Shimon Shetreet and Christopher Forsyth
The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges
Chapter 2
Shimon Shetreet
INTRODUCTION
This chapter analyses the conceptual foundations of judicial independence, and the necessary elements for maintaining a culture of judicial independence. Judicial independence is a significant component of governmental culture in every country. It is shaped by the relations between the branches of government, and is one of the basic values which lie at the foundation of the administration of justice. Judicial independence must be supported by the political climate and social consensus. The political leadership and the professional and legal elite must work together to develop a culture of judicial independence along several very significant guidelines and levels. They must do this in a long and gradual process. This chapter offers a detailed analysis of the foundations and a comprehensive examination of the levels of the culture of judicial independence, and the central issues which the legal and professional elite and the political leadership should consider in the process of building a culture of judicial independence.
The culture of judicial independence is created by five important and essential aspects: creating institutional structures, establishing constitutional infrastructure, introducing legislative provisions and constitutional safeguards, creating adjudicative arrangements and jurisprudence, and maintaining ethical traditions and a code of judicial conduct. The institutional structures regulate the matters relative to the status of the judges and the jurisdiction of the courts. The constitutional infrastructure embodies in the constitution the main provisions of the protection of the judiciary. The legislative provisions offer detailed regulations of the basic constitutional principles. The courts add to the constitutional infrastructure and the legislative provisions complimentary interpretations and jurisprudence on different aspects of the conduct of judges and the operation of courts. The ethical traditions and code of judicial conduct cover the judge’s official and non-official spheres of activities, and shield the judge's substantive independence from dependencies, associations, and even less intensive involvements which might cast doubts on judicial neutrality.
International law plays a significant role in creating the culture of judicial independence in domestic law. In this chapter the case of England is presented in order to illustrate the impact of international law on national law as well as to illustrate the earlier impact of the English law and constitutional principles of judicial independence on the U.S. Constitution and other legal cultures in developing judicial independence.
I have elsewhere classified this process as the normative cycle of international and national law in the area of judicial independence.
International law influences domestic law by virtue of international human rights treaties which provide for principles of fair procedures and for the right to be tried before an impartial and independent tribunal. In addition to international treaties, there are international standards which non-governmental and academic study groups have developed. One such recent project is the Mt. Scopus International Standards of Judicial Independence (“Mt. Scopus Standards”).
The principle of judicial independence is one of the fundamental values of the administration of justice. These values include procedural fairness, efficiency, accessibility and public confidence in the courts. In addition, there is a requirement that the fundamental values, including judicial independence should be protected by constitutional provisions, not only by legislative provisions.
This chapter will examine the conceptual foundations of the principle of judicial independence, and will analyse the necessary essential elements of a culture of judicial independence. In addition to the concept of judicial independence, this chapter will analyse the principle of democratic accountability and the proper relations between the Judiciary, the Executive and the Legislature.
The culture of judicial independence can only exist in a system which is based on the doctrine of separation of powers. After it is established, the contituation 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 a result of different types of internal circumstances.
In the course of the analysis of the relations between the Judiciary and other branches of government, a number of topics will be examined in this chapter, including retroactive reversal of judicial decisions by legislation, or the introduction of delegated legislation by the Exucitve in matters pending before the court. Attention will be also paid to the analysis of the preferred model of the proper relationship between the judiciary and the other branches of the government.
This chapter will also analyse the issue of the role of courts in society, and the proper boundaries of judicial functions. The chapter offers a classification of judicial activism which includes: constitutional activism, that relates to judicial activism in judicial review of parliamentary legislation and the promotion of human rights and civil rights. Judicial activism is exercised in other areas of law, including activism in administrative law, private law and criminal law.
The analysis in this chapter demonstrates the need to develop principles for fine tuning of judicial role in society. This process of fine tuning should demarcate the proper boundaries between the judiciary and the other branches of government. Important tools for this process are the doctrine of justiciabitly and the right of standing. A complimentary test for fine tuning of the judicial function is the test of substantial disruption of the proper boundaries between judicial functions and functions of the other branches of the government. The judiciary must not interfere in a matter when such judicial intervention will bring about such a substantial disruption of relations between the branches of government.
The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, p. 46-47
Chapter 3
The Failure of Institutions: The South African Judicial Service Commission and the Hlophe Saga
Christopher Forsyth
This paper tells the tale of certain incidents that raise doubts about the integrity of some parts of the South African judiciary. 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.
But the test of a constitution is the way in which it deals with such incidents. And here the argument of this paper is that 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 paper will not offer any remedy for the state of affairs. That is a matter and a test for the constitutional actors in South Africa. 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. In other words that the cavalry may come to the rescue!
Before turning to the detail of this tale it will be well to maintain a sense of perspective. 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 all so much better than many, myself included, expected or dared to believe possible.
The process of transformation was inevitably complicated and difficult. As Professor Hugh Corder has remarked:
[Transformation] is a process which necessitates substantial upheavals of established practices and expectations, in which there is a risk of the loss of what might have been conducive of good governance, in pursuit of systemic renewal and a greater degree of equity and justice. So this is a tale of both good and bad, of confusion and poor management in the face of uncharted territory, and of the constant tensions lingering from the wickedness of the past.
The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, p. 46-47
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