Stephen Goldstein, The Rule of Law vs. the Rule of Judges: a Brandiesian Solution, Prof. Goldstein analyzed the contributions of Justice Louis D. Brandeis to the debate over the role of judicial activism. In particular, the questions about Brandeis’ judicial heritage’s place on the ideological spectrum, and where specifically he fits in the context of Israeli judicial personalities. The author concludes that his heritage is largely conservative from the American perspective and his judicial philosophy is based on self-control and restraint as contrasted with judicial activism. This was due to his strongly entrenched belief about the function of the judiciary in a democratic society, on his modesty about the wisdom of judges and on his opposition to the concentration of power, including in the judges. For Brandeis the most important thing judges do is "not to do."
Chapter 8, by Dato' Dr. Cyrus Das, The Threats to Judicial Independence: Experiences from the Commonwealth, the author examines the experiences of the British Commonwealth nations with threats to Judicial Independence and that concepts’ dialectic with constitutionalism. The instances of the threats to judicial independence, in the political evolvement of the new democracies, provide the best illustration of the ever present tension in these countries between constitutionalism and judicial independence. Several key topics are examined with respect to this topic which range from the direct interference with judges due to harassment or removal, circulars and directives to judges, the politics of judicial promotions, and inappropriate consultations, propositions or suggestions to judges. While this is not meant to be an exhaustive list of the ways in which judicial independence can be imperiled, these are all relevant and serve as prerequisites to the proper functioning of the rule of law and are illustrated as such in the case studies presented.
Chapter 9, by Prof. Hiram Chodosh, is on Corruption and Judicial Independence. Dean Chodosh analyses the topic of corruption or economic interference and its relation to Judicial Independence. This is distinct from political interference that is the focus of the majority of the literature and reforms on the topic of judicial independence. This analysis suffers from the problems with defining what constitutes economic corruption and how to enact laws that will preserve judicial independence from its effects. Corruption can have a multitude of tangible negative effects on judicial independence, but perhaps most serious is the role it can play in undermining the trust of the public in ostensibly democratic institutions. Combating corruption is particularly challenging as it can simultaneously work to undermine the institutions meant to combat its effects in the first place. Corruption must be defined to be understood and there are a variety of viewpoints on this topic, including political, economic, and cultural and ethical. Once it is understood, then sound policy can be constructed to combat its effects and preserve judicial independence.
Chapter 10, by Prof. Wayne McCormack, Judiciary, Military, and Harshness of Violence, examines the dialectic between the role of violence and the rule of law. That is to say that no justice system can operate effectively in the midst of chaos but chaos cannot be forestalled effectively without a functioning justice system. In particular it examines the growth and maintenance of the rule of law in a military or criminally chaotic context. If people do not feel safe and protected, there is little the judiciary can do to build a functioning society. The international community must press aggressively for local protection of judges, as judges are greatly at risk and their safety is a critical component in realization of the Rule of Law, which is in turn a critical component is achieving a healthy and productive society.
The last chapter of part 2, Chapter 11, by Prof. Maimon Schwarzschild, analyses the concept of judicial independence with a more critical analysis. Judicial Independence is widely, and rightly, said to be a cornerstone of liberal government, of good government, and of the rule of law. However, judicial independence is not unequivocally a good thing. Good ideas are often bent or distorted on behalf of dubious interests. Judicial independence is surely good and even crucial the morality of law, but judicial independence in another sense might actually imply judicial over-reaching and abuse of authority: an indefensible sort of independence. That sort of independence is liable in the long run to undermine or to destroy judicial independence in the good sense. This is true in theory and in practice as is seen in developed countries attitudes towards a dubious sort of judicial independence. Further, international legal institutions, and enthusiasm for international norms, may be especially susceptible to fostering the bad sort of judicial independence. If judges around the world overstep their authority, and if the judiciary is seen to be a partisan force in the political and cultural disputes of the era, then democratic public opinion is liable to ensure that there will be less judicial independence, not more.
Part 3; Judicial Independence in International Law and National Law
Judicial independence has a central place not only in national law, but also in international law. The norms and standards of judicial independence in each one sphere affects the norms and standards of the other. It discusses the impact of these spheres have one upon the other. This part analyses the development of judicial independence in international law, and the role of judicial independence in the resolution of international disputes. This part of the book contains chapters by: Professor James Crawford and Joe McIntyre; Professor David Feldman; Professor Walter Rechberger; H.E Adv. Markus Buechel; Professor Yuval Shany; and Prof. Michael Bohlander.
The first chapter of part 3 by Prof. James Crawford and Joe McIntyre, The Independence and Impartiality of the ‘International Judiciary, focuses on the standards of judicial independence as applied to the international judiciary. International law now has its own institutions, increasingly interacting with the domestic laws of States. Their emergence calls for an examination of the standards and principles that govern and constrain their operation. In particular, the question arises as to the extent to which, standards international law set for other legal systems apply to its own institutions. This chapter will focus on one emblematic example of this issue, namely the applicability and content of the principles of judicial independence and impartiality to the ‘international judiciary’.
Chapter 13, by Professor David Feldman, is on The Role of International Judges in National Constitutional Court: The Case of Bosnia Herzegovina. This chapter analyses the lessons for judicial independence from the experiences of international judges in Bosnia and Herzegovina in the tribunals that followed the conflict. International judges in this context are subject to novel pressures. These derive from their sources of authority in international law, and the particular context of a fractured society, as in this case, recovering from war and genocide. This case showed the utility for judicial independence of introducing the international judges who were able to overcome national concerns, mediate national interests, and protect the integrity of the court. If a legal system is to negotiate a course between the many threats, then all parties concerned have to be aware of a very important point. Judges, other national authorities and international agencies all need to be clear about the institutions, groups or individuals from which and purposes for which judges need to be independent, and conscious of how their activities, undertaken with the best of intentions, can impinge on each other’s independence. This is illustrated by the experiences in Bosnia and Herzegovina.
Chapter 14, by Professor Walter Rechberger is on The Impact of the ECHR Jurisprudence on the Austrian Practice in the Field of Judicial Independence. The chapter examines the relationship between Austria and the European Court of Human Rights and Fundamental Freedoms (ECHR) and the implications of this relationship for that country’s judicial independence. Austria was the first state to incorporate the ECHR fully into its constitutional legal order. This means that the rights laid down in the convention have the same relevance as the original catalogue of fundamental rights in the Austrian Federal Constitution and the Basic Law of the State on the General Rights of Citizens. Therefore legislation has to observe and give effect to the rights and freedoms of the ECHR and additionally all courts and administrative authorities are obliged to apply the ECHR in all proceedings before them, which means that they have to interpret the law in a manner which does not infringe the rights laid down in the ECHR.
Chapter 15, by H.E Adv. Markus Buechel on Independence and impartiality of International Arbitrators, deals with the topic of International Arbitrators and their independence. There is a general principle that an arbitrator must act and must be seen to act fairly between the parties, and the arbitrator must be and remain impartial and independent. The independence of an arbitrator is an essential feature of judicial independence, despite the fact that most arbitrators are intimately involved in their field of arbitration and the outcomes they produce. Long-standing norms that no one should be a judge in his own cause and that justice should be seen to be done apply equally to international arbitration in order to temper this fact.
Chapter 16 by Professor Yuval Shany, Judicial Independence as an Indicator of International Court Effectiveness: A Goal-Based Approach, offers a significant contribution to the debate on the relationship between judicial independence by applying to it a model for international judicial effectiveness developed elsewhere. He disputes some scholars who argue that there is no evidence that independent international courts are more effective that dependent ones. Professor Shany argues that the proper questions that should be discussed are not whether judicial independence is conducive to international court effectiveness, but rather more nuanced ones such as which international courts are better served by judicial independence, what level of judicial independence should courts strive toward, and what image of independence should they seek to project.
The last chapter in Part 3, Chapter 17, is a chapter by Prof. Michael Bohlander, Separation of Powers and the International Judiciary – A Vision of Institutional Judicial Independence in International Law. The chapter analyses the separation of powers and the international judiciary and lays out a vision of judicial independence’s place in international law. This is in contrast to the primary focus on domestic judicial independence and is of growing importance due to the increasing numbers of international criminal tribunals. Not all the courts have proper judicial discipline regimes or even a code of conduct and this imperils their independent credentials. Many of the checks and balances upon the judiciary that ensure its independence in domestic matters are lacking or absent at the international level. It is demonstrated that mechanisms to ensure international courts’ independence must be enacted and implemented in order to have a healthy and functioning system.
Part 4; Judicial Appointments, Judicial Conduct and Judicial Accountability
Part 4 examines a number of central issues. Judicial appointments have a central effect on the creating or limiting of the independence of the judiciary. This Part discusses the place of the executive and the legislature in the appointment of judges; tenure of judges, and its effect on judicial independence. This part also deals with grounds and procedures of Judicial removal and discipline, which are significant in creating or limiting the independence of the judiciary. The chapters in this part discuss models of removal and discipline for dealing with misconduct of judges. Other issues analyzed in this part include: the creation of formal and informal standards of conduct for the judiciary, and the impact of these standards have upon the creation of a culture of judicial independence. This part contains chapters by: – The Hon. Prof. Irwin Cotler, M.P, Prof. Dr. hab. Fryderyk Zoll, Prof. Keith Uff , Daniela Cavallini, Prof. Sir Louis Blom-Cooper,QC, and Prof. Anton Cooray.
Chapter 18, by Prof. Irwin Cotler, The Supreme Court of Canada Appointment Process: Chronology, Context and Reform, offers a very meaningful report by the former Minister of Justice of Canada on the process of selection of judges of the supreme court of Canada. The chapter takes the case of Canada’s Supreme Court appointment process and looks at the process of its reform. As the Supreme Court is the pinnacle of the court system, the process of appointing its judges is one of critical importance. The shift in Canada from a Parliamentary to a constitutional democracy necessitated some reforms to the existing system in order for the Court to fill a new, role. This chapter examines in detail the process by which justices are appointed to the court under the present system.
Chapter 19, by Prof. Dr. hab. Fryderyk Zoll, Appointment of Judges in Polish Law – The Question of Legitimacy and Independence, examines the system of judicial appointments in Poland. It analyzes the measures taken in support of judicial independence and those features particular to Poland which undermine it, during the appointment process and after the appointment has taken place. The increase of the judicial power in the process of implementing the law would require more democratic legitimacy, but it needs to be counter – balanced by the need to keep the system immune from the direct influence of politics. The chapter illustrates the struggles between independence, legitimacy, and accountability.
In Chapter 20, Deputy Chief Justice of Israel Justice Eliezer Rivlin analyzes the relationship between the Judiciary and the Media. The increasing intensive media coverage of court cases, judicial decisions and legal proceedings presents a challenge to judges and requires careful attention. Justice Rivlin also offers a detailed record of the rules approved by the Israeli judiciary on the procedure and the manner for responses by courts and individual judges to media reports and inquiries. The Israeli practice served as a basis for section six of the Mt. Scopus Standards on Judicial Independence dealing with the media and the Judiciary.
Chapter 21, by Dr. Daniela Cavallini, Independence and Judicial Discipline: the Italian Code of Judicial Conduct, examines the Italian Code of Judicial Conduct and how judicial discipline administered under the code affects Italy’s Judicial Independence. Disciplinary rules in general can contribute to guaranteeing judicial independence. It helps to avoid disciplining judges for vague, discretionary reasons and without judges knowing ex ante what is considered a violation and the penalties they can incur. This will avoid cases where punishment is disproportionately administered. The chapter examines Italy’s reform experience and concludes that judicial independence can be best guaranteed through firm and all-encompassing rules, precise sanctions and compulsory disciplinary action. However there is still a place for discretionary powers which cannot be completely excluded from judicial discipline.
Chapter 22 is a chapter by Prof. Sir Louis Blom-Cooper,QC, The Age of Judicial Responsibility: the Retirement and Resignation of Appellate Court Judges. It examines the topic of the retirement and resignation of appellate court judges and how this impacts judicial independence. For appellate judges appointment for life, with regular medical check-ups and the functioning of personal resignation, is to be preferred over enforced retirement at a designated age. Impartiality, or perceived impartiality, is enhanced by the existence of the highest quality of judicial output. An effective system of appellate justice calls for a blend of wisdom, experience, diversity and demonstrable merit. The evidence of high quality judicial service at an advanced age is strikingly in favour of appointment for life. Inflexible and arbitrary age limits for appellate court judges exclude capable and competent individuals from contributing to their full potential.
The last chapter in part 4 is Chapter 23, by Prof. Anton Cooray, Standards of Judicial Behaviour and the Impact of Codes of Conduct. This chapter examines the effect that Codes of Conduct have had on standards of judicial behaviour. Courts must enjoy a privileged position with special protections and immunities, so that they can disburse justice evenly between the citizenry and the government. In order to maintain its independence, the judiciary must be above criticism. Suspicion of partiality, incompetence or abuse of power invites attempts to reign in judicial independence. It is only when the judiciary is, in fact and in appearance, independent and immune from political control that it will be able to gain public confidence and trust. To this end, constitutional principles and conventional practices have evolved to ensure that a special sphere is demarcated for the judiciary. It is the judges’ responsibility to demonstrate that they are fair and competent, in both action and the perception of their actions. Judicial codes have an important place in providing standards for judges to adhere to fulfill this role.
Part 5; Country Studies of Judicial Independence
Part 5 analyzes a number of central aspects of judicial independence in a number of jurisdictions including, UK, Australia, Pakistan, Brazil, Italy, Sri Lanka. Part 5 contains chapters by Prof. Neil Andrews, Prof. Chandra de Silva, Prof. Hoong Phun ('HP') Lee, Prof. Avrom Sherr, Dr. Sophie Turrene, Justice Tassaduq Hussain Jillani, Prof. Ada Pellegrini Grivoner and Prof. K. K. Venugopal.
Chapter 24, by Prof. Neil Andrews, Judicial Independence: The British Experience lays out the British experience with judicial independence and how the British judiciary came to be separate from Parliament, the Executive, other powerful people, party politics, governmental exigency, corporate greed and private interest. This independence has been guaranteed by statute and tradition and is supported by the government and the public. Provided his proposed conduct is consistent with the law and sound judicial practice, a judge in Britain is entitled and bound to act according to his perception of what is just. The support given to the judicial enterprise by these organisations is crucial to the maintenance of judicial independence.
Chapter 25, by Prof. Chandra de Silva, is on A Recent Challenge to Judicial Independence in Sri Lanka: The Issue of the Constitutional Challenge examines the experience of Sri Lanka and the challenges that judicial independence has endured there. The British colonial legacy left Sri Lanka with a strong judiciary in the British tradition. However, with the extension of state activity well beyond the maintenance of law and order and the subordination of the bureaucracy to political control there arose among some politicians a tendency towards a desire to curb the independence and power of the judiciary. The exercise of judicial review over legislation in Sri Lanka came under assault and was justified on the basis of popular sovereignty. There was ostensible recognition that such interference with judicial independence was harmful and measures were introduced in an attempt to foster independence in Sri Lanka. However, it is clear that the intention was not to end the politicization of appointments but to ensure that influence in making such appointments should be shared among political groups rather than remain the exclusive privilege of the governing group. To ensure judicial independence, it is important to specifically require the executive to refrain from any act of omission or commission that directly or indirectly interferes with or frustrates the personal, substantive or collective independence of the judiciary, and as yet this has not been achieved in Sri Lanka.
Chapter 26, by Prof. Hoong Phun ('HP') Lee, Challenges of Judicial Independence: The Australian Perspective analyses the Australian experience with judicial independence. While largely federal in nature, the Australian state and federal judicial systems remains relatively integrated. The populous feels that such independence is not under any real threat and its legitimacy is fully accepted. Australian courts are seen as highly independent and impartial bodies. The judiciary can ultimately resort to doctrinal weapons to thwart any attempts by the executive to undermine or erode their standing as independent entities. Australian courts render themselves accountable through the operation of the ‘open court’ principle, the obligation to give reasons for decisions, the application of the apprehension of bias rule and the exercise of oversight by the superior courts over the inferior courts. In Australia, judicial independence is a fundamental value which is viewed by the general populace as a vital aspect of a democratic polity.
Chapter 27, by Prof. Avrom Sherr, Shrinking Legal Aid, Unrepresented Litigants and Judicial Independence examines how the role of the judiciary changes when the judge enters the arena in order to balance the position between conflicting parties. It investigates how judicial independence may suffer when one litigant is unrepresented. As a result of reductions in public funding the number of unrepresented litigants is likely to increase further. The chapter considers in some detail how the role and independence of the judge may be affected in such circumstances of inequality of arms. Knowing and acknowledging the effects on judicial independence are an important first step in maintaining judicial approach and status. Developing better means to handle the difficulties as the numbers of unrepresented litigants grows, is the next stage in development.
Chapter 28, by Dr. Sophie Turrene, The Northern Irish Judiciary in Times of Crisis: The Diplock Courts, analyses the example of the Diplock Courts in Northern Ireland from the time of the troubles. Northern Irish terrorists were prosecuted as ordinary criminals and tried in criminal courts rather than military tribunals. This led to a two-tiered criminal justice system of trial by jury or single judge adjudicated trials, the latter being known as Diplock Courts which were responsible for seeing the vast majority of terrorism cases. While such arrangements are often used by authoritarian regimes for undemocratic ends, the aim in creating these courts in this example was to ensure some degree of judicial independence in order to guarantee compliance with the minimum requirements of the rights to a fair trial. The judges were able to uphold a certain set of common law principles during the emergency period and did not abdicate their independence. They had a limited ability to safeguards individual rights but did on occasion go against the will of the political regime. When there are grounds to suppose that juries could not be effectively protected from intimidation, as was the case in Northern Ireland in terrorist trials, then courts in the Diplock model can be a workable response to civil disorder and terrorism.
Chapter 29, by Justice Tassaduq Hussain Jillani, The challenge of Judicial Independence and the Experience of Pakistan, examines the experience of Pakistan with judicial independence, from its emergence from colonialism through political instability and martial law to the present day. It is shown that Pakistan struggled through many societal, governmental and political obstacles and have begun to realize the promise of judicial independence. The analysis is done with special attention to historical perspectives.
Chapter 30, by Prof. Ada Pellegrini Grivoner, The Relevance for Brazil of International Standards of Judicial Independence analyses the topic of judicial independence from the perspective of Brazil. Brazil has a blended system of common law and civil law. It examines the powers of Brazilian judges and shows that there is a perception of the judiciary as the protector of individual freedoms, and that impartiality and independence are necessary to guarantee this freedom. The Brazilian Constitution assures the Judiciary of the prerogative of self-governing by applying normative and administrative action of self-organization and self-regulation and provides them tenure. The Brazilian Constitution is in line with international standards of judicial independence.
Chapter 31, by Chandra R. de Silva, The Role of Law in Developing Countries, examines the role of law in developing countries. In developing countries there is a greater distance between legal systems and society than exist in developed countries, however, there is a greater burden on the systems in developing countries. This is critical because legal systems play an important formative role in developing countries in a way that is not as critical in developed countries. In developed countries there are many arenas for dispute settlement, but in developing counties there are many political and personal reasons for bringing cases to court. People in developing countries use these institutions as a means of bringing issues to public attention. Law fashions society and regulates conduct through penalties for violations. It influences conduct by demarcating what is socially acceptable and this is particularly important for developing countries.
Chapter 32, by Prof. K. K. Venugopal, The Supreme Court of India and Judicial Supremacy analyzes the Indian Supreme Court and judiciary. In India, it has not been uncommon for a completely independent judiciary to be looked at with suspicion by the executive, the fear being that the courts may set themselves up above the law or as a third house of parliament. Judicial restraint and statesmanship are necessary to prevent breaching the principles of separation of powers by the judiciary. However, it is difficult for the Indian Judiciary to remain silent when the promises of social justice made by the Constitution are nor fully implemented. Thus there is tension between the promise of what the judiciary could accomplish and how they are constrained by the political realities of Indian society and government.
Part 6; International Standards in the Making
Part 6 focuses on the International Standards of judicial independence. Part 6 contains chapter 33: The Mt. Scopus international standards of judicial independence: the innovative concept and the formulation of a consensus in a legal culture of diversity, by the under-signed Shimon Shetreet. This chapter offers a detailed analysis of the Mt. Scopus International Standards of Judicial Independence with a focus on the central issues. These issues include: institutional independence of the judiciary, internal judicial independence of the judge vis-a-vis superiors and colleagues, the requirement of pre-determined plan for case assignments. Other issues also included in the analyses in this chapter are: The principle of fair reflection of society by the judiciary, and the definition of the main function of courts in society, the resolution of disputes.
Part 7; Text of the Standards of Judicial Independence
Part 7, contains the text of the International Standards of Judicial Independence. This part includes 7 international standards as follows: Mount Scopus International Standards of Judicial Independence (2008), Draft of the Mt. Scopus International Standards (2007), IBA Standards of Judicial Independence (1982), UN Basic Principles on the Independence of the Judiciary (1985), Tokyo Principles of the Independence of the Judiciary in the LAWASIA region (1982), Latimer House Guidelines for the Commonwealth, Universal Declaration on the Independence of Justice (Montreal 1983).