Shimon Shetreet and Christopher Forsyth
The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges
Independence of the Judiciary: The European Perspective
"The way of Justice is a tightrope where no prince is safe for one instant"
(W.H. Auden, The Sea and the Mirror, II).
Some years ago already, we compiled under the leadership of Shimon Shetreet a document in which an attempt was made to draw up the "General Standards on the Independence of the Judiciary" . And again we continued under the same guidance our quest for an independent judiciary.
In this Report, I am seeking not only to demystify and put into its proper perspective the notion of independence, but also to point, on the other hand, to the many ways in which the courts' work is burdened with "bondages".
Also, quite apart from the important debate surrounding the independence of the courts, the status of the judiciary presents a number of other aspects, some of which will be clarified below.
A. INDEPENDENCE REVISITED
"Judges must be shielded from coer¬cion of any sort parti¬cularly from executive control over the performance of their judicial duties"
(Lord Chief Justice Lane)
In the first instance, it must be pointed out that the independence of the courts does not entail that the latter are not accountable to no one, because if that were the case, their independence would degenerate into irresponsibility.
Independence, in other words, is not an end in itself, but an "instrumental value" , a means of safeguarding a fundamental value, that of the impartiality of the judge, which for centuries has been symbolised by the blindfolded Lady of Justice. The essence of judicial activity resides in that it is exercised by an impartial and neutral third party.
In the explanation given below, I will attempt to draw up a typological classification for this kind of independence, adding a few comments. I would also refer to the abundant literature on the independence of the judiciary .
1. Independence towards the three constitutional authorities
The courts' independence towards the legislature and the executive are self evident propositions, although they are not invariably respected in practice.
Indeed, the courts' dependence of the legislature continues to express itself through laws which are retroactive in their effect, or, worse still, intervene in pending procee¬dings. Less directly, but no less nefariously, does it come to expression in the budget laws which, throughout the world with the exception of Costa Rica, provide inadequate financial scope for the efficient operation of the courts.
That Parliament is seeking, in a subtle manner, to retain its hold on the judiciary is something which emerges from trend shown by the former to act as a substitute for the courts and to arrogate to itself certain powers of enquiry. Here, the frustration experienced by the
Parliaments at no longer being able to control governments is being channelled into controlling the judiciary. The Van Traa Commission in the Netherlands and the Dutroux-commission in Belgium are examples of this.
The dependence of the courts of the executive remains an important consideration in those countries where the appointment of judges remains one of the prerogatives of the executive. However, there is a much more subtle danger in this context, which is that of management development by the Ministry of Justice. This has nothing to do with our plea for productivity analyses and managerial justice among the judiciary (on this subject, cf. infra).
The real threat is that of making the judiciary an official field service of the Ministry of Justice. It has been proposed that management functions be conferred on the decision making judges, on which regular reports would need to be submitted to the Minister; the latter could, if a negative verdict was returned on this management, request the Supreme Court to remove the judge in question from his managerial office.
However, there is also the question of the independence of the courts towards the judges as a body, both collectively and individually. Unfortunately, the threat of conformity and corporatism is as real as it ever has been.
Another threat is that of the collegiate attitude within a particular court. The story which concerned the American Supreme Court, and which was published in The Brethren stands, if true, as a frightening example of this attitude.
A man who had been condemned to death had appealed to the Supreme Court, arguing that his verdict had been reached in an improper manner. Judge Blackmun, who was considered to be a member of the conservative camp, had, on behalf of the majority, drawn up a decision stating the reasons why the complaints made were unfounded, or at least could not serve to reverse the verdict. Against this view, Judge Marshall had advanced a dissenting opinion which carried such conviction with some members of the majority that they changed their minds. However, this was still insufficient to obtain a majority for Marshall's viewpoint. In order to obtain that majority, it was necessary that one more judge should change camps. Hopes were pinned on the progressive Judge Brennan. The latter was approached for this purpose by one of his clerks. How-ever, Brennan refused to withdraw his vote from the Blackmun majority verdict. He was alleged to have given the following reason for his refusal: he considered it undesirable to go against Judge Blackmun who had recently shown signs of moving slightly in a progressive direction by turning against his opinion, which had been prepared with such care, at a time when a number of more important cases needed to be decided in which it was important to obtain Blackmun's support.
A number of comments should be made in relation to the first type of independence.
(a) The principle of the separation of powers was abandoned some considerable time ago. Therefore it is legitimate to require that the independence of the courts, which is essentially a form of autonomy, should not stand in the way of co operation between the three fundamental powers.
Here, we are talking of co operation with the legislature which enabled the Plenary Council of the Supreme Court in the former Soviet Union to have the right to initiate legislation, or which allowed the French Cour de Cassation to make proposals for the improvement of legislation in its annual report.
We are also talking about co operation with the executive which enables the courts to request information from the administration as is the case with the European Court of Justice .
(b) Within the judiciary, collective independence may not degenerate into the autonomy of individual judges, who object to co operation of any kind in the battle against the slowness and delays in the judicial process.
I am not suggesting that energetic judges should take over the case files of their more indolent colleagues. The latter should be the subject of much more expedient disciplinary action.
However, it is an established and objective fact that certain judges and courts have a heavier workload than others. The latter would then need to be mobilised in order to obtain a fairer distribution of work.
This will also enable the judiciary to make it clear that it is facing up to its responsibility to solve itself the problems of slowness and delays.
2. The judiciary and its members must adopt an independent attitude towards the world of politics. The latter does not make this very easy, since in many countries judges are still being appointed by those in political authority, and the size, appropriation and management of the justice budget is mostly removed from the involvement of the judiciary. All this constitutes a threat to the independence of the judges.
For many years now, I have been teaching my students that a judge must suffer from a Becket complex, referring to Thomas Becket who, following his appointment as Lord Chancellor by Henry II, informed the latter: "I was your friend, now I am your Lord Chancellor". When I told this story to the Chairman of the Supreme Court of Argentina, of whom it was said that he was a notorious friend of President Menem, he answered tersely: "I have remained President Menem's friend".
However, I have also taught my students that it is impossible to be a judge and at the same time man the barricades. The well known "phénomène Magnaud" is never far away.
3. The last named point brings me to to a very special and perhaps the most fundamental application of the independence principle, to wit, the impartiality of the judge, towards himself, towards the parties, and towards their lawyers.
He must be impartial towards himself, which means that the judge must leave behind his own philosophical, ideological, political and other beliefs when adjudicating a case. If he does not consider himself capable of doing so, he must withdraw from the case. This I could well imagine that a judge, whose child had been killed by a drunken driver, could not be in a position to settle a similar case with the necessary degree of detachment.
He must be impartial towards the parties, a requirement which is imposed by statute in virtually all the systems of court procedure throughout the world. If this does not suffice, reliance can be placed on the impartial judge principle laid down in Article 6 of the ECHR and Article 14 of the International Convention on Civil and Political Rights.
However, he must also be impartial towards the lawyers, especially if these lawyers play an important part in the social system, or if they belong to what Yves Dezalay has called the "marchands de droit qui cumulent la triple fonction de conseiller les auteurs de normes, de plaider les litiges qu'elles suscitent et de commenter les décisions qui les appliquent" ("those salesmen of the law who combine the three functions of consulting the authors of rules, of pleading in the disputes which these provoke, and of commen¬ting the decisions which apply them").
4. Finally, the judge must adopt an attitude of impartiality towards public opinion in general, which requires a kind of so called "insulation" particularly from the press and the rest of the media.
Even though the judge must listen to that which is happening in society he is not allowed to give a ruling on the basis of that which public opinion thinks or expects. On the occasion of a recent tragic car collision which happened in the mist of dawn, and in which several people died, one of the lorry drivers responsible was immediately arrested, which was clearly done under the pressure of public opinion, since it was hardly appropriate in the circumstances to claim the need for an inquiry. Recently, I heard an examining judge state that public opinion would not understand if he released X, who was at that moment in custody pending trial. Surely this is wrong.
As far as the communication media are concerned, I remain in favour of a rigid application of the sub judice principle: that which must still be decided judicially may not be made public, let alone commented on or criticised. In this respect, I would refer to that which Wolfram Henckel wrote some time ago: "Die Gerichtsberichterstattung der Medien sollte erkennen dass auch schon der Anschein bewusster oder unbewusster Einflussnahme auf laufende Gerichtsverfahren den Rechtsstaat gefährdet. Der Richter kann sich dagegen nicht wehren. Der Berichterstattung und Kommentierung wächst damit eine hohe Verantwortung zu, die mit dem Abschluss des Verfahrens nicht endet. Das Vertrauen der Bürger zu den Richtern und dem Rechtsstaat wird wesentlich beein-flusst durch die Darstellung und Kommentierung der Urteile in Zeitungen, Rundfunk und Fernsehen. Der im Grundgesetz verbrieften Freiheit und Unabhängigkeit der Presse muss in gleicher Weise wie der Unabhängigkeit der Richter die Verantwortung für die Erhaltung unseres demokratischen und sozialen Rechtstaat zur Seite stehen. Wer diese Freiheit nicht verantwortlich gebraucht, untergräbt die Verfassung und schwächt die Organe, die allein die Freiheit garantieren können" ("When reporting on court cases, the media should recognise that even the semblance of a conscious or subconsci¬ous influence on the case pending imperils the rule of law. The judge is unable to defend himself against this. Therefore, those responsible for reporting and commenting on cases have a considerable responsibility which does not end with the conclusion of the proceedings. The confidence placed by the citizen in the courts and in the rule of law is influenced to a considerable extent by the manner in which decisions are presented and commented on in the newspapers, as well as on radio and television. The constitutional values of the freedom and independence of the press must, to the same extent as this is the case with the independence of the courts, be buttressed by the responsibility for the safeguarding of our rule of law as it expresses itself in the democratic and social arenas. Anyone who fails to use this freedom in a responsible manner undermines the Constitution and weakens those organs which are the only ones capable of guaranteeing freedom" .
The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, pp. 58-62