The Culture of Judicial Independence
Rule of Law and World Peace
Edited by
Shimon Shetreet
LEIDEN | BOSTON
The Culture of judicial independence : rule of law and world peace / Edited by Shimon Shetreet. p. cm. Includes bibliographical references and index. ISBN 978-90-04-25780-1 (hardback : alk. paper) -- ISBN 978-90-04-25781-8 (e-book : alk. paper) 1. Judicial independence. 2. Rule of law. 3. Peace. I. Shetreet, Shimon, author editor of compilation.
K3367.C86 2014 340’.11--dc23
2014012724
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Table of Cases ix List of Legislation xxiii Preface xxxiii Acknowledgements xxxviii List of Contributors xl
Part I General
Chapter One General Introduction 3 Chapter Two Judicial Independence, Liberty, Democracy and International Economy 14 Shimon Shetreet Chapter Three Accountability of Judicial Service Commissions to the Law: The Case of South Africa 48 Christopher Forsyth Chapter Four Reflections on Judicial Independence: Past Achievements and Future Agenda 65 Marcel Storme
Part II Judicial Independence, Human Rights, Democracy, the Rule of Law and World Peace
Chapter Five Judging the Independence and Integrity of Foreign Courts 73 Neil Andrews Chapter Six The Protection of Religious Liberty in the United States: The Supreme Court Jurisprudence 89 Maimon Schwarzschild Chapter Seven The Culture of Peace and Human Rights: The Development of Human Rights Protection in the European Union 99 Shimon Shetreet Chapter Eight Globalization of Human Rights and Mutual Influence between Courts: The Innovative Reverse Path of the Right to the Truth 107 Arianna Vedaschi
Part III Constitutional Position of Top Courts
Chapter Nine The Independence of the Judiciary in Belgium 137 Marc Bossuyt Chapter Ten On Fairness 144 Sir Louis Blom-Cooper QC Chapter Eleven The Conceptual Definition of the Constitutional Court in Italy 154 Giuseppe Franco Ferrari
Part IV Relations Between the Judiciary and the Other Branches of Government
Chapter Twelve The Scope of Judicial Review and the Rule of Law: Between Judicial Restraint and Judicial Activism 181 Sir Louis Blom-Cooper QC Chapter Thirteen Entering the Political Thicket: The Role of the Judiciary as an Arbiter in Relation to Making and Implementation of Public Policy 200 Anton Cooray Chapter Fourteen On Judges Writing Commentaries: Is It Appropriate for a Judge to Engage in Outside Activities? 217 Fryderyk Zoll Chapter Fifteen Procedural Guarantees of Independence and Impartiality of Judges in Russia 223 Sergey Nikitin Chapter Sixteen The Relationship of the Judiciary and Legislature in Australia 232 HP Lee
Part V Impartiality of the Judicial Process
Chapter Seventeen Relations between the Court and the Parties in the Managerial Age 253 Neil Andrews
Chapter Eighteen Independence of Court Proceedings: Impartiality and Fairness 272 Dmitry Magonya Chapter Nineteen Recusal of Judges: A Commonwealth Survey of the Applicable Tests 280 Cyrus Das Chapter Twenty The Status of Codes of Judicial Conduct in Comparative Perspectives 292 Shimon Shetreet
Part VI International Courts and Cross Country Issues
Chapter Twenty-One Judicial Independence in the Context of International Investment Law 301 Guiguo Wang Chapter Twenty-Two Judicial Impartiality in International Courts: Of Law and Corruption 318 Wayne McCormack Chapter Twenty-Three Arbitral Awards and Errors of English Law: Refining The Law-Making Function of The Judicial Appeal System 340 Neil Andrews Chapter Twenty-Four The Influence of the European Convention on Human Rights on Judicial Independence in Criminal Procedural Law in Switzerland 363 Gian Andrea Danuser
Part VII Judicial Selection
Chapter Twenty-Five Recent Developments in Judicial Elections in the United States and their Impact on Impartiality of Judges 373 Chandra R. de Silva Chapter Twenty-Six Culture and Judicial Independence in Civil Procedure 387 Dmitry Maleshin
Chapter Twenty-Seven Constitutional Adjudication and Appointments to the uk Supreme Court 396 Sophie Turenne Chapter Twenty-Eight Appointment of Judges and Legal Responsibility of Judges: Guarantees of Independence in Russia 411 Sergey Nikitin Chapter Twenty-Nine The Bumpy Road Towards Judicial Independence: Past, Present and Future Prospects of Mainland China 419 Liu Hao Chapter Thirty Administrative Justice System in Italy 436 Giuseppe Franco Ferrari
Part VIII International Standards of Judicial Independence
Chapter Thirty-One Judicial Independence and the Three Highest Courts in Austria 445 Walter H. Rechberger Chapter Thirty-Two Analysis of the Amendments to the Mt. Scopus International Standards of Judicial Independence 465 Shimon Shetreet
Part IX Text of the International Standards of Judicial Independence
Appendix I – Mount Scopus International Standards of Judicial Independence 487 Appendix II – The New Delhi Code of Minimum Standards of Judicial Independence (adopted by the IBA New Delhi Convention 1982) 512 Appendix III – Universal Declaration on the Independence of Justice 524
In Memoriam: The Late HE Markus Buechel Former Prime Minister of the Principality of Liechtenstein 545
Index 549
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R (on the application of Brooks) v. Parole Board [2008] ca 47 R (on the application of Girling) v Parole Board and another [2007] qb 783, ca 203 R (on the application of Medical Justice) v. Secretary of State for the Home Department [2011] ewca Civ 269, [2011] 1 w.l.r. 2852 347 R (on the application of mm, Majid and Javed) v. Secretary of State for the Home Department [2013] ewhc 1900; [2013] wlr (D) 280 202 R (on the Application of Rob Evans) v Her Majesty’s Attorney General [2013] ewhc 1960 (Admin), 12] 204 R v Baker, 3 Burrows 1266 184 R. v. Barker, 1762, 3 Burr. 1265 184 R v Bow Street Metropolitan Stipendiary Magistrate et al, ex parte Pinochet Ugarte (No. 2) (House of Lords) [1999] 1 all er 577, 2 wlr 27 xxxvii, 23, 294 R v Chaytor [2011] 1 ac 684, sc 204 R v Davis [2008] 1 ac 1128, hl 203 R v dpp ex p Kebilene & Others [2000] 2 ac 326, hl 210 R v Foreign Secretary, Ex p Everett [1989] qb 811 206 R v. Gough (1993) 2 All e.r. 724 281 R v Hickman; Ex parte Fox and Clinton (1945) 70 clr 598 242 R v Hillingdon Borough Council, ex parte Puhlhofer 1986] ac 484 197, 198 R v Hinds [1977] ac 195 at 215 185, 203 R v Home Secretary, ex parte Fire Brigades Union [1995] 2 ac 513 188, 215 R v Kidman (1915) 20 clr 425 236 R v Loumoli (High Court) [1995] 2 nzlr 656, 1995 nzlr lexis 729 xxxvii R v Race Relations Board [1975] 1 wlr 1686 147 R v. S (rd) [1997] 118 c.c.c. (3d) 353 285 R v. Secretary of State for Foreign and Commonwealth Affairs [2009] ewca Civ 158, All er (D) 138 (Dec) 29 R v. Secretary of State for Foreign and Commonwealth Affairs [2010] ewca Civ 65, All ewhc 3316 er (D) 118 (Feb) 29 R v. Secretary of State for Transport, ex parte Factortame Ltd. 398 R v Smurthwaite [1994] 1 All er 898 152 R. v. Valente 2 c.c.c. (3d) 417, at 423 (1983) 498 Rasul v. Bush, 542 us 466 (2004) 28 Re A (Children) [2011] ewca Civ 1205, [2012] 1 w.l.r. 595; [2012] c.p. Rep. 6; [2012] 1 f.l.r. 134; [2012] 1 f.c.r. 379; [2012] Fam. Law 8, at [16] 257 Re hk [1967] 2 qb 617 146 Re Lowther and the Queen, Lowther v Prince Edward Island, 118 dlr (4d) 665 xxxvii Re Medicaments and Related Classes of Goods (No. 2) [2001] 1 wlr 700 23, 294 Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex part Lam (2003) 214 clr 1 237
Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] ac 1136 234 Refah v. Turkey (Application nos. 41340/98, 41342/98, 41343/98 and 41344/98) 476 Republican Party v. Kelly, 63 F.Supp.2d (1999) 376 Republican Party of Minnesota v. White, 536 u.s. 765 (2002) 374, 375, 376 Republic Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005) 380 Rondel v Worsley 191 res (2002) 104טRoquette Fr Royal & Sun Alliance Insurance plc v. bae Systems (Operations) Ltd. [2008] ewhc 743 (Comm), [2008] 1 Lloyd’s Rep. 712; [2008] 1 c.l.c. 711; [2008] Bus. l.r. D127, Walker J. 345, 356, 360 Rutili v. Ministre de l’Interieur, Case 36/75 [1975] ecr 1219 103 SaipemS.p.A. v The People’s Republic of Bangladesh, icsid Case No. ARB/05/7, Decision on Jurisdiction, 21 March 2007 302, 303, 304, 305, 306, 311, 314, 315 SaipemS.p.A. v The People’s Republic of Bangladesh, icsid Case No. ARB/05/7, Award, 30 June 2009 302, 303, 304, 305, 306, 311, 314, 315 Salaman (dec. 22 June 2004) 139 SaliniCostruttori s.f.a. and Italstrade s.p.a. v. Kingdom of Morocco, icsid Case No. ARB/00/4, Decision on Jurisdiction, 16 July 2001 303 Scarlet Extended, November 24, 2011 C-70/10 169 Schiesser v. Switzerland 364, 367, 368 Schmidberger v. Austria, Case C-112/00 [2003] ecr I-5659 103 Schnitzer v. Chief Military Censor 42(4) p.d. 617, h.c. 680/88 29 Schuler (L) ag v. Wickman Machine Tool Sales Ltd. [1974] a.c. 235, H 360 Seepersad v Attorney General of Trinidad and Tobago [2013] 1 ac 659, pc 202 Serrano-Cruz Sisters v. El Salvador. Merits, Reparations and Costs. Judgment of March 1, 2005. Series C No. 120 130 Sheffield United Football Club Ltd. v. West Ham United Football Club plc [2008] ewhc 2855 (Comm); [2009] 1 Lloyd’s Rep. 167 359 Shell Egypt West Manzala GmbH v. Dana Gas Egypt Ltd. [2009] ewhc 2097 (Comm), Gloster J. 355, 360 Sherbert v. Verner, 374 us 398 (1963) 93 Slutsker v. Haron Investments Ltd & Anor [2012] ewhc 2539 (Ch) 276 Sofianopoulos v. Greece (dec. 12 December 2002) 139 SociétéOuestAfricaine des BétonsIndustriels (soabi) v Senegal, icsid Case No. ARB/82/1, Award, 25 February 1988 303 South African Commercial Catering Workers Union v. Irvin & Johnson Ltd. [2000] 3 s.a. 705 280 South Australia v Totani (2010) 242 clr 1 238 Southwark London Borough Council v. Kofi-Adu [2006] ewca Civ 281, [2006] hlr 33, c.a. 263
Spring v Guardian Mutual Assurance [1995] 2 ac 296 191 Sramek v. Austria (gc, 22 October 1984) 139 State v Hodges, 695 s.w. 2d 171 (Tenn 1985) 95 Stauder, November 12, 1969 C29 169 Stephens v West Australian Newspapers (1994) 182 clr 211 241 Stewart v Secretary of State for Scotland, Extra Division, (1996) slt 1203 xxxvii Stoke on Trent City Council v B & Q [1991] 1 ac 49; [1990] 2 c.m.l.r. 377 208 Stork & Co. v. High Authority of the European Coal and Steel Community, Case 1/58, [1959] ecr 17 102 Street Children (Villagran-Morales et al.) v. Guatemala, Merits. Judgment of November 19, 1999. Series C No. 63 122 Stubbs v. ag [2010] 4 l.r.c. 103 283 Sub-Committee on Judicial Accountability v Union of India (Writ Petition (Civil) No. 491 of 1991) (1991) 4 scc 699 xxxvii Sumukan Ltd. v. Commonwealth Secretariat [2007] ewca Civ 243, [2007] Bus. l.r. 1075; [2007] 3 All e.r. 342; [2007] 2 All e.r. (Comm) 23; [2007] 2 Lloyd’s Rep. 87; [2007] 1 c.l.c. 282 345, 350, 351, 357 Summers v. Fairclough Homes Ltd [2012] uksc 26, [2012] 1 w.l.r. 2004 264 Surefire Systems Ltd. v. Guardian ecl Ltd. [2005] ewhc 1860 (tcc), [2005] b.l.r. 534, Jackson 355 Surratt and others v. Attorney General of Trinidad and Tobago [2008] 1 a.c. 655, pc 202 Suratt v Attorney-General of Trinidad and Tobago, [2007] ukpc 55 (uk) 44, 479 Sutherland v United Kingdom (The Times, 13 April 2001), echr 208 Tanrikulu v. Turkey no. 23763/94 echr 1999-IV 120 Taş v. Turkey no. 2396/94, 23 October 1999 129 Te Deum, The Court of Cassation, P.12.0730.N/1 140 The 19 Merchants v. Colombia. Merits, Reparations and Cost. Judgment of July 5, 2004. Series C No. 109 130, 131 Thint (Pty) Ltd and Zuma v National Director of Public Prosecutions [2008] zacc 13 (cc) 53 Thoburn v. Sunderland City Council [2002] e.w.h.c. 195 (Admin) 397 Thoman (10 June 1996) 139 Tikoniyaroi v. State [2012] 2 l.r.c. 280 284 Timurtas v. Turkey no. 23531/94 echr 2000-VI 120 Tiu Tojín v. Guatemala 126 Torch Offshore llc v. Cable Shipping Inc [2004] ewhc 787 (Comm), [2004] 2 All e.r. (Comm) 365; [2004] 2 Lloyd’s Rep. 446; [2004] c.l.c. 433, Cooke J. 342, 344 Transfield Shipping Inc v. Mercator, ‘The Achilleas’ [2008] ukhl 48, [2009] 1 a.c. 61 360 Trujillo-Oroza v. Bolivia. Reparations and Costs. Judgment of February 27, 2002. Series C No. 92 123
Trustees of Christian Brothers v Cardone (Federal Court) (1995) 130 alr 345 xxxvii Trustees of Edmond Stern Settlement v. Simon Levy [2007] ewhc 1187 (tcc), Judge Coulson qc 352 United States v. Danielczyk, 683 F. 3d 611 (2012) 382 United States v. Reynolds 345 us 1 (1953) 111 United States v. Will, 449 us 200 (1980) 492 Union de Pequenos Agricultores v Council of the European Union [2003] qb 893 209 Union Steamship Co of Australia Ltd v King (1988) 166 clr 1 240 Valente v the Queen (Supreme Court of Canada) 1985 scr Lexis 71 xxxvii Varnum v. Brien, 763 nw 2d 862 - Iowa: Supreme Court (2009) 384 Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4 122, 129, 130 Vernon v. Bosley (No. 2) [1999] q.b. 18, c.a. 256 Victoria v Commonwealth (pma case) (1975) 134 clr 81 235 Vladimir Berschader and MoïseBerschader v The Russian Federation; Ros Invest Co uk Ltd. v The Russian Federation; Siemens v Argentina 306 vtb Capital Plc v. Nutritek International Corp & Ors [2011] ewhc 1887 (Comm) 276 W v Registrar of Marriages [2013] hkec 716, cfa 210, 215 Webb v. R [1994] 122 a.l.r. 41 280, 281 West Coast Hote v. Parriash, 300 u.s. 379 (1937) 37 Wettstein v. Switzerland (21 December 2000) 139 White Industries Australia Limited v. The Republic of India, uncitral Case, Final Award, 30 November 2011 308 Wisconsin v. Yoder, 406 us 205 (1972) 93 Yoav Yitzhak v.Aharon Barak President of the Supreme Court 54(2), hcj 1622/00 P D 54 293 Yasa v. Turkey no. 22495/93 echr 1998-VI 120 Yukos Capital sarl v. ojsc Rosneft Oil Company [2011] ewhc 1461 (Comm) 276 Yukos Capital Sarl v. ojsc Rosneft Oil Co. [2012] ewca Civ 855, [2013] 1 All e.r. 223; [2013] 1 All er (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2 c.l.c. 549, c.a. (reversing Yukos Capital Sarl v. ojsc Rosneft Oil Co. [2011] ewhc 1461 (Comm), [2012] 1 All e.r. (Comm) 479; [2011] 2 Lloyd’s Rep. 443; [2011] 2 c.l.c. 129) 82 Zambrano Vélez et al. v. Ecuador. Merits, Reparations and Costs. Judgment of July 4, 2007. Series C No. 166 124, 127 Zuckerfabrik Decision, November 17, 1993 C-134/92 169
Australia
Administrative Decisions (Effect of International Instrument) Bill 1995, s. 4, s. 4(a), s. 4(b) 237 Commonwealth of Australia Constitution Act, s. 7, s. 24, s. 57, s. 73, s. 75, s. 75(b) 241 Community Protection Act 1994 (nsw) 238 Con. l. 1/1948 157, 160 Con l. 1/1953 157 Con. l. 2/1967 170 Con. l. 1/1989 161 Con. l. 3/2001 159 Con. l. 87/1953 157 Constitution Act 1902 (nsw) s. 56 249 Constitution (Amendment) Act 1992 (No. 106) 249 Council of Chief Justices of Australia Guide to Judicial Conduct, 2002 22 Courts Legislation Amendment (Reserve Judicial Officers) Act 2013 (Vic) 248 Courts Legislation Amendment (Judicial Complaints) Act 2012 (Cth) 247 Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth) 248 House of Representatives Standing Order 75 and 78 246 Human Rights Act, 1998 18, 26, 40, 185, 187, 188, 190, 196, 206, 397, 398, 401, 407, 467, 474, 475 Industrial Relations Act 1996 (nsw) s. 179(1) 243 Inquiries Act 2005 147 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth) 247 Local Courts Act 1982 (nsw) 248 Section 8 (7A) of the Australian International Arbitration Act of 1974 146 Senate Standing Order 193(3) 246
Austria
Austrian Administrative Court Act (erwaltungsgerichtshofgesetz 1985) 450 Austrian Act governing the Service of the Judiciary (Richter-und Staatsanwaltschftsdie nstgesetz) 448 Austrian Civil Code (Allgemeines Burgerliches Gesetzbuch) 458 Austrian Civil Procedure Code (Zivilprozessordmung) 459
Austrian Federal Constitutional Act (Bundes-Verfassungsgesetz) 445 Austrian Federal Constitutional Act (Bundes-Verfassungsgesetz), Federal Gazette I 2013/114 456 Austrian Judicature Act (Jurisdiktionsnorm) 450 Austrian Supreme Court Act (Bundesgesetz uber den Obersten Gerichtshof) 450 Austrian Constitutional Court Act (Verfassungsgerichtshofgesetz 1953) 450
Belgium
Article 828 of the Judicial Code 138 Belgian Constitution of 1831 137, 138
Canada
Canadian Constitution Act, 1982 43 Canadian Judicial Council Ethical Principles for Judges, 1998 22
China
Instruction of the Central Committee of Communist Party of China on Abolishing the Six Codes of the Kuomingtang and Confirming the Judicial Principles of the Liberated Areas (1949) 421 The Constitution of the People’s Republic of China (1954) 421, 422, 423, 432 The Organic Law of the People’s Courts (1954) 421 The Organic Law of the People’s Procuratorates (1954) 421 The Constitution of the People’s Republic of China (1975) 422 The Constitution of the People’s Republic of China (1982) 423, 424, 426, 427, 429, 431, 432, 433, 434 The Organic Law of the People’s Courts (1979) 422 The Organic Law of the People’s Courts (1983) 423 The Organic Law of the People’s Procuratorates (1983) 423 The Law of Judges (1995) 423, 429 The Law of Public Procurators (1995) 423 The Law of Supervision by the Standing Committees of the People’s Congresses at All Levels (2006) 427 The Organic Law of the Local People’s Congresses and the Local People’s Governments 427 The Rules of Procedure for the Standing Committee of the National People’s Congress (1987) 427
The Rules of Procedure for the National People’s Congress (1989) 427 The Law of Deputies to the National People’s Congress and to the Local People’s Congresses at Various Levels (1992) 428 Several Provisions Concerning the Power of the Court President and Presiding Judges in Examining and Verifying Cases 430
European Union
Art. 1(2)(d) of the eu Jurisdiction Regulation (Council Regulation 44/2001 of 22 December 2001 on ‘jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’) 76 Article 6 of the European Convention on Human Rights 40, 45, 73, 74, 79, 82–85, 147, 345, 357 Article 10 of the European Convention on Human Rights 151 ‘Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters’: Official Journal L. 136, 24/05/2008 P 0003 – 0008 267 European Convention on Human Rights 274 European Convention on Human Rights, Article 5 364, 365, 367, 368, 269 European Convention on Human Rights, Article 6 40, 45, 73, 74, 79, 82–85, 147, 345, 357, 369
France
French Constitution 32 Constitutional Act no. 2008-724 of July 23, 2008 32
Germany
German Code of Civil Procedure of 1877 388 German Civil Procedure Code (Zivilprozessordnung) 447 German Constitutional Act (Grundgesetz) 453, 457
Hong Kong
Air Pollution Control Ordinance (Hong Kong) 208 Antiquities and Monuments Ordinance (Hong Kong) 211
Basic Law of the Hong Kong Special Administrative Region 206 Crimes Ordinance (Hong Kong) 208, 209 Hong Kong Bill of Rights Ordinance 207, 210 Immigration Ordinance (Hong Kong) 146 Matrimonial Causes Ordinance (Hong Kong) 210 Marriage Ordinance (Hong Kong) 210 Village Representative Elections Ordinance (Hong Kong) 212
Italy
26-38/1993; 14-42/1997 174 Art. 7 of the Administrative Procedure Code 440 Art. 112 of the Ad. Proc. Code; Lgs. d. no. 163/2006, art. 241; l.288 of December 24, 2007, Arts. 3.19 and 3.20 441 Article 103 of the 1948 Constitution 436 Dec 263/2003; Dec 379/2003 175 Dec 226/2008; Dec. 31-51/2000; 41-46/2003; 45-49/2005; 15-17/2008; 24-29/2011 176 Decisions 311 and 317 167 Delegation statute no. 69/2009 437 Instance decisions 1146/1988 155 Legislative decree no. 28/2010 437 Legislative decree no. 28/2010, Article 5.1 438 Legislative decree no. 53/2010 441 Legislative decree no. 104/2010 437 Legislative decree no. 104/2010, Article 6.2 439 Legislative decree no. 104/2010, Article 12 439 Ord. 103/2008; Dec. 14 May 1974 C-4/73; Dec. 12 November 1969 C-29/69; Dec. 17 November 1993, C-134/92; Dec. 9 November 1995, C-465/93 169 1/1948 l. Court Constitutional Italian Constitutional Court l. 1/1953 157 Italian Constitutional Court l. 2/1967 170 Italian Constitutional Court l. 1/1989 161 Italian Constitutional Court l. 3/2001 159 Italian Constitutional Court l. 87/1953 157
Italian Constitutional Court Ordinances
Italian Constitutional Court Ordinance 2005 nos. 31, 353, 354, 404 175 Italian Constitutional Court Ordinance 2006 nos. 161, 368 175
Italian Constitutional Court Ordinance 2007 nos. 124, 125, 337, 338 175 Italian Constitutional Court Ordinance 2008 nos. 8, 103, 334 168, 174
Italian Court of Cassation
Italian Constitutional Court Cassation 2004 Sez. Un., nos. 1338, 1339, 1340, 1341 167
Malaysia
Article 4 of the Federal Constitution 364 Article 58 of the Federal Constitution 230
Peru
Perù, Supreme Decree 065-2001-PCM 126
Poland
Art. 10 of the Constitution from 1997 220 Art. 86 Ustawy o Ustroju Sądów Powszechnych (Statute on the Structure of Judiciary), Statute from 27 July 2001, Official Gazette 2001 no. 98 pos. 1070 220
Russia
Arbitration Procedural Code of the Russian Federation, s. 21 (1), 22, 24 (1), p. 8; s. 4, 8–9, p. 9 278 Civil Procedural Code of the rsfsr 1923, s. 5; Civil Procedural Code of the rsfsr 1964, s. 14 277 Civil Procedure Code of the Russian Federation. 2002 228 Civil Procedural Code of the Russian Federation, s. 16 (1), 17, 19, p. 8; s. 3, 12, p. 9 278 Commercial Arbitration Procedure Code of the Russian Federation, 2002 225, 228 Constitution of the Russian Federation 1993, s. 15 (4) amended by laws No. 6-FKZ and No. 7-FKZ 2008, p. 4, 5 274 Criminal Procedure Code of the Russian Federation, 2001 225, 226
Federal Constitutional Law No. 1-FCL “On Arbitration Courts in the Russian Federation” of 28 April 1995, paragraph 2, article 13; paragraph 6, article 58 of the Law of the rsfsr “On Judicial Administration of the rsfsr” 230 Judicial Independence Standards 223, 227 Plenum of the Supreme Court of the Russian Federation, Decree No. 23 “On Judicial Decisions” of 19 December 2003. Bulletin of the Supreme Court of the Russian Federation (2004) 2 230 Russian Code of Civil Procedure of 1864 393 Russian Code of Civil Procedure of 1964 393 Russian Code of Civil Procedure of 2002 393
South Africa
Judicial Services Commission Amendment Act, 20 of 2008 63 Section 178(1) of constitution 51, 55 Section 178(k) of constitution 61
United Kingdom
Access to Justice Act 1999 256 Arbitration Act 1996 340, 341, 342, 343, 345 Bill of Rights of 1689 234 Ceylon Act of 1962 185 c.p.r. 35.4(1) to (3); c.p.r. 52.3(1) 263, 264 Constitutional Reform Act 2005, ss. 28 and 30; Constitutional Reform Act 2005, s. 30; Constitutional Reform Act 2005, s. 26; Section 27A (2) (a) and (b), Constitutional Reform Act 2005; Crime and Courts Act 2013, Sch. 3, para. [5] 402 Constitutional Reform Act 2005 18, 39, 44, 45, 66, 296, 396, 397, 402, 403, 404, 406, 408, 467 Coroners and Justice Act of 2009 194 Courts and Legal Services Act 1990 256 Crime and Courts Act 2013, Sch. 13, paras [1–2], [4], [5], [20] 402, 403, 406, 408 Cross-Border Mediation (eu Directive) Regulations 2011/1133 267 c.p.r. 22.1(1)(a) 256 c.p.r. 32.14 256 Equality Rights Act 1996 270 Equality Act 2010 270 Freedom of Information Act (uk) 204
Government of Wales Act 2006 399 High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996/3215C.P.R. 62.1(3); p.d. (61), para. 2.3(2) 345 Housing Act 1996 198 Housing (Homeless Persons) Act 1977 197 Legal Aid, Sentencing and Punishment of Offenders Act 2012 256 National Economy Act of 1931 295 Northern Ireland Act 1988 399 Order 53 of the Rules of the Supreme Court 182, 184 Police and Criminal Evidence Act 1984 151 Representation of the People Act 1983 399 Rule 13 of the Inquiry Rules 2006 148 Supreme Court Guide to Judicial Conduct, 2009 23 Scotland Act 1998 399 Tribunals, Courts and Enforcement Act 2007, ss. 50-52 44, 402, 479
United Nations
United Nations, Human Rights Council Resolution 12/12, 12 October 2009 108 United Nations, Human Rights Council Resolution 9/11, 24 September 2008 108 United Nations, International Convention for the Protection of All Persons from Enforced Disappearance, 2006 108 United Nations, Set of principles for the protection and promotion of human rights through action to combat impunity, 2005 108 United Nations, Vienna Convention on Consular Relations, 1963 116 Article 34(2), uncitral Model Law on International Commercial Arbitration 1985 (as amended in 2006) 341 Universal Declaration of Human Rights 431
United States of America
26 usc 3127 (2006); 10 usc 774 (2006); 42 usc 2000e-1 94 28 u.s.c. §331 (2000) 42 Act of Aug. 7, 1939, ch. 501, 53 Stat. 1223 (1939) 42 Act of June 22, 1870, ch. 150, 16 Stat. 162 (1870) 42 Act of Mar. 3, 1849, ch. 98, 9 Stat. 395 (1849) 42 Air Safety Act, 2005 30 Bipartisan Campaign Reform Act (McCain-Feingold Act) 2002 377
Ethics in Government Act of 1978 (Public Law 95–251) 294 Federal Election Campaign Act, 1971 376 Free Exercise Clause 90, 93 Judiciary Act, 1789 24 Judicial Service Commission Constitution 51, 52, 59, 63 Pub. L. No. 103-141, 107 Stat.1488 (codified at 42 usc 2000bb to 2000bb-4 (2006)); City of Boerne v. Flores, 521 us 507 (1997) 93 Minnesota Constitution, Art. VI, § 7 375 Religious Freedom Restoration Act of 1993 93 United States Constitution 21, 37, 236 us Constitution’s Compensation Clause u.s. Const., Art. III, §1; us v. Hatter (99-1978) 532 u.s. 557 (2001) 203 F.3d 795; Evans v. Gore, 253 u.s. 245, 253 (1920); O’Malley v. Woodrough, 307 u.s. 277 (1939) 492
Conventions and Treaties
American Convention on Human Rights, 1969 123, 128, 129 Australia-India bit 309 Australia–India bit, Article 1 (iii) 309 Australia–India bit, Article 4 (2) 309 Bangladeshi Arbitration Act of 1940, Section V 315 Bangladesh–Italy bit, Article 5 307 Bangladesh–Italy bit, Article 9 305 Bangladesh–Italy bit 305 Canada’s model bit (2004), Article 1 313 Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms (or European Convention of Human Rights), 1953 106, 115, 120, 128, 129, 132, 151, 166, 175 Energy Charter Treaty 302 European Constitution 105 European Convention on Human Rights in 1978 182 Germany–Ukraine bit (1993) 311 Germany–Ukraine bit (1993), Article 1(1)(e) 311 icsid Convention 302, 305, 306, 311, 315 icsid Convention, Article 25 304, 311 India–Kuwait bit, Article4 (5) 309 Japan–Singapore epa, Article 72(a)(v) 313 Lisbon Treaty 100, 104, 106 Maastricht Treaty of 1992 100, 102
New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 307 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Article II 307 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Article 5 316 Nice Treaty of 2001 100, 102 The International Covenant on Civil and Political Rights 274 The Montreal Declaration 1983 465, 466, 469 Treaty of Amsterdam of 1997 100, 102 Treaty establishing a Constitution for Europe, 16 December 2004, o.j. C 310/01 105 Treaty Establishing the European Community 106 Treaty on European Union 106 Universal Declaration of the Independence of Justice 1983 466, 469
Rules, Codes, and Standards
American Bar Association Cannons of Ethics, 1924 22, 292 American Bar Association Model Code of Judicial Conduct 327 California Cannons of Ethics, 2003 22, 293 Canadian Judicial Council, Ethical Principles for Judges (1998) 293 Code of Conduct for u.s. Judges, 1973 22, 292 Council of Chief Justices of Australia, Guide to Judicial Conduct (2002) 293 Guide to Judicial Conduct 294 International Project on Judicial Independence Mt. Scopus Standards 472 International Commission of Jurists 327 Minnesota Code of Judicial Conduct; Minnesota Rules of Board on Judicial Standards 4(a)(6), 11(d) (2002); Minnesota Rules of Professional Conduct 8.2(b) (2002); Minnesota Rules on Lawyers Professional Responsibility 8-14, 15(a) (2002) 375 Model Code of Judicial Conduct, 2011 22 North Carolina Code of Judicial Conduct, Canon 7 (amended Apr. 2, 2003) and the Georgia Code of Judicial Conduct, Canon 7B (amended Jan. 7, 2004); Canon 5 B (1) (as amended Dec. 22, 2003); for a discussion see Chandonnet, op. cit. pp. 596–601; F.3d 738 (8th Cir. 2005)at 755-6, 759, 761-2; 309 F.3d 1312 (Ga. 2002) 380 Standard 402 (b) of the aba Standards for Approval of Law Schools 2013–2014, American Bar Association, Chicago Illinois 2013 219 Texas Code of Conduct 22, 293 The Judicial Ethical Rules (Israel) 293
The New Delhi Code of Minimum Standards of Judicial Independence 1982 465, 466, 467, 469, 512–523 Ministerial Code (uk) 2010 294 Utah’s Rule 2.11(A) (4) adopted effective April 1, 2010 382 Model Code of Judicial Conduct 2011 292 Mt. Scopus Standards of Judicial Independence of 2008 465, 466, 472, 476, 478, 481 Mt. Scopus Standards of Judicial Independence of 2008, Article 1.3 476, 477 Mt. Scopus Standards of Judicial Independence of 2008, Article 4.10 480 Mt. Scopus Standards of Judicial Independence of 2008, Article 7.12 479 Mt. Scopus Standards of Judicial Independence of 2008, Article 9A 478, 482 Mt. Scopus Standards of Judicial Independence of 2008, Article 9B 481 Mt. Scopus Standards of Judicial Independence of 2008, Article 4.10 480 Mt. Scopus Standards of Judicial Independence of 2008, Article 7.12 479 Mt. Scopus Standards of Judicial Independence of 2008, Article 7.1 479 Universal Declaration of the Independence of Justice 1983 469
This volume, Culture of Judicial Independence: Rule of Law and World Peace, is a natural academic continuation of the two previous volumes, Judicial Indepen dence: The Contemporary Debate, edited by Professor Shimon Shetreet and Chief Justice Deschenes (1985), and The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges edited by Professor Shimon Shetreet and Professor Christopher Forsyth (2012). The focus of this volume is the culture of judicial independence, the rule of law, and world peace. This volume, the third in the trilogy of volumes on judicial independence, offers analysis, insights and opinions from academics, judges and practitioners across jurisdictions – both national and international – on the subject of judi- cial independence, providing both an in-depth and a broad analysis of this important subject. The three volumes are the work of the International Project of Judicial Independence of the Association of Judicial independence and World Peace (jiwp) (www.jiwp.org). The International Project of Judicial Independence is co-sponsored by the Hebrew University of Jerusalem Faculty of Law and University of Cambridge Public Law Centre. The creation of a culture of judicial independence is of central significance both for national domestic legal systems, as well as for the international courts and tribunals. The judiciary must be both independent and impartial. Both requirements are necessary for fair adjudication. Both conditions are neces- sary in order to insure the rule of law and to maintain the protection of human rights. It is to be noted also that the prevailing line of thought on judicial indepen- dence now emphasizes the importance of building and maintaining a culture of judicial independence, thus going beyond the necessary protection of the concept of judicial independence and creating a culture of judicial indepen- dence. The culture of judicial independence is created on five important and essential aspects: creating institutional structure, establishing constitutional infrastructures, introducing legislative provisions and constitutional safe- guards, creating adjudicative arrangements and jurisprudence, and maintain- ing ethical traditions and code of judicial conduct.1
1 Shetreet, Creating a Culture of Judicial Independence: The Practical Challenge and the Conceptual and Constitutional Infrastructure, in, Shimon Shetreet and Christopher Forsyth (Eds), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges 17 (2012).
It should be emphasized that the culture of judicial independence includes not only formal aspects and arrangements provided for in constitutional provi- sions or in statutory regulations, but also includes informal aspects which develop by tradition, practice, and conventions over the years in each jurisdiction.2 Judicial independence is essential for the rule of law and critical for the proper functioning of civil society. Without impartial and independent dis- pute resolution, there is no substantive protection of human rights, no true economic security or free market, and no good government or civil order. The rule of law requires judicial independence as a precondition. Judicial independence is of central importance, not just in regard to human rights, constitutionality and the rule of law, but also in regard to globalization and free and efficient economic activity and international trade and invest- ments. The legitimate expectation of fair and independent adjudication is one of the necessary prerequisites for economic growth and for foreign invest- ments in a global economy. The issues of judicial independence, the rule of law, and world peace have undergone dynamic development in both the national and international spheres. For over three decades the Members of the jiwp Association who are distin- guished experts from many countries – including the u.s., Canada, the u.k., Israel, Italy, Belgium, Poland, Hong Kong, Russia, Austria, India, Australia, Malaysia, Switzerland, China – have joined forces in an international project on judicial independence. In the course of this project, the experts studied and developed conceptual and theoretical aspects of judicial independence in national and international levels. These innovative concepts include the con- cepts of institutional judicial independence, internal judicial independence, judicial diversity and the fair reflection of society in the judiciary have become widely-understood and valued concepts. In addition, the members of the jiwp association developed detailed standards of judicial independence, dealing with different aspects of this matter applicable to both national and interna- tional judges. Members of the Association have also been active in the Culture of Peace Project and in the Religions for Peace Organisation International (rpo Inter national) and have organized numerous conferences all around the world, including in Trento, Gaflei (Liechtenstein), Rhodes, Aqaba, Amman, and Casablanca. The Association believes that justice and peace go hand in hand
2 L. Neudorf, Shimon Shetreet and Christopher Forsyth (Eds), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, Leiden: Martinus Nijhoff, 2012, 76 Modern Law Review, 181–184 (2013).
3 See Shetreet, “Peace Today: Reflections on Four Foundations of Culture of Peace” in Prince Nikolaus Von und Zu Liechtenstein and Cheikh Gueye (eds.), Peace and Intercultural Dialogue, Universitaetverlag, Heidelberg and International Academy of Philosophy: 2005, pp. 195–205; Shetreet, Chapter 6, this volume. 4 http://www.jiwp.org/mt-scopus-standards/c14de. 5 See the following added Articles to the Mount Scopus International Standards: Articles 1.3, 1.4, 4.10, 7.12, 9A, 9B.
The present volume of Culture of Judicial Independence: the Rule of Law and World Peace, edited by Shimon Shetreet, the third volume of the Judicial Independence Project, co-sponsored by the Hebrew University of Jerusalem faculty of law and the Centre of Public Law of the University of Cambridge, uk, reflects the research and studies presented at the four conferences held in the framework of The International Project on Judicial Independence of which the undersigned is the General Coordinator. The conferences upon which this volume is based are:
(1) The International Conference on Judicial Independence: Culture of Judicial Independence at University of Vienna, 19–21 May, 2011, co-chaired by Prof. Walter Rechberger and Prof. Shimon Shetreet, focusing on judi- cial independence as the essential element for economic order. (2) The International Conference on Judicial Independence and Globalization at City University of Hong Kong, 21–23 March, 2012, co- chaired by Prof. Anthony Cooray and Prof. Shimon Shetreet, focusing on the globalization of judicial independence. (3) The International Conference on Judicial Independence: Impartiality and Fairness of the Judicial Process at University of Ghent, 18–20 October, 2012, co-chaired by Prof. Marcel Storme and Prof. Shimon Shetreet, focus- ing on the impartiality and fairness of the judiciary. (4) The International Conference on Judicial Independence: The Rule of Law and World Peace at University of San Diego, 9–10 August, 2013, co-chaired by Prof. Maimon Schwarzschild and Prof. Shimon Shetreet, focusing on Judicial Independence: The Rule of Law and World Peace.
The Standards adopted and the studies published by the members of the jiwp Association have promoted judicial independence inter alia by increasing understanding and awareness of the direct connections between an inde pendent and impartial judiciary, and the rule of law, democracy, liberty, free- dom and peace among the public, in political circles and within the legal profession. The principle of judicial independence is one of the fundamental values of the administration of justice. These values include procedural fairness, effi- ciency, 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. It is with great satisfaction that it may be noted that the works of the International Project of Judicial Independence received world wide recognition
Shimon Shetreet Mt. Scopus, Jerusalem October 2013
6 The following is a small sampling of the cases in which the works of the project have been relied upon: European Court of Human Rights: Baka v. Hungary, Application No. 20261/12, paragraph 61 (27 May 2014), Australia: Trustees of Christian Brothers v Cardone (Federal Court) (1995) 130 ALR 345, Ebner v Official Trustee in Bankruptcy (M131 of 1999), Clenae Pty Ltd et al v Australia and New Zealand Banking Group Ltd (M2 of 200), High Court of Australia, 176 A.L.R. 644; [2000] HCA 63, [1999] 4 MLJ 650, INSAS, Bhd & Anor v Raphael Pura (High Court) Civil Suit No. S2-23-42 (1996); Canada: Re Lowther and the Queen, Lowther v Prince Edward Island, 118 DLR (4d) 665, Valente v the Queen (Supreme Court of Canada) 1985 SCR Lexis 71; England: R v Bow Street Metropolitan Stipendiary Magistrate et al, ex parte Pinochet Ugarte (No. 2) (House of Lords) [1999] 1 ALL ER 577, 2 WLR 27, Evan Rees et al v Richard Alfred Crane [Appeal From the Court of Appeal of Trinidad and Tobago], Privy Council, [1994] 2 AC 173; Fiji: Iftakhar Khan v President of the Fiji Islands, HBJ007/00L (High Court of Fiji Lautoka) [2002] NZAR 393; 2000 NZAR LEXIS 90 ;India: Sub-Committee on Judicial Accountability v Union of India (Writ Petition (Civil) No. 491 of 1991) (1991) 4 SCC 699; Malaysia: Kuala Lumpur, 25th February 2009; New Zealand: Public Prosecutor v Mohamed Ezam Bin Mohd Nor, Criminal Trial No. 45-06 of 2001 [2001] 3 MLJ 34, R v Loumoli (High Court) [1995] 2 NZLR 656, 1995 NZLR LEXIS 729; Scotland: Stewart v Secretary of State for Scotland, Extra Division (1996), SLT 1203. 7 Shetreet, Chapter 31 of this volume.
This volume is the work of the International Project of Judicial Independence of the jiwp Association co-sponsored by University of Cambridge Public Law Centre and the Hebrew University of Jerusalem Faculty of Law. This project on judicial independence has been supported by numerous foundations, aca- demic institutions, and distinguished scholars. First and foremost, I wish to express my thanks to the distinguished schol- ars, judges, and practitioners who have taken part in the adoption and amend- ment of the Mount Scopus Standards on Judicial Independence and in the International Project of Judicial Independence. I am deeply indebted to the jurists who took part in the four international conferences of judicial indepen- dence at the University of Vienna (2011), the City University of Hong Kong (2012), the University of Ghent (2012), and the University of San Diego (2013). I am grateful also to the distinguished jurists that will take part in the upcom- ing conferences, which are planned to be held in Moscow (2014) and at the University of Osnabrück in Germany (2014) as well as to the hosting institu- tions of the coming conferences: Moscow State University of Law and Russian Academy of Justice and the University of Osnabrück. I am also deeply indebted for the academic contributions of the distinguished jurists who take part in this volume. I am grateful to the members of the Advisory Editorial Board of this volume: Professor Christopher Forsyth, Professor Marcel Storme, and Professor Anton Cooray. Thanks are due to the Officers of the International Association of Judicial Independence and World Peace, the jiwp Association, for their devoted efforts to promote judicial independence through the work of the Association. We mourn the untimely passing away of the Vice President of the JIWP Association H.E. Markus Buechel. I am grateful to my colleagues at the University of Cambridge, Christopher Forsyth, Neil Andrews, James Crawford and David Feldman. They helped me in developing the idea to embark upon the latest round of the International Project of Judicial Independence, culminating in the Mt. Scopus Standards of Judicial Independence. This idea was developed during my term as the Herbert Smith Visiting Professor at the Faculty of Law at the University of Cambridge and as Senior Academic Visitor at Clare College. The University of Cambridge, Centre of Public Law, and the Hebrew University, Harry and Michael Sacher Institute of Comparative Law, co-spon- sored the international project on judicial independence, and I am grateful to
Shimon Shetreet Mt. Scopus, Jerusalem October 2013
Neil Andrews Professor of Civil Justice and Private Law, Faculty of Law, University of Cambridge; Fellow of Clare College, Cambridge; Bencher of Middle Temple, 2007; Member of the American Law Institute; Vice-President, 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.
Baron Marc Bossuyt (Ghent, 9 January 1944), ll.d. (Ghent); Dr. sc. pol. (Geneva); Dr. h. c. (Hasselt); President Constitutional Court Belgium; Emeritus Professor (Antwerp); Honorary Commissioner General for Refugees; former Chairperson of the un-Commission and un-Sub-Commission on Human Rights; Member of the Committee on the Elimination of Racial Discrimination.
Anton Cooray of City Law School, City University London, was until recently Professor of Law and 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.
Gian Andrea Danuser born in 1947, studied law and sociology of law at State University Milan, Italy, and at University of Zurich, Switzerland, lic. iur. (University Zurich) 1971, clerk at Zurich District Court 1971, 1972, practicing barrister in Zurich since 1974, sec- retary of the International Association of Judicial Independence and World Peace.
Cyrus Das llb(Hons) phd is a senior legal practitioner at the Malaysian Bar and an Adjunct Professor of Law. His specialties are administrative and
Chandra R. de Silva is Professor of History and Vice Provost for Faculty Development at Old Dominion University. He has written extensively on contemporary education, ethnicity, politics and law.
Giuseppe Franco Ferrari is a tenured professor of comparative public law at “L. Bocconi” University, Milan; former tenured professor at Teramo (1986–1990) and Pavia (1990–1999). He is also president of the Italian Association of Public Comparative and European law – dpce – (1999 till nowadays), member of the committee of the Italian Association of Comparative law (aidc), editing director of dpce review. He is co-editor of the manual “Diritto pubblico comparato”, Rome (2009) and editor of “Diritto pubblico dell’economia,” Milan (2010, 2013). He has been member of the Committee of experts on public administration of the UN Economic and Social Council (2002–2007).
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 recog- nised 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 ph.d 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 bar- rister, a Bencher of the Inner Temple, and sits as a Recorder in the Crown Court in England.
Liu Hao is Director of Institute of Aviation Law and Standard of Beihang University (buaa) and Deputy Director of National Research Center of ATM Law and Standard in China. He is also a fellow of Law School of Beihang University (buaa).
Hoong Phun (“HP”) Lee holds the Sir John Latham Chair of Law at Monash University. Professor Lee’s publications include The Australian Judiciary (2nd ed. Cambridge University Press, 2013) (co-author) and Judiciaries in Comparative Perspective (Cambridge University Press, 2011) (editor).
Wayne McCormack (B.A. Stanford University, J.D. University of Texas) is the E.W. Thode Professor of Law at the University of Utah. He has written widely in constitutional law and international criminal law with emphasis on counter-terrorism.
Dmitry Magonya is the Managing Partner of art de lex Law Firm (Russia), concentrating on civil (arbitration) procedural law and corporate and competition law. Mr. Magonya also oversees Social Responsibility and Pro Bono, including profes- sional higher education projects.
Dmitry Maleshin Professor of Civil Procedural Law at Moscow State Lomonosov University. He has been a Visiting Scholar at Yale Law School (2004) and Harvard Law School (2008). He is a member of the Council of International Association of Procedural Law and the International Law Association Civil Litigation Committee; International Society of Legal Scholars; Russian Association of International Law; etc. Member of a number of official drafting groups con- cerning civil procedure and education legislation. Member of Academic coun- cil of Federal Bailiff Service, Federal Notary Public Chamber, Moscow Arbitrazh Court, etc. Author of more than 100 academic publications in Russian, English and French. He has written on Russian civil procedure, comparative civil pro- cedure, law and culture.
Sergey V. Nikitin Doctor of Law, Professor, Honoured Jurist of the Russian Federation, Pro- Rector of the Russian Academy of Justice, Member of the Higher Qualification Commission of Judges of the Russian Federation. Academic interests – judicial control over legal acts, judicial evidence, bankruptcy legislation.
Walter H. Rechberger is Professor of Law at the Vienna University School of Law where he acted as dean from 1999 to 2006, currently he is head of the Department of Civil Procedure (Institut für Zivilverfahrensrecht). He got degrees of honorary
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.
Shimon Shetreet LLB, LLM, Hebrew University, MCL, DCL, University of Chicago 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 with Chief Justice Jules Deschenes (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), On Adjudication (2004), Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, with Christopher Forsyth (Martinus Nijhoff Publishers, 2012), Uniform Civil Code: The Challenge of Implementing Uniform Civil Code for India, with Hiram Chodosh (2013), and Judges on Trial: Independence and Accountability of the English Judiciary with Sophie Turenne (2013). 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 the New Delhi Code of Minimum Standards of Judicial Independence 1980–1982 In recent years Professor Shetreet together with Professor Christopher Forsyth was the head of the International Project on Judicial Independence which held ten international conferences. Professor Shetreet 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 and in Peres Cabinet (1992–1996). He served as senior deputy Mayor of Jerusalem (1999–2003). He is the President, International Association
Marcel Storme is the Director of Institute Procedural and European Law. He graduated from Ghent University in 1952 and got post graduate degrees from University of Paris and London School of Economics. Barrister at the Gent Bar since 1952, Prof.em. Gent and Antwerp, Honorary President of the International Association Procedural Law, Former President of the Belgian Academy of Sciences and Arts, Former Member of the Belgian Parliament. He has published many books, including Burden of Proof, General Principles of Law, and numerous articles.
Sophie Turenne ma (Cantab.), ph.d (Paris II Panthéon-Assas), Associate Lecturer, Faculty of Law, University of Cambridge; Fellow of Murray Edwards College. Dr Turenne’s publications include Le juge face à la désobéissance civile. Etude en droits améri- cain et français comparés (2007) and Judges on Trial. The Independence and Accountability of the English Judiciary (2013), co-authored with Shimon Shetreet.
Arianna Vedaschi is Associate Professor of Public Law at Bocconi University, Milan. She is the author of À la guerre comme à la guerre? La disciplina della guerra nel diritto costituzionale comparato (Giappichelli 2007); Istituzioni europee e tecnica
Guiguo Wang is Chair Professor of Chinese and Comparative Law, City University of Hong Kong; Chairman of the National Committee (HK) and Titular Member of the International Academy of Comparative Law; Chairman of the Hong Kong WTO Research Institute; Honorary Advisor to the Ombudsman of Hong Kong; Vice President of the Chinese Society of International Economic Law and an experienced arbitrator.
Fryderyk Zoll is 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 eu 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.
Part one General
∵
Chapter one General Introduction
The work of the International Project of Judicial Independence of the International Association of Judicial Independence (jiwp Association), which for nearly ten years has been co-sponspered by the Hebrew University Faculty of Law and the University of Cambridge Public Law Centre, has produced three volumes on judicial independence, the present one being the third one in this trilogy. This trilogy of volumes is in addition to numerous other publica- tions that the members of the project have published. In the previous two volumes on judicial independence,1 and in this volume Culture of Judicial Independence: Rule of Law and World Peace as well as in the other publications, and in the international standards they authored,2 the members of the jiwp Association have introduced innovative concepts of judi- cial independence clarifying significant components which are essential for the rule of law, liberty, democracy and human rights, and are necessary for good and orderly economy, and world peace. This was done over a long period of over thirty years through major interna- tional conferences involving major important international organizations, and the drafting of international standards and declarations. The concepts devel- oped during this process include, the independence of the individual judge (both substantive and personal), the institutional or collective independence of the judiciary as a whole, the internal judicial independence of the judge vis-a-vis colleagues and superiors, the principle of fair reflection of society in the judiciary or judicial diversity, proper considerations for judicial selection, and finally, the proper demarcation of lines between the judiciary of other branches of government. In well over three decades, the Association and its members have contrib- uted to the advancement of the rule of law and world peace through its promo- tion of an independent judiciary. The Association has devoted itself to the
1 Judicial Independence: The Contemporary Debate, edited by Professor Shimon Shetreet and Chief Justice Deschenes (Martinus Nijhoff 1985), and The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges edited by Professor Shimon Shetreet and Professor Christopher Forsyth (Martinus Nijhoff 2012). 2 Mount Scopus Standards, Appendix I, this Volume Part IX; The Montreal Declaration, Appendix III, Id.; and the New Delhi Code of Minimum Standards of Judicial Independence, Appendix II, Id.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_002
3 http://www.jiwp.org/ji-jerusalem-conference-2007/c1v6k. 4 For the full program, see http://www.jiwp.org/ji-vadouz-conference-2007/c1ww7. 5 For the full program, see http://www.jiwp.org/ji-conference-jerusalem-2008/cl5c. 6 For the full program, see http://www.jiwp.org/ji-conference-krakow-2008/c21e8. 7 For the full program, see http://www.jiwp.org/ji-conference-cambridge-2009/c1umr.
Professor Hiram Chodosh, Professor Wayne McCormack, and Professor Shimon Shetreet. The conference focused on the analysis of challenges of implement- ing judicial independence in multicultural socieities and in times of crisis.8 The seventh International Conference on Judicial Independence was held at the University of Vienna in Vienna in May 2011 and was co-chaired by Professor Walter Rechberger and Professor Shimon Shetreet. The conference focused on judicial independence as an essential element for economic order.9 The eighth International Conference on Judicial Independence was held at the City University of Hong Kong in Hong Kong in March 2012 and was co- chaired by Professor Anton Cooray and Professor Shimon Shetreet. The confer- ence focused on the globalization and judicial independence.10 The ninth International Conference on Judicial Independence was held at the University of Ghent in Ghent, Belgium in October 2012 and was co-chaired by Professor Marcel Storme and Professor Shimon Shetreet. The conference focused on the impartiality and fairness of the judicial process.11 The tenth International Conference on Judicial Independence was held at the University of San Diego in San Diego, California in August 2013 and was co- chaired by Professor Maimon Schwarzschild and Professor Shimon Shetreet. The conference focused on judicial independence, rule of law, and world peace.12 It is to be noted also that the prevailing line of thought on judicial indepen- dence now emphasizes the importance of building and maintaining a culture of judicial independence, thus going beyond the necessary protection of the concept of judicial independence and creating a culture of judicial independence.13 The culture of judicial independence is created on five important and essential aspects: creating institutional structure, establishing constitutional infrastructures, introducing legislative provisions and consti- tutional safeguards, creating adjudicative arrangements and jurisprudence, and maintaining ethical traditions and code of judicial conduct. The institu- tional structures regulate the matters relative to status of the judges and jurisdiction of the courts. The constitutional infrastructure embodies in the constitution the main provisions of the protection of the judiciary.
8 For the full program, see http://www.jiwp.org/ji-conference-utah-2010/cnn0. 9 For the full program, see http://www.jiwp.org/ji-conference-vienna-2011/c1uyy. 10 For the full program, see http://www.jiwp.org/ji-conference-hong-kong-2012/cgve. 11 For the full program, see http://www.jiwp.org/ji-conference-ghent-2012/c1x5g. 12 For the full program, see http://www.jiwp.org/ji-conference-san-diego-2013/c1nww. 13 Shetreet, Creating a Culture of Judicial Independence: The Practical Challenge and the Conceptual and Constitutional Infrastructure, in, Shimon Shetreet and Christopher Forsyth (Eds), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges 17 (2012).
The legislative provisions offer a detailed regulation of the basic constitu- tional principles. The courts add to the constitutional infrastructure and the legislative provisions, complimentary interpretations and jurisprudence on different aspects of the conduct of judges, operations and 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 involvement, which might cast doubts on judicial neutrality. It should be emphasized that the culture of judicial independence includes not only formal aspects and arrangements provided for in constitutional provisions or in statutory regulations, but also includes informal aspects which develop by tradition, practice, and conventions over the years in each jurisdiction.14 International law plays a significant role in creating the culture of judicial independence in domestic law. I have elsewhere described this process as the normative cycle of the international and national law in the area of judicial independence.15 International law influences domestic law by virtue of inter- national 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 recent example is the Mt. Scopus International Standards on Judicial Independence (“Mt. Scopus Standards”).16 This volume is divided into nine parts: Part I, General; Part II, Judicial Independence, Human Rights, Democracy, The Rule of Law and World Peace; Part III, Constitutional Position of Top Courts; Part IV, Relations Between the Judiciary and the Other Branches of Government; Part V, Impartiality of the Judicial Process; Part VI, International Courts and Cross Country Issues; Part VII, Judicial Selection; Part VIII, International Standards of Judicial Independence; and Part IX, International Texts. on Judicial Independence.
14 See book review on the second volume in Modern Law Review. See Leone Neudorf, 76 The Modern Law Review pp. 181–184 (the volume was referred to as “a significant contribution to the comparative literature on judicial independence” and “a tremendous resource for a wide audience of lawyers and scholars.” 15 See Shetreet, “The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges,” 10 U. Chicago J. of International Law 275–332 (2009). 16 Mt. Scopus International Standards of Judicial Independence (Mar 19, 2008), as amended, Appendix I, Part IX of this volume.
Part I: General
Part I focuses on the significance of judicial independence and the integrity of the court. This part contains an analysis of a number of central issues regard- ing judicial independence and accountability. This Part contains chapters by Shimon Shetreet, Christopher Forsyth, and Marcel Storme. Chapter 1, is the general introduction. Chapter 2 by Shimon Shetreet, analyses the significance of judicial indepen- dence for a democratic government, for the maintenance of human rights, for the protection of liberty and for the rule of law. Judicial independence is also vital for the operation of trade and investments on international and domestic levels. The chapter emphasizes the need for promotion of substantive human rights. However they must be coupled with effective machineries of justice that ensure the enforcement of the right, and ensure fairness and procedural rights as vital complementary protection of human rights. The chapter also outlines the ele- ments of culture of judicial independence which are both formal and informal.17 Chapter 3 by Christopher Forsyth, Accountability of Judicial Service Commissions to the Law, outlines the story of Judge Hlophe’s alleged miscon- duct while in his capacity as a judge, and the problems within the Judicial Service Commission’s system that prevented the necessary adequate account- ability. The chapter addresses the issue revolving around institutions set up to address judicial misconduct, particularly the Judicial Service Commission in South Africa. It discusses the importance of accountability in the law and the integrity due by judges. It discusses different standards that should be adopted in order to provide accountability and promote judicial independence in courts. The Judicial Services Commission, which has an unenviable role as the authority, must find that a judge has been guilty of “gross misconduct” before that judge may be removed from office. It 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 points 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. Chapter 4 by Marcel Storme, Reflections on Judicial Independence, explores certain issues regarding independence and impartiality in international courts, as well as the accountability and fairness of judges. The chapter proposes that the jiwp association should embark upon a project to draft a global written Code of Ethical Conduct for judges and also the association devote studies and
17 Cf. Neudorf, book review, 76 Modern Law review 181 9 2013.
Part II: Judicial Independence, Human Rights, Democrarcy, the Rule of Law, and World Peace
This Part contains chapters by Neil Andrews, Maimon Schwarzschild, Shimon Shetreet, and Arianna Vedaschi. Chapter 5 by Neil Andrews, Judging the Independence and Integrity of Foreign Courts, explores the application of judicial independence and the prin- ciple of adjudicative finality in evaluation by English courts of a foreign court’s exercise of jurisdiction. Judicial independence and the principle of adjudicative finality make up the rule of law, which concerns the integrity of courts. The chapter analyses cases in which the English courts face the decision of adopting foreign court decisions on judicial independence, and other related topics. Chapter 6 is written by Maimon Schwartzschild, The Role of the us Supreme Court in the Protection of Religious Liberty: How Much Autonomy Do You Want? It poses the question of how much legal autonomy and exemption from otherwise applicable laws ought to be given to religious groups, given the fact that certain religious communities may not thrive without such provisions. The chapter discusses conflicts that arise between the exercise of religious freedom and other constitutional provisions. The chapter follows the changes in the history of religious constitutional issues and the U.S. Supreme Court’s role in determining the limits of what is permissible. Chapter 7 by Shimon Shetreet, Culture of Peace and Human Rights: The Development of the Human Rights Protection in the European Union, dis- cusses the European Union’s commitment to human rights and how it has strengthened the culture of peace and rule of law. It explores the history of the European Union’s change in focus from the economy based organization to an organization committed to the values of human rights. The chapter presents potential issues the Union faces in the years to come. The chapter also outlines the foundations of culture of peace: political and security peace, economic peace, cultural peace, (maintaining the values of rule of law, human rights, and judicial independence) and religious peace. Chapter 8 by Arianna Vedaschi, The Globalization of Human Rights and Mutual Influence Between Courts: The Innovative Reverse Path of the Right to the Truth, analyses the famous case of El-Masri v. Macedonia, in which the European Court of Human Rights demonstrated its attitudes toward the
Part III: Constitutional Position of Top Courts
This Part contains chapters by Marc Bossuyt, Louis Blom-Cooper, and Giuseppe Ferrari. Chapter 9 by Marc Bossuyt, Independence of the Judiciary in Belgium, explores the recent developments in Belgium that are relevant to the indepen- dence of the judiciary. It discusses the recent attempts of recusal of the highest court judges of the land. It also discusses a recent high-profile case, the Fortis case, which raised doubts about the respect of the government in Belgium for the independence of the judiciary. Chapter 10 by Louis Blom-Cooper, On Fairness, explores the meaning of fair- ness in form, definition, and principle. It provides background as to the “natu- ral justice” spoken of in historical times and continues to discuss cases and legislation that have interpreted the extent of action needed to ensure fairness in reaching legal decisions. Chapter 11 by Giuseppe Franco Ferrari, The Conceptual Definition of the Constitutional Court, explores the genesis of the Italian Constitutional Court, which according to the Italian concept is not part of the judiciary, but an organ of the constitution. The chapter delves into the composition and function of the Court, the decisions made within it, and the effects of the decisions. It also compares the Court with transnational courts in Europe, and provides an over- view of its legitimation.
Part IV: Relations between the Judiciary and the other Branches of Government
This Part contains chapters by Louis Blom-Cooper, Anton Cooray, Fryderyk Zoll, Sergey Nikitin, and Hoong Phun Lee. Chapter 12 by Louis Blom-Cooper, The Scope of Judicial Review, Judicial Activism, and Judicial Restraint, discusses the balance between the distribu- tions of separate powers within the government. Particularly, it focuses on the judicial limits on activism and restraint as defined through the changing times by case law and legislation. It introduces the contemporary debate in the uk
Part V: Impartiality of the Judicial Process
This Part contains chapters by Neil Andrews, Dmitry Magonya, Cyrus Das, and Shimon Shetreet. Chapter 17 by Neil Andrews, Relations Between the Court and the Parties in the Managerial Age, discusses how civil justice is now expected to be a more civilized form of contest, where litigants and their lawyers are expected to avoid opportunistic tactics and instead approach civil proceedings
Part VI: International Courts and Cross Country Issues
This Part contains chapters by Guiguo Wang, Wayne McCormack, Neil Andrews, and Gian Andrea Danuser. Chapter 21 by Guiguo Wang, Judicial Independence in the Context of Inter national Investment Law, discusses the values of judicial independence and its role in regulating judges’ obligations in international issues. It specifically focuses on the international trade and investment world and explores interna- tional cases relating to trade and investment. Chapter 22 by Wayne McCormack, Judicial Impartiality in International Courts: Of Law and Corruption, presents the argument that the promotion of the rule of law requires the abandonment of professional standards by which a judge is assessed according to his performance on the basis of principle above national preference.
Chapter 23 by Neil Andrews, Arbitral Awards and Errors of English Law: Refining the Law-Making Function of the Judicial Appeal System, discusses Section 69 of the Arbitration Act, which confers power to challenge the award before the Commercial Court on the basis of an error of English law. It presents international controversies concerning Section 69 challenges and the section’s workings and provisions. Chapter 24 by Gian Andrea Danuser, The Influence of the European Convention on Human Rights on Judicial Independence in Criminal Procedural Law in Switzerland, discusses changes of Swiss law. It illustrates the interaction of opinions and decisions between the European Court of Human Rights and the Swiss Federal Court over questions of Judicial Independence in the field of criminal procedural law by analyzing judgments by these courts.
Part VII: Judicial Selection
This Part contains chapters by Chandra de Silva, Dmitry Maleshin, Sophie Turenne, Sergey Nikitin, and Liu Hao. Chapter 25, by Chandra de Silva, Recent Developments in Judicial Elections in the United States and their Impact on the Impartiality of Judges, discusses the expectation that judges are to be impartial arbiters of legal disputes. The chapter discusses the link between primaries of judges in judicial impartiality and discuses the societal, personal, and legal constraints that limit the judge’s ability to be as open as the expectation requires regarding his views on adjudi- cating cases. In response to this issue, current safeguards to impartiality are explored as presented in the United States. Chapter 26 by Dmitry Maleshin, Culture and Judicial Independence in Civil Procedure, explores civil procedure and its changes in different parts of the world under the pressures of cultural diversity. It also explores the contraposi- tion of cultural diversity being a source of judicial independence diversity between judicial systems of different countries. Chapter 27 by Sophie Turenne, Constitutional Adjudication and Appoint ments to the uk Supreme Court, discusses the interactions between the consti- tutional role of the uk Supreme Court today and the judicial selection process for appointment to the uk Supreme Court. It concludes with a suggestion that the current process and criteria for appointments ensure the right balance between merit and democratic accountability. Chapter 28 by Sergey Vasil’evich Nikitin, Appointment of Judges and Legal Responsibility of Judges: Guarantees of Independence in Russia, discusses the Russian system that guarantees judicial independence in relation to the legal,
Part VIII: International Standards of Judicial Independence
Chapter 31 by Walter Rechberger deals with the relations of top courts in Austria. It also discusses the concepts of independence and impartiality in the Austrian Civil Procedure. Chapter 32 by Shimon Shetreet, Analysis of Recent Amendments to the Mt. Scopus International Standards of Judicial Independence, analyses the recent amendments to the Mt. Scopus International Standards of Judicial Independence after their adoption in 2008. The amendment passed in 2011 and 2012 include: The relations between top national courts and international and supranational courts, Administrative Adjudicators, Limits on judges’ consulta- tions, expressly provided procedure for selection of Chief Justices, Culture of the judicial independence, and guidelines regarding public inquiries by judges. The chapter also outlines the focus issues for the next conferences of the International Project of Judicial Independence: The Legal profession and judi- cial Independence, The Global Judicial Ethics Code and the Online Justice or the Online Dispute resolution (odr).
Part IX: Text of the International Standards of Judicial Indepence
Appendix I contains the Mt. Scopus International Standards of Judicial Independence (2008) (Consolidated 2013). Appendix II contains the New Delhi Code of Minimum Standards of Judicial Independence (adopted by the IBA New Delhi Convention 1982). Appendix III contains the Montreal Universal Declaration on the Independence of the Justice System (1983).
Shimon Shetreet†
I The Significance of Judicial Independence: In General
Judicial independence is a core value of the justice system. It is essential for democratic government, vital for maintaining human rights, indispensable for the protection of liberty and the rule of law, and it is essential for operating trade, economy, and investments both domestic and international. It is generally accepted that judicial independence is a central foundation for democracy, liberty, and orderly economy. A recent statement of the impor- tance of judicial independence was made in the Mt. Scopus International Standards of Judicial Independence (2008):1
An independent and impartial judiciary is an institution of the highest value in every society and an essential pillar of liberty and the rule of law. The objectives and functions of the judiciary shall include: To resolve disputes and to administer the law impartially between per- sons and between persons and public authorities; To promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and to ensure that all people are able to live securely under the rule of law.2
* This Article is based on The 10th Fiat Justitia Lecture delivered on 11 Feb. 2013 at Monash University Melbourne. I am grateful to the patron the Hon. Michael Black AC, former Chief Justice of the Federal Court of Australia. I am indebted to Dean Brian Horigan and to the conveners Prof. HP Lee, Sir John Latham Professor of Law, and Professor Marilyn Pittard, Professor of Law, all from Monash University Faculty of law. † Shimon Shetreet, LLB, LLM, Hebrew University, MCL, DCL, University of Chicago, holds the Greenblatt Chair of Public and International Law at the Hebrew University of Jerusalem. He is the past chairman of the Sacher Institute of Legislative Research and Comparative Law, author and editor of many books and articles, and president of the International Association of Judicial Independence and World Peace. Email: [email protected]. 1 http://www.jiwp.org/#!mt-scopus-standards/c14de. 2 http://www.jiwp.org/#!mt-scopus-standards/c14de.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_003
There are numerous issues regarding the meaning of judicial independence and the necessary elements for maintaining the independence of the judiciary as a whole and the independence of judges as individuals. In 1985 I stressed the importance of placing equal emphasis on the promo- tion of substantive human rights as well as the institutional framework under- lying the machinery of justice which enforces them; one passage remains particularly noteworthy:3
It is important to emphasize the interdependence between the protec- tion of human rights and the independence of judges and other officers in charge of the administration of justice. In the last 36 years, since the Universal Declaration of Human Rights, the international community has made a giant step towards the crystallization of substantive human rights. They were embodied in numerous international treaties, global and regional, general and specialized. No doubt, the efforts to promote and develop transnational jurispru- dence of substantive human rights must continue with the same vigour and resoluteness. But, an important part of the agenda of the interna- tional community and its human rights agencies must be devoted to ensure effective mechanism of enforcement of human rights both in domestic and international systems of justice. For substantive human rights are worthless without an effective mechanism for their enforce- ment. The enforcement of rights is assured by an independent and impartial tribunal. For substantive human rights enforcement is assured by an independent and impartial tribunal. The establishment of clearly stated international standards on the meaning of judicial independence will enhance the promotion of human rights. The emerging transnational jurisprudence as discussed in…this volume, will no doubt contribute to the furthering of human rights in the years to come.4
It is important to recognize the contribution of international treaties and the international professional and academic standards to the promotion of judicial independence. In the 2010 preface to Judiciaries in Comparative Perspective, Professor H.P. Lee stressed the importance of sharing transnational human experience on the role of judiciaries in society and emphasized that ‘[v]aluable lessons can be learned from the experience of other liberal
3 Shimon Shetreet Introduction in S. Shetreet and J. Deschenes, Editors, Judicial Independence: The Contemporary Debate (Martinus Nijhuff Publishers, 1985). 4 Id.
When we speak of judicial review as a cornerstone of good governance there is a medley of considerations, often conflicting, which need to be
5 HP Lee, Ed., Judiciaries in Comparative Perspective, p. xxxvii, Cambridge University Press (2010). 6 HL Deb vol 576, col 196 WA, 16 Dec 1996. 7 Lord Irvine’s address at the Commonwealth conference of 1998, J. Hatchard and P. Slinn (eds), Parliamentary Supremacy and Judicial Independence: A Commonwealth Approach (London: Cavendish Publishing limited, 1999) 167.
taken into account. The contributions to this volume show the complex- ity of the subject and that both comparative constitutional laws are crucial – though not without a need for caution. Historically the courts and the administrators unquestionably have some important and differing staring points, and the areas of difference might be identified as ‘secrecy or openness in government; a preference for rules rather than a case by case approach; a demand for speed and finality rather than the slowness of adjudication and endless appeals; conflicting views as to relying on expert or informed judgment; and the wider concern that external control through the courts may unduly restrict freedom of executive action.8
The only way in which judges are able to effectuate judicial review over other branches of government in any meaningful way is through the rigid adherence to judicial independence.
II Three Phases of Historical Development in the Principle of Judicial Independence
Both domestic and international law played a significant role in developing the principle of judicial independence. Elsewhere I have suggested that there were three phases of judicial independence, using England as a case study. It is important to note that the interrelationships between domestic law, interna- tional human rights law, and professional international standards have had a normative effect on the culture of judicial independence throughout the three phases of development. It is my view that there has been a cycle of normative and conceptual impact of national law on international law and, subsequently, the impact of interna- tional law on national law. The United Kingdom provides a most instructive illustration of this phenomenon.9 The first phase is characterized by the domestic development of the concept of judicial independence, the second by the seeping of this concept into the international scene, and the third by the re-domestication of newly
8 See Williams, Thems from the Volume, Effective Judicial Review As A Cornerstone for Good Governance, Edited by C. Forsyth and others 423 at p. 428 (2010). 9 Shetreet, The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges, 10 Chicago Journal of International Law, p. 273 (2009).
reformulated international principles of judicial independence, with signifi- cant and dramatic results. The first phase occurred in England with the original conception of judicial independence in the Act of Settlement in 1701. The second phase was evident when England’s concepts regarding judicial independence first entered the international scene and from there moved into the domestic arenas of other countries. For instance, England served as the theoretical model for Montesquieu’s separation-of-powers doctrine. Also, the Founding Fathers of the United States Constitution used England as their dominant model in for- mulating the Constitution’s Article III, which is the foundation of American judicial independence. They added to the constitutional provision of Article III a compensation clause to protect the judges from diminution of their remuneration during their term of office.10 Other common law countries, including Canada, Australia, and India, also adopted the British model of judi- cial independence. Lastly, in recent decades the third phase of judicial independence has come into play in the United Kingdom, as the country has been significantly influ- enced by judicial independence principles developed by international human rights constitutional documents. I refer to the significant impact of the juris- prudence of the European Court of Human Rights (‘ECtHR’) on the conceptual analysis of judicial independence in England and Scotland. This process began in the 1990s with cases heard by the ECtHR before the United Kingdom had adopted the Human Rights Act. Later, this process found dramatic expression in the application of the European Convention of Human Rights (echr) in the United Kingdom Human Rights Act 1998, which came into force in 2000. Whereas British national law had previously impacted the national law of other countries concerning the international law of judicial independence, the Human Rights Act 1998 and the British Constitutional Reform Act of 2005 sig- nalled a shift, international law was now impacting British domestic law. The Constitutional Reform Act dramatically reformed government control over the administration of justice in England and Wales; importantly, it discontinued the exceptional position of the Lord Chancellor, one of the country’s oldest constitutional offices, who was entrusted with a combination of legislative, executive, and judicial capacities. The Lord Chancellor served as speaker of the Upper House of Parliament, the House of Lords, as a member of the executive branch and member of the senior cabinet, and as the head of the judiciary. The Constitutional Reform Act established new lines of demarcation between
10 Jonatan L. Entin, Getting What You Pay For: Judicial Compensation And Judicial Independence, Utah Law Review, 2011, p. 25.
III The Five Foundations of a Culture of Judicial Independence
It is important that the judiciary operate in an environment that I define as the culture of judicial independence.12 The culture of judicial independence requires five foundations which must be carefully considered and built by the legal and professional elite and by the political leadership. A recently published volume offers a detailed analysis of the ideas of culture of judicial independence. The volume is a result of the ongoing International Project of Judicial Independence and the series of international conferences conducted by the International Association of Judicial Independence and World Peace. The book, edited by Professor Christopher Forsyth and myself, contains contributions by distinguished scholars who consistently take part in the project. Among others they include: Tassaduq Jillani (Pakistan), Neil Andrews (Cambridge), H.P. Lee (from Moanash University), Marcel Storme (Ghent), Anton Cooray (City University of Hong Kong), Markus Bechel (Liechtenshtein), Hiram Chodosh (Utah Law school), Louis Blom Cooper (United Kingdom), Cy Das (Malaysia), Wayne McCormack (Utah), and Walter
11 For analysis of the United Kingdom see Neil Andrews, The United Kingdom’s Supreme Court: Three Sceptical Reflections Concerning the New Court, Utah Law Review, Volume 2011, Number 1, p. 9. 12 See Shetreet, Creating A Culture of Judicial Independence, in Shetreet and Forsyth, Eds. of Judicial Independence: Conceptual Foundations and Practical Challenge, p. 17 ff. (Martinus Nijhoff 2012).
Rechberger (University of Vienna). These contributions are in addition to the chapters written by editors Christopher Forsyth and Shimon Shetreet. The culture of judicial independence is created on five essential pillars: creating institutional structure, establishing constitutional infrastructures, introducing legislative provisions and constitutional safeguards, formulating adjudicative arrangements and jurisprudence, and maintaining ethical tradi- tions and codes of judicial conduct. The culture of judicial independence in every jurisdiction is based on a number of levels: the institutional level, which regulates the matters relative to status of the judges and jurisdiction of the courts, and the constitutional level, which embodies in a constitution the institutional aspects and insures that the independence of the judiciary shall not be adversely affected by legislation or by executive action. An additional level, the legislative level, which regulates in detail the constitutional principles, and lastly the adjudicative level, which is the jurisprudence of the courts, provides for interpretation and additional ele- ments in all the levels. From the review of the court decisions on the matter of judicial independence, it is possible to conclude the substantive elements that each country is providing for the rules to create culture of judicial indepen- dence and maintaining this culture. The emphasis on fostering a culture of judicial independence was recog- nized by the added paragraph 1.4 to the Mt. Scopus International Standards of Judicial Independence approved in the Ghent Conference of the JIWP Association conference in October 2012. This paragraph reads:
Every society and all international bodies, tribunals and courts shall endeavour to build and maintain a culture of judicial independence that is essential for democracy, liberty, rule of law and human rights in domes- tic system of government and is a necessary foundation for world peace, orderly world trade, globalized markets and beneficial international investments. 1.4.1 The culture of judicial independence is created on five impor- tant and essential aspects: creating institutional structure, establishing constitutional infrastructures, introducing legislative provisions and con- stitutional safeguards, creating adjudicative arrangements and jurispru- dence, and maintaining ethical traditions and code of judicial conduct.13
Sections 1.4.2 through Section 1.4.6 give further details on the five foundations of a culture of judicial independence.
13 See http://www.jiwp.org/#!mt-scopus-standards/c14de.
It must be emphasized that the culture of judicial independence is built both on formal and informal rules and traditions. International law plays a sig- nificant role in creating the culture of judicial independence in domestic law. The case of England illustrates very clearly 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 United States Constitution and other legal cultures in developing judicial independence. I have elsewhere referred to this process as the normative cycle of interna- tional and national law in the area of judicial independence.14 International law influences domestic law by virtue of international human rights treaties that 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 that non-governmental and academic study groups have developed. A recent example includes the Mt. Scopus International Standards on Judicial Independence (‘Mt. Scopus Standards’) of the JIWP Association.15 The principle of judicial independence is a core value of the justice system in a liberal democracy.16 Judicial independence is one of the fundamental val- ues of the administration of justice. These values also include procedural fair- ness, efficiency, accessibility, and public confidence in the courts. In addition, there is a requirement that the fundamental values, including judicial inde- pendence should be protected by constitutional provisions, not only by legisla- tive provisions.17 The culture of judicial independence can only exist in a system based on separation of powers. After such is established, the constitution 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 varying internal developments. Those who are responsible for formulating and creating the culture of judi- cial independence are the political leaders, who are also responsible for pre- serving the culture after it is shaped. The role of the judges is expressed in adjudication, in court decisions, and in laying down appropriate ethical rules while making judicial selections and appointments. Sometimes, judges are
14 See Shetreet, supra note 9. 15 Mt. Scopus International Standards of Judicial Independence (Mar 19, 2008). 16 Shetreet, Core Value of judicial independence and Accountability in, HP Lee, Ed., Comparative Judiciaries ch 3 (2010). 17 Neil Andrews, A Fresh Start: The Four Pillars of Civil Justice In culture of judicial indepen- dence in Shetreet and Forsyth, supra note 12, ch. 5.
18 American Bar Association 1924 Cannons of Ethics – accessed at www.americanbar.org/ content/dam/aba/migrated/cpr/pic/1924_canons.authcheckdam.pdf. 19 See the Model Code of Judicial Conduct 2011 – accessed at www.americanbar.org/ content/dam/aba/administrative/professional_responsibility/2011_mcjc_table_of_con tents.authcheckdam.pdf. 20 See the Code of Conduct for US Judges 1973, as amended – accessed at www.uscourts.gov/ Viewer.aspx?doc=/uscourts/RulesAndPolicies/conduct/Vol02A-Ch02.pdf. 21 See the California Cannons of Ethics 2003 – accessed at www.courts.ca.gov/documents/ ca_code_judicial_ethics.pdf, as well as the Texas Code of Conduct – Accessed at www .legalethicstexas.com/Ethics-Resources/Rules/Texas-Code-of-Judicial-Conduct.aspx. 22 Canadian Judicial Council, Ethical Principles for Judges (1998) – accessed at www .cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf. 23 Council of Chief Justices of Australia, Guide to Judicial Conduct (2002) – accessed at www.aija.org.au/online/GuidetoJudicialConduct.pdf. For the practice in Australia see Mr Justice Thomas’ study, Judicial Ethics in Australia (2nd ed., 1997).
Wales, and applies to the English judiciary.24 A year later, in 2009, the United Kingdom Supreme Court adopted a Guide to Judicial Conduct.25 The Guide of Judicial Conduct in the United Kingdom and the other codes of judicial ethics have normative, not merely persuasive, value based on the fact that many of the provisions in the Guide are declaratory of already existing law, such as the law of bias,26 the rules are declarative of longstanding and established prac- tices of judicial conduct that may not be breached regardless. Also the obliga- tion to follow the Guide derives from the duties of the judicial oath.27
IV Constitutional Protection of the Judiciary: The Significance of Providing the Highest Normative Safeguards
In the normative analysis of the regulation of judicial issues, it must be recog- nized that certain matters should be regulated in the constitution whereas others should be regulated by ordinary legislation. When a matter is regulated by ordinary legislation, the legislature can effect an amendment by simple majority. In contrast, protection granted by the constitution is modifiable only by constitutional amendment. Therefore, in order to better guard judicial independence and other fundamental values of the justice system, issues such as the terms of office for judges should be protected in constitutional provisions.28
24 See the Guide to Judicial Conduct (for General Courts) – accessed at www.judiciary.gov .uk/Resources/JCO/Documents/Guidance/guide-judicial-conduct-aug2011.pdf. 25 See the Guide to Judicial Conduct 2009 (UK Supreme Court) – accessed at www.supreme court.gov.uk/docs/guide_to_judicial_conduct.pdf. 26 For reliance on the existing law, please see Paragraph 3.7 of the UK Supreme Court Guide to Judicial Conduct. Recent United Kingdom cases include Porter v Magill [2002] 2 AC 357, Locobail (UK) Ltd v Bayfield Properties Ltd [2002] QB 451, Re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR 700 and Helow v Secretary of State for the Home Department [2008] 1 WLR 2416., R. v. Bow “Street Metropolitan Stipendiary Magistrate and others” ex parte Pinochet Ugarte (No. 2), House of Lords, [1999] 1 All ER 577, [1999] 2 WLR 272. see also S. Shetreet, Standards of Conduct of International Judges: Outside Activities, 2 The Law and Practice of International Courts and Tribunals 127 (2003). 27 The reference to the judicial oath is found in Chapter 1 of Australia’s Guide to Judicial Conduct, Paragraph 1.1; in Paragraph 2.2 of the UK Supreme Court Guide to Judicial Conduct; in the Guide to Judicial Conduct, England Judges’ Council, Forward and Paragraphs 2.2 and 2.3. 28 Shetreet, Judicial Independence: New Conceptual Dimensions and Contemporary Challenges, in Shetreet and Deschenes, Judicial Independence: the Contemporary Debate pp. 590–681, (1985).
For example, the composition of the Supreme Court of the United States – how many judges sit in the court – is not constitutionally regulated and there- fore the number of sitting judges has been changed by legislation.29 Amidst controversy over New Deal legislation, then President Franklin Roosevelt attempted to pack the court – increasing the number of judges – through ordi- nary legislation.30 As to the constitutional level of regulation of matters of the judiciary in Australia it has been suggested by Professor Mathew Groves and Professor H.P. Lee31 that Section 75(v) of the Australian Commonwealth Constitution entrenches separation of powers and the courts power of judicial review. Elsewhere I have identified six principles that should be defined as essential constitutional infrastructure for the protection of judicial independence. The first principle of constitutional protection of judicial independence is the rule against ad hoc tribunals. The second is a prohibition against intentionally stripping courts of their jurisdiction and diverting cases to other tribunals with a view to having those cases disposed of by tribunals that do not enjoy the same conditions of independence as the original courts. The third is the standard-judge principle, or the ordinary-judge principle, which requires that judges be selected to hear cases by a predetermined internal plan or assign- ment schedule prior to the commencement of the case. The fourth principle requires post-decisional independence of the judgment and its respect by the other branches of the government. The fifth principle is that judges must not be part of the administrative arm of the executive branch; rather, they should be viewed as independent constitutional or statutory officers of the state, and completely separate from the civil service. The sixth principle is that changes in the terms of judicial office should not be applied to present judges unless such changes serve to improve the terms of judicial service,32 or if the matters
29 The Judiciary Act 1789 initially sets the number of Supreme Court judges at six. In later years, the number was increased and decreased until it was finally settled at nine. 30 See, for example, United States v Will 449 US 200 (1980); Chandler 398 US 74; J L Carson and BA Kleinerman, A Switch in Time Saves Nine: Institutions, Strategic Actors, and FDR’s Court-Packing Plan (Netherlands: Kluwer Publishers, 2002) 113 Pub Choice 301; M Nelson, ‘The President and the Court: Reinterpreting the Court-Packing Episode of 1937’ (USA: The Academy of Political Science publishers, 1988)103 Political Science Quarterly 267; GA Caldeira, ‘Public Opinion and The US Supreme Court: FDR’s Court-Packing Plan’ (1987) 81 American Political Science Review 1139. 31 Matthew Groves and HP Lee, The Australian Administrative Law: Fundamental, Principles and Doctrines (2007). 32 For a detailed analysis of Shetreet’s six constitutional principles for protecting judicial independence, see S Shetreet, ‘The Normative Cycle of Shaping Judicial Independence
V Contemporary and Historical Challenges of Judicial Independence; Conducting Mutually Respectful Dialogue with Other Branches of the Government
It must be recognized that the judiciary developed from a dispute-resolution mechanism to a significant social institution with an important constitu tional role which participates with other institutions in shaping the life of its community. In the analysis of the relations between the judiciary and other branches of government, a number of topics should be recognized. The legislature should refrain from retroactive reversal of judicial decisions by legislation, or the introduction of delegated legislation by the executive in matters pending before the court. Also attention should be given to the preferred model of the proper relationship between the judiciary and the other branches of the government. Careful analysis demonstrates the need to develop principles for fine-tuning the judicial role in society. This process of fine-tuning should demarcate the proper boundaries between the judiciary and the other branches of government. Important rules for this process are the doctrine of justiciability and the right of standing. A complimentary test for fine-tuning the judicial function is the test of avoiding substantial interruption of the proper boundaries between judicial func- tions 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 interruption of relations between the branches of government. In recent decades there has been a substantial increase in the judicial role in society. With the increase in judicial role and greater judicial activism one can notice increased pressure on the political branches of government vis-à-vis the judiciary. What is needed is a dialogue between the judiciary and the other branches as well as mutual respect between the branches of government. Also called for is the fine-tuning of demarcation lines of power between the
in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges’ 10 Chicago Journal of International Law 275–332 (2009). 33 Compare Mt. Scopus Standards on protection against salary reductions, Articles 2.20, 2.22 see shetreet and forsyth, supra note 13, at 504.
VI The Challenge of Wider Scope of Judicial Review of Counterterrorism and Security Decisions
The wider scope of judicial review of security decisions of the executive and the legislative branches both in constitutional adjudication and in administra- tive judicial review has often created tension between the judiciary and other
34 Simon Shetreet, Models of Constitutional Adjudication: A Comparative Analysis, In Ada Pellegrini Grinovner and Petronio Calmon, Editors, Papers presented at the XII Congress Of Procedural Law, 769–798 (Gen, Editora Forensa Rio de Janeiro, 2007). 35 See Russel and O’Brien, Eds, Judicial Independence in the Age of Democracy, chapter 1 p. 3. 36 See Russel and O’Brien, Id. p. 1–2.
In the second part of the last decade a change in judicial policy has been noticeable at different points of time in different countries. The change wit- nessed the policy of judicial restraint in matters of counterterrorism transform into a more activist judicial policy willing to set aside legislation and executive measures. In the United States this line is reflected in the cases dealing with unlawful alien combatants, their adjudication before military commissions, and their detention in Guantanamo Bay. The case of Bomedienne in the United States Supreme Court illustrates this point well.37 The case of Binyum Muhamed in the United Kingdom Court of Appeals is in line with the activist approach in matters of security and counterterrorism. Also illustrative of this approach are cases adjudicated by the German Federal Constitutional Court and the Polish Constitutional Tribunal declaring unconstitutional an act authorizing the gov- ernment to shoot down a hijacked plane. All these cases were handed down in the second part of this decade. In Rasul, the United States Supreme Court held that the detainees, who were detained as enemy combatants at Guantanamo were entitled to seek habeas corpus38 and that the United States court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned.39 In the case of Charkaui, Canada’s Supreme Court struck down an anti-terror law aimed at allowing detaining foreign suspects indefinitely without trial or filing charges on the basis of secret evidence, while orders to deport them were reviewed.40 Chief Justice Beverley McLachlin wrote: ‘The overarching princi- ple of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process’. In 2002, Khader, a minor of Canadian citizenship, was arrested in Afghanistan by American forces. He was taken to Guantanamo, where he was held until 2004 without being given the right to contact people outside of the detention facility. In January 2010, the Supreme Court of Canada ruled that Khader’s rights had been violated.41 In the WikiLeaks case, security officers expressed
37 Boumediene v. Bush, 553 U.S. 723 (2008). 38 Id. 39 Rasul v. Bush. 542 U.S. 466 (2004; On other cases dealing with detention of alien unlawful combatants see Hamdi v. Rumsfeld, 542 U.S. 507 (2004) at 518, Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2793 (2006). K. Flanagan-Hyde, The Public’s Right of Access to the Military Tribunals and Trials of Enemy Combatants, 48 Ariz. L. Rev. 585 (fall, 2006). 40 Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9. 41 Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44.
42 http://www.cbc.ca/canada/story/2010/11/29/wikileaks-canada-csis-judd-cable.html. 43 A and others v Secretary of State for the Home Department (House of Lords) [2004] UKHL 56. http://www.hmso.gov.uk/acts/acts1998/19980042.htm. 44 For series of judgments on the case see: EWCA Civ 65 R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] All ER (D) 118 (Feb); EWHC 3316 (Admin) R (on the application of Aamer) v Secretary of State for Foreign and Commonwealth Affairs [2009] All ER (D) 138 (Dec); EWCA Civ. 158 R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs. also see:http:// news.blogs.cnn.com/2010/11/16/britain-will-compensate-guantanamo-detainees/. 45 For Example, in H.C. 7/48 Al Karbuteli v. Minister of Defense 2 P.D. 5, The High Court invali- dated an order for administrative detention because an advisory board had not been set up as required under the relevant statutory provision. 46 H.C. 680/88 Schnitzer v. Chief Military Censor 42(4) P.D. 617 see particularly p. 639. 47 HCJ 769/02 the public committee against torture v. The Government of Israel. 48 DNP 7048/97 Plonim v. Minister of Defense 54 (1) P.D 721. 49 H.C. 5100/94 Public committee against torture in Israel v. State of Israel 53(4) P.D. 617.
VII Defining the Role of Constitutional Tribunals in a Democratic Society
Significant development took place regarding the judiciary in different parts of the globe. In the post-World War II era, Europe saw the emergence of an inde- pendent judiciary in post-Facist Italy, Germany, and later Spain and Portugal. In all these jurisdictions the establishment of centralized constitutional courts introduced a culture of constitutional judicial review of statutes. The adoption of judicial constitutional review by a specialized high consti- tutional court or tribunal distinguishes Italy, Germany, Spain, and Portugal. However, another trend was dominating the judicial constitutional scene. Judges of the constitutional court were being elected by the political branches, unlike the regular judiciary, which utilizes a career judiciary. Sometimes the
50 HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel PD 59(5) 807(2004). 51 Roy Stephen Brown, ‘Shooting Down Civilian Aircraft: Illegal, Immoral and Just Plane Stupid’ (2007) 20 Revue québécoise de droit international 57. The decision in UK and in other countries will not follow the German lime: Council of Civil Service Unions v Minister of State for Civil Service (Government Communications Headquarters) [1985] AC 374. See also UK Ministry of Justice, Review of the Executive Royal Prerogative Powers: Final Report (October 2009) available online at
52 ARTICLE 56(1) of the French Constitution. 53 See President Marc Bossuyt, The Independence of the Judiciary in Belgium, Ch. 9 of this volume. 54 See Id.
55 157/2009 of 13 October 2009. 56 In its most recent judgment in October 2011 (155/2011 of 13 October 2011.) in this matter, the Court rejects the request of recusal of a judge based on the existence of his links with the lawyers of parties before the Court in the framework of his academic activities, the Court recalls that judges may be authorized to exercise an academic activity and that the academic freedom, which occupies a prominent place at university and is an aspect of the freedom of expression, requires ample freedom to express their opinion. Relations of an academic nature with colleagues in a university which are lawyers of one or more parties before the Court are not sufficient to provide an objective justification for the concerns expressed by the application. See President Marc Bossuyt The Independence of the Judiciary in Belgium, keynote lecture at the 9th International Conference on Judicial Independence, Ghent, 18 October 2012, ch. 9 this volume. 57 See articles 56 to 61–1 of the French constitution of 1958 as amended see Article 46 of the Constitutional Act no. 2008-724 of July 23, 2008.
VIII The Continuous Struggle for Protecting Judicial Independence
The independence of the judiciary is not attained in a one-time action. It is a continuous and dynamic process that struggles to protect and maintain the individual and institutional position of the judges in the face of challenges presented by ever changing events and developments. A quick journey around the world shows that the judiciary has faced challenges in many jurisdictions. These jurisdictions include countries with long traditions of judicial indepen- dence such as Australia and the United States as well as countries with more recent transitional periods such as Russia, Bulgaria, and South Africa. Taking Australia as the first point of our journey it has been suggested by Professor John M. Williams writing in 2001 that the Australian reaction to a more activist and politically prominent High Court also highlights the attempts to reverse High Court decisions recognizing the rights of Australia’s indigenous peoples.60 Though this has increased public discussion of the kind of judicial appointments commission under consideration in the United Kingdom which was in fact introduced in 2005, no Australian government has shown any
58 federal of office of term the for limitation time of absence the regarding criticism the for reason the is This justices. See Judith Resnik, ‘Judicial Selection and Democratic Theory: Demand, Supply and Life-Tenure’, 26 Cardozo Law Review, 579 (2005) Stras, David R. and Scott, Ryan W., ‘Retaining Life Tenure: The Case for a Golden Parachute’. Washington University Law Quarterly, Vol. 83, 2006. 59 S. Shetreet and J Deschenes, Judicial Independence: The Contemporary Debate (1985): John Bell, Judiciaries Within Europe: A Comparative Review (Cambridge 2006). 60 See Williams, Judicial independence in Australia, in Russell and O’brien, supra note 35, at P. 173.
serious interest in such a reform. Professor Williams noted that senior Australian judges, in a country remarkably ill-prepared for the age of judicial activism, by issuing their own declaration on the principles of judicial inde- pendence, give the sense of being a judiciary virtually under a state of siege. In Australia the Minister of Justice or his equivalent, is responsible for administrative personnel, but in all matters pertaining to the business of the court, they are responsible to the Chief Justice. Court buildings are the respon- sibility of the Minister and the Department is responsible for public buildings. The exception is the High Court of Australia, which is solely responsible for its own administrative personnel and buildings. Section 72(iii) of the Australian Constitution provides that the justices of the High Court and of the other courts created by the parliament ‘…shall receive such remuneration as the parliament may fix; but the remuneration shall not be diminished during their continuance.’ As the Hon. Justice M.D. Kirby recorded in 1985,61 in 1981 the Prime Minister requested the justices of the High Court of Australia to agree to accept a reduction in their salaries because of the economic situation at the time. The justices refused, although they made separate individual arrangements.62 Concerns about the pressures from other branches on the judiciary were voiced by judges in Australia.63 The authors Enid Campbell and H.P. Lee quoted Justice Hope and Justice Kirby sounding concerns.64 Importantly, these authors noted: ‘There is a growing concern over what some perceive to be attempts by the other organs of government to erode the standing and the independence of the judicial institutions’.65 A strong commitment to judicial independence has been built into South Africa’s new democratic constitution. The constitution provides for a judicial system that combines a European-style constitutional court with the English
61 Kirby, Australia in Shetreet and Deschenes, Judicial independence supra note 5, at 8. 62 J. Bennet, Keystone of the Federal Arch (History of the High Court of Australia), Canberra, A.G.P.S., 1980, 46. 63 H.P. Groves and Professor Mathew Lee, Australian Administrative Law: Fundamentals, Principles and Doctrines (2007). 64 Quoting Justice RM Hope’s Statement on his retirement from the Court of Appeal in New South wales in 1990 from the court; Challenges to, indeed attacks upon the integrity, and at times the independence, of judges have increased significantly in the last ten years Campbell and Lee, The Australian judiciary, p. 1 (2001 Cambridge U Press). 65 Enid Campbell and HP Lee, The Australian Judiciary, (2nd ed. 2012). In a paper I published in 1986 I was critical of the New South Wales Judicial Officers Act. See The Limits of Judicial Accountability: A Hard Look at the Judicial Officers Act, 1986, 10 New South Wales Law Journal 4–16, (1987).
7.12. Except in cases of legitimate consultations a Judge shall not approach other judges not sitting with him on the same panel on pending cases.
There are direct attacks on courts following court decisions. This is illustrated by events in Bulgaria and Russia. The ruling majority in Bulgaria responded to a Constitutional Court ruling against the Communist Party by cutting the court’s budget. This created a situation where bad remuneration, combined with poor working conditions, make it difficult to attract well qualified candi- dates to judicial service.68
66 Hugh Corder, Seeking Social Justice? Judicial Independence and responsiveness in a Changing South Africa in Peter H. Russell and David M. O’brien editors, Judicial Independence In the Age of Democracy: Critical Perspectives From Around the World, pages 201–203 (University Press of Virginia, 2001). 67 C Forsyth, The Failure of Institutions: The South African Judicial Service Commission and the Hlophe Saga in Shetreet and Forsyth, Culture of Judicial Independence, ch. 3 (2012). see also ch. 2 This Volume. 68 A.E. Dick Howard, Judicial Independence in Post-Communist Central and Eastern Europe, in Peter H. Russell and David M. O’brien editors, Judicial Independence In the Age of Democracy: Critical Perspectives From Around the World, pages 95, 97 (University Press of Virginia, 2001).
Russia provides a salient example of a system that has challenged the con- cept of judicial independence. The greatest challenge to Russian judicial inde- pendence is the close relationship between the executive branch and the judiciary,69 resulting in a lack of sufficient judicial independence. This chal- lenge can be seen by subjective case assignments and reassignments, and the pressures exerted on judges by both the executive branch and higher ranking judges.70 One such example of an interference with judicial independence in Russia can be seen in the Zorkin-Yeltsin affair. After the collapse of the Soviet Union, Chief Justice Valery Zorkin led the constitutional court in several cases involv- ing the Post-Soviet era political transition. These cases were controversial, and included both an invalidation of President Yeltsin’s decrees and a finding that Yeltsin’s actions were unconstitutional. In response to these and other deci- sions, Yeltsin shut down the constitutional court. However, the court’s perspec- tive was notably different after reopening; it began to regularly agree with government actions.71 Justice Kirby’s 1985 report contained strong criticism of Australia’s Chief Justice in 1975.72 Even in the United States there have been challenges to judi- cial independence. The assaults on the court from congress have spanned throughout history. The strongest, and maybe most known, is the Roosevelt ‘Court Packing Plan’.73 President Roosevelt saw his New Deal Legislative plan
69 Jackson Dihel. In Russia ‘Legal Nihilism as Usual’ Wash Post A17 (July 28, 2008); Peter H. Solomon and Todd S. Fogelsong, Courts in Transition in Russia: The Challenge of Judicial Reform 47–49 (westview 2000). 70 Fuhrmann and Bowring, Diagnostic View of the Court System in Russia at 5. 71 Another case that demonstrates judicial independence problems in Russia can be viewed in the case Kuesinka v. Russia, App No 29492/05nEur Ct HR (2005). For further details see Shimon Shetreet The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges. 10 Chicago Journal of International Law, p. 273 (2009). 72 ‘Criticism of the former Chief Justice of Australia, by successive leaders and members of the Australian Labour Party, followed his decision to tender advice to the Governor – General immediately prior to the dissolution of the Commonwealth Parliament in November 1975. This criticism has been frequent, bitter and widely published, both in parliament and outside. However, there is a probably a distinction in the public mind between the conduct of the Chief Justice as a judicial officer and his conduct in tendering advice to the Chief Exceutive’. Michael Kirby, Australia, in Shimon Shetreet and Jules Deschenes, Judicial independence: The Contemporary Debate, 8 at 15 (1985). 73 See William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford Univ. Press, 1995).
74 West Coast Hote v. Parriash, 300 U.S 379 (1937). 75 For details see Henry J. Abraham The Pillars and Politics of Judicial Independence in the United States, in Peter H. Russell and David M. O’Brien, editors Judicial Independence In the Age of Democracy: Critical Perspectives From Around the World (University Press of Virginia, 2001) pages 32–33.
IX Maintaining Proper Balance between Independence and Accountability
The importance of an independent judiciary is reflected in the legitimate expectations of a democratic society that effective judicial remedies will be available both in private law disputes as well as in public interest questions. The business community and private individuals look to the court for effective remedies in private law disputes. Society also expects to have effective judicial review of government decisions (i.e. administrative law review). As suggested by the late Sir David Williams, judicial independence is, of course, an accepted and even expected idea. But the continuing academic dis- course and legal controversy refer to the difficulties. Sir David mentioned that the entire issue of the Journal of the American Academy of Arts and Sciences for Fall 2008 was devoted to judicial independence, and the opening contribu- tion asks why and from what. The writer, Linda Greenhouse, emphasizes the question ‘from what’. We expect the judges to be protected from overt political pressure and retaliatory dismissal. But judges are also expected to be account- able and to be restricted by certain duties and responsibilities. Judges are expected to be guided by precedent. Judges are subject to the obligation of respecting the roles of the co-equal branches of government, and they owe a duty to keep the norm of impartiality.77 Lord Brown analysed the so called unaccountability of United Kingdom judges, due to the fact that superior judges may by law and practice be removed only upon an address of both Houses of Parliament.78 Lord Brown does not see this as a lack of democratic legitimacy. Rather, Lord Brown sees the protected
76 Jonathan L. Entin, Getting What You Pay For: Judicial Compensation and Judicial Independence, 2011 Utah Law Review 25. 77 See the papers in the same issue by former Justice Sandra Day O’Connor and by Justice Stephen Breyer. Stephen Burbank of the University of Pennsylvania Law School asserted in another paper in that issue that judicial independence ‘is merely the other side of the coin from judicial accountability’, but he added that judicial accountability should be owed in part to the people’s representatives ‘who appropriate the funds for the judiciary and whose laws the courts interpret and apply’. The papers are available at http://www .amacad.org/content/publications/publication.aspx?d=803. 78 C. Forsyth et al, Effective Judicial Review as a Cornerstone of Good Governance (2010), p. 208.
While judges and the judicial system must be sufficiently robust to be subject to informed criticism, the attrition of continual uninformed and unjustified criticism can cause great harm to the system itself.
In recent times, Lord Chancellors frequently emphasized the importance of judicial independence.80 It is noteworthy that in 1973 Tony Jolowicz rightly emphasized the principle of judicial independence stating that: ‘Without a judiciary which can and will administer law fairly and fearlessly between the parties, no other guarantee given to the litigants by the law is likely to be of value’.81 In addition to Section 3 of the Constitutional Reform Act 2005 which is
79 For an Analysis see Shetreet and Turenne, Judges on Trial: Independence and Accountability of the English Judiciary, ch. 1 (Second ed. 2013). 80 See, Lord Mckay LC (HL Deb vol 576, col 196 WA, 16 Dec 1996), and Lord Irvine LC printed in J Hatchard and P Slinn (eds), Parliamentary Supremacy and Judicial Independence: A Commonwealth Approach (London: Cavendish Publishing limited, 1999) 167. 81 JA Jolowicz in M Cappelletti and D Tallon (eds), Fundamental Guarantees of the Parties in Civil Litigation (Milano, 1973), 121.
X Maintaining Balance between Basic Values of the Justice System: Containing the Pressure for Undue Emphasis on Efficiency (‘Money for Value’)
The proper administration of justice is dependent upon the adherence to cer- tain fundamental values that lie at the foundations of most judicial systems. These values include: procedural fairness, efficiency, accessibility, public confi- dence 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 fulfil their main function, which is the resolution of disputes.82 These fundamental values are interrelated. Sometimes they strengthen one another, being one the result of, or the condition to, the existence or the appli- cation of the other, while at other times there may be a tension between them. A proper legal system is one that advances each of these values on its own, and achieves a suitable balance between them whenever they conflict. The recent decades saw prevailing emphasis on efficiency considerations at the expense of the other basic values.83
XI Self-Governance of the Judiciary: Greater Administrative Independence to Protect Institutional Independence
In 1985, I referred to the situation that
The centralization of the responsibility and supervision of court admin- istration has raised the issue of the relationship between the judiciary and the executive, and made it necessary to examine and delineate the boundaries of the scope of executive control on judges, courts and
82 Shetreet Fundamental Values of the Justice System, 23 The European Business Law Review 61–76 (2012). 83 Shetreet, The Administration of Justice: Practical Problems, Value Conflicts and. Changing Concepts, 13 UNIVERSITY OF BRITISH COLUMBIA LAW REVIEW, pp. 52–80 (1979).
judicial administration, and court financing. It was also necessary to review the rules, traditions, and practices governing the conduct of judges off the bench, in the various areas of activities.84
In view of this I suggested that:
A modern conception of judicial independence cannot be confined to the individual judge and to his substantive and personal indepen- dence, but must include collective independence of the judiciary as a whole. The concept of collective judicial independence may require a greater measure of judicial participation in the central adminis tration of the courts including the preparation of budgets for the courts, and depending on ones view of the nature of judicial indepen- dence, the extent of judicial participation may range from consulta- tion, joint responsibility with the executive, or exclusive judicial responsibility.85
The culture of judicial independence in each jurisdiction must facilitate and ensure judicial independence in the substantive adjudication. This is true both in public and constitutional law, as well as in the private law in all its aspects and branches. In addition, the culture of judicial independence must ensure institutional and administrative functioning of the judiciary as an institution as well as the substantive judicial decision-making and administrative func- tioning of the individual judges. The process of building self-judicial governance is long and gradual. This process may make significant changes in the judicial branch and might demand changes and cooperation of the other branches of government. The develop- ment of self-judicial governance in the United States federal judiciary is a good example of this gradual process for building a culture of judicial indepen- dence.86 It took one hundred and forty years for the United States federal judi- ciary to go from being under total control of the executive to attaining a level of self-judicial governance.
84 Shetreet, The emerging Transnational Jurisprudence on Judicial Indepndence, Shetreet and Deschenes, supra note 59, ch 33, at p. 393(1985). 85 Id. 86 For a detailed description of this process, see: Markus Zimmer, ‘Judicial Independence in Central and East Europe: The Institutional Context’ (2006–2007) 14 Tulsa. J. Comp. & Int’l L 53–87, at pp. 62–69.
In the beginning of the process, the administration of the federal judiciary and the courts was governed by the Treasury Department.87 Later, in 1849, governance over the judicial branch was entrusted to the Department of the Interior.88 In the next stage, in 1870, governance was transferred to the Department of Justice.89 Seventy years later, in 1939, responsibility for the administration of courts and judges was transferred from the executive to the judicial branch.90 A few years later, in 1948, the judicial conference of the United States was established.91 The process of building self-judicial governance has to be gradual, as it requires a long process of education, both on the professional and political level. Self-judicial governance means control over the judicial system by the judiciary. This control includes budgeting, financial managing, managing human resources, and management of a large system. It also includes the professional management, such as managing case assignments, engaging in rulemaking regarding procedures of the courts, and enforcing these proce- dural rules. Likewise, judicial self-governance includes the development and enforcement of judicial ethics and the code of conduct. In order for the judiciary to engage in self-governance, it should have a wide diversity of abilities. Administrative abilities are required for managing the system of justice. Self-governance also requires the judiciary to act in coordination with the other branches of government though. In addition to these abili- ties, self-judicial governance requires a judiciary with financial qualifica- tions. Another area of responsibility in the administration of courts is security and safety. One of the central issues in which conflict arises between the judicial and executive branch is the responsibility for the courts’ administration. In this matter, a number of central points should be noted. An important principle is that the executive should not have control of judicial functions or matters regarding the judicial process, such as case assignment, scheduling of trials, judges vacations, and the determination of specific judges’ salaries. Whereas the executive cannot have control of matters at the court level, it may have control of the central level and powers over court administration. This includes budgeting, housing of courts, and the like. The control exerted by the executive at the central level of court administration and judicial matters must be
87 See: Act of Mar. 3, 1849, ch. 98, 9 Stat. 395 (1849) 88 Ibid. 89 See: Act of June 22, 1870, ch. 150, 16 Stat. 162 (1870). 90 See: Act of Aug. 7, 1939, ch. 501, 53 Stat. 1223 (1939). 91 See: 28 U.S.C. §331 (2000).
exercised with the utmost care for judicial independence, to avoid adverse effects on matters that relate directly to judges and judicial affairs.92 In Israel there is a wide debate on the normative level of the provisions relative to judicial independence in the basic law: the judiciary and in the ordinary legislation.93 It has been suggested that even when ordinary legisla- tion regulates matters relative to judges and courts, they should be viewed as norms of higher level than ordinary legislation. Thus, it has been argued that judicial independence, being one of the fundamental principles of the system of government, enjoys a higher normative value even while it is regulated in regular normative legislation. This approach is supported by recourse to international law and jurisprudence on the subject in various jurisdictions.94
XII Insuring Decisional Independence of Administrative Adjudicators
Another important issue which deserves careful attention is the role and posi- tion of administrative tribunal judges and administrative judges hearing cases in administrative agencies. There is an on-going debate in the United States on what is referred to in England as the ‘tribunal judiciary’ and in the United States as ‘administrative judges’. The issue is to what extent the existing prac- tice of administrative judges acting within administrative agencies can be defined as impartial and independent.95 It is possible that other jurisdictions
92 Mt. Scopus Standards of Judicial Independence provide that: 2.12 Judicial matters are exclusively within the responsibility of the Judiciary, both in central judicial adminis tration and in court level judicial administration. Appendix I, Part IX, this Volume. Also see: Shetreet, ‘Judicial Independence: New Conceptual Dimensions and Contem porary Challenges’, in Shetreet and Deschenes, note 5 above, at pp. 611–612. 93 See Basic Law: The Judiciary, and see Section 15(c) which regulates the jurisdiction of the high court of justice to adjudicate any matters which it sees necessary to give remedy for the sake of justice and which are not in the jurisdiction of any other court or any other tribunal. See the case of Herut, and the case of The Forum co-existence in the Negev, see Shetreet, Culture of Judicial independence In Israel: Institutional and Substantive Aspects of The justice System in Historical Perspectives, 10 Law and Business 525–583, (2009), at pp. 25. (Hebrew). 94 See: Barak, Interpretation in Law – Constitutional interpretation (Hebrew. Nevo 1993), Vol. 3, pp. 411–435; Shetreet, Normative Cycle, note 11 above. Also see: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Art. 11(d). 95 See Jeffrey S. Lubbers, The Federal Administrative Judiciary: Establishing an Appropriate System of Performance Evaluation for ALJs, 7 Admin L J Am U 589, 613–617 (Fall 1993/
Winter 1994); James P. Timony, Performance Evaluation of Federal Administrative Law Judges, 7 Admin L J Am U 629, 641 (Fall 1993/Winter 1994). 96 Tribunals, Courts and Enforcement Act 2007, ch 15 (2007) (UK), available online at
XIII The New Face of the Contemporary Judiciary
A number of patterns emerge when examining the development of the judi- ciary in England over the last two decades. I have been working over the last three years with my co-author Dr Sophie Turenne of Cambridge University on a second edition of Judges on Trial which was originally published three decades ago. The patterns which clearly emerged generate a fairly new image of the judiciary in England. The patterns reflect the constitutional aspect of certain parts of the judiciary and legal system, greater diversity in judicial appointments, professionalization and formalization of the judiciary, increased managerial accountability, and a greater transnational and European impact. These patterns are shared by judiciaries in other parts of the world as well. There have been several historical developments since the Act of Settlement of 1700 which fundamentally impacted the English judiciary, particularly the Human Rights Act of 1998 and the Constitutional Reform Act of 2005. There has been an important procedural reform in the judicial proceedings that I refer to as the ‘Woolf reform’. The Constitutional Reform Act of 2005 (cra) provided for a separation of judicial functions from the executive in England. It also provided an express provision that Ministers must uphold the contin- ued independence of the judiciary. Although there had been a tradition of judicial independence with the Lord Chancellor in later years, before the pass- ing of the cra, there were anxieties that Britain would be found to be in viola- tion of Article 6 of the ECHR following the case of Pocola v Luxembourg. This, combined with personal tensions within the Cabinet and a power struggle between the Lord Chancellor’s Department and the Home Office, led to the abolition of the Lord Chancellor’s position as it existed before. No doubt there is a clear expectation for a greater diversity in judicial appointments in England. In fact, a significant constitutional change was introduced in the cra to this effect. That was the creation of the Judicial Appointments Commission. The need to restore public confidence in the judi- ciary led Parliament to require the Judicial Appointments Commission to weigh the need for diversity in judicial selection.100 Yet, under the old system vacancies were quickly filled, and the Judicial Appointments Commission has been criticized for being excessively bureau- cratic with a process that suffers from long delay and lengthy procedural requirements.
100 For a detailed analysis see Sophie Turenne, ch. 27, this volume. On the English Judicary in general see Shetreet and Turenne, Judges on Trial, (Second Ed. 2013).
We expect the judicial selection process to respect the principle of fair reflection of society. In view of the fact that the judicial branch of government has gone far beyond being a mere dispute-resolution institution, it cannot be composed with total disregard for the makeup of society. Likewise public con- fidences in the courts require that the principle of fair reflection be respected. Another development of the English judiciary is the formalization and pro- fessionalization of the judiciary changes in the patterns in the governance of the judiciary. The new methods of governance in hm Courts Service, based on the 2004 and 2008 concordat, led to the model of shared administration of justice between the judiciary and the Ministry of Justice. A ‘quiet revolutionary step’ has been the ‘mini-concordat’, whereby the Judicial Office for England and Wales was created, giving support to the Lord Chief Justice in its adminis- trative role. It is likely to grow further, as the professionalization of the judi- ciary develops further and the administrative responsibilities of the judiciary keep on expanding. In addition, the development of the judiciary’s internal governance mechanisms should be recognized, as well as the revival of the Judicial Council in 1988 and the greater involvement or representation of the judiciary in various institutions, such as the Criminal Justice Board, and before the Ministry of Justice. Another important factor is the increased emphasis on the proper training of judges. The Judicial Studies Board is not only a body that has greatly devel- oped the range of information offered to judges over time, it also contributes to the ‘modernization of the attitude of the judiciary’. The trend towards formal- ization has brought about a shift from unwritten traditions of judicial conduct to a written Guide to Judicial conduct in England and abroad. In England, the Guide for Judicial Conduct in general was issued by the United Kingdom Supreme Court and formulated for its members like the Code of Judicial Conduct. Another important development is the introduction of judicial appraisal. Appraisal is often used in other systems to support promo- tion; it raises a dual concern, however, of undue interference with judicial deci- sions and of abdication of responsibility when peers heavily base promotions on appraisals. The dramatic changes in the administration of justice have brought about the substantial growth in responsibilities of the Lord Chief Justice, under the cra, in the management of the judiciary. This is particularly needed as the norms, standards, and practices in the area of management of the judiciary determine the way in which judges relate to each other and achieve a sense of collective independence. While the Lord Chancellor is responsible for the administrative functioning of the courts, the Lord Chief Justice is responsible for the judicial function of the courts, including the deployment of individual
XIV Conclusion
We took a fairly long journey into the path of challenges that contemporary judiciary face today, but it is clear that judicial independence must remain a high priority for protection and enhancement. It is essential for liberty and democracy and it is vital for the rule of law both on the domestic and transna- tional level.
101 Findlay v. The United Kingdom, 1997-I, no. 30. Procola v. Luxembourg, A326 14570/89 (1995). See also to R v Parole Board (2008) (on the application of Brooke and the definition of an ‘independent tribunal’). See Shetreet, supra note 9.
Christopher Forsyth**
I Introduction
This paper tells the tale of the difficulties being faced by the courts and the Judicial Service Commission in South Africa over a case of alleged serious mis- conduct by a senior judge.1 It is a case of personal tragedy, spoiled reputations and ruined careers. But on a more sinister level it suggests, if the allegations are true, a lack of probity and integrity in at least one South African judge. And even worse than this, it seems that the constitutional institution set up to address judicial misconduct – the Judicial Service Commission – is proving inadequate to the task. But the record of the courts, particularly at the appel- late level, is more positive. As will be explained below, the Judicial Service
* I am particularly grateful to Tom Pascoe for his able assistance in preparing this manuscript for publication. ** 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 interna- tional 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 practic- ing barrister, a Bencher of the Inner Temple, and sits as a Recorder in the Crown Court in England. 1 I have previously dealt with this same topic in “The Failure of Institutions: The South African Judicial Service Commission and the Hlophe Saga” in Shereet and Forsyth, The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges (2012) at 69–84. Naturally, I shall draw on this earlier account to explain the latest developments. In particu- lar Sections I, II and III of this article are drawn from “The Failure of Institutions” at 75–76, 73–75 and 78–80 respectively.
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Commission has been held accountable to the law and is being required by the law to perform its constitutional function. The judge who stands at the centre of this sorry saga is the Hon. Mr Justice Hlophe, Judge President of the Cape. Mr Justice Hlophe grew up in rural Natal during the 1960s and 1970s. Apartheid was at its height. Although from rela- tively humble origins his ability and determination soon made itself known. As a black man he was inevitably discriminated against in many ways, but he nonetheless succeeded in obtaining a good education and being admitted to one of South Africa’s leading law schools.2 He was subsequently awarded an llm degree and phd by the University of Cambridge. Mr Justice Hlophe might easily have sought a career as an academic outside South Africa. But he returned to South Africa first to the University of Natal as a senior lecturer and then to the University of Transkei as a professor. He had a successful career as a scholar well underway when the political transformation of South Africa commenced in the early 1990s. But now the glittering prizes were laid before him. He was a very able, highly qualified legal scholar at precisely the moment in which the South Africa judi- ciary was about to be transformed. He was very much in demand. He was appointed a Judge of the Cape High Court at the age of 36 in 1995 and was, I believe, the first full time academic appointed direct to the High Court Bench in South Africa. His youth was both a blessing and a curse. Most judges in South Africa are appointed in their fifties and retire at statu- tory retirement age of seventy leaving a judicial career of only about fifteen years. Mr Justice Hlophe might reasonably have anticipated a judicial career of thirty four years. Plainly many opportunities for advancement and promotion would be laid before him. He might reasonably anticipate that he would become in due course one of, if not the, most senior and respected judge in South Africa. But at the same time he was young and, moreover, his career thus far had been almost entirely in the academic world. So he lacked the experi- ence of day-to-day practice that a more conventional appointee would have had. And he, perhaps, lacked the maturity an older man would have had in responding to the challenges he faced. Barely four years after his first appointment to the bench the judge presi- dency – in effect Chief Justice of the region – of the Cape fell vacant.3 Mr Justice
2 Mr Justice Hlophe was admitted to the University of Natal (now the University of Kwa-Zulu Natal) in Pietermaritzburg after studying at the equally famous University of Fort Hare. 3 The Judge Presidency of a High Court is in effective a mini-Chief Justice with administra tive responsibilities (allocating the roll, etc) as well as representative and ceremonial functions.
Hlophe was, to be frank, still feeling his way as a Puisne Judge but making good progress. There would be many other opportunities in the thirty years ahead in which the Judge Presidency – and even greater offices – would fall vacant and in which he would be the frontrunner. But this was not to be. He was appointed Judge President in 2000. The task that now faced the judge was a daunting one. There were heavy administrative responsibilities and an expectation of leadership. Yet there were doubtless colleagues on the bench who were sceptical of his rapid pro- motion and saw it as being at the expense of their advancement. Many at the Bar were similarly sceptical and critical especially when the judge’s inexperi- ence showed. This being South Africa, the ugly cry of racism was part of the currency of discourse. Doubtless sometimes this was justified, but oftentimes it was not. The consequence, of course, was much bitterness with compromise and reconciliation made more difficult.4 Anyway there was no doubt that the judge was (and is) a controversial Judge President. Wikipedia lists some eleven controversial incidents in the years from 2004 to 2009.5 Some of these concern politically sensitive or con- troversial cases which are an inevitably part of a judge’s lot. It is of course proper that such cases be closely scrutinised, but involvement in such cases (and even the making of errors in deciding such cases) do not in themselves raise doubts about a judge’s fitness for office. Others concern the trading of insults between the Judge President and other judges on the Cape Bench, and between the judiciary and the Bar. The Judge President was sued (and is still being sued) for defamation by a quondam acting judge. The most serious alle- gation, however, concerns the receipt of funds (for services as a pensions fund trustee) from a party before his court.6 We will say no more about these matters but instead turn to his current difficulties with the Judicial Service Commission.
4 Hlophe JP in fact made a report to the Minister of Justice on Racism in the Cape Bench and Bar accusing various counsel (who were well known as doughty fighters against apartheid) of racism (without giving them an opportunity to contradict his views). 5 http://en.wikipedia.org/wiki/John_Hlophe (visited 28th July 2013). The page is (inevita- bly) subject to dispute but I noted no obvious inaccuracy in the various controversies listed. 6 See Forsyth, “The Failure of Institutions: The South African Judicial Service Commission and the Hlophe Saga” in Shetreet and Forsyth (eds.), The culture of judicial indepen dence: conceptual foundations and practical challenges (Martinus Nijhoff Publishers 2012), pp. 77–78.
II The Composition and Tasks of the jsc
The composition of the jsc is set out in Section 178 of the Constitution.7 It is conveniently summarised by Professor Corder in the following words:
Chaired by the Chief Justice, the JSC consists of representatives of the judiciary and of the advocates’ and attorneys’ professional bodies, a teacher of law, the Minister of Justice and Constitutional Affairs, ten serv- ing members of Parliament drawn from both Houses, and four members designated by the President as head of the executive, after consultation with the leaders of opposition parties. Thus, of the 23 ordinary members of the JSC, fifteen are selected more for their broadly political views than their standing as lawyers, of whom at least twelve are likely to be loyal in the first instance to the ruling party in Parliament.8
It would be wrong to see the jsc as dominated by party politics but it is undeni- able that there is a significant political influence in the body. Views will differ on the best composition of a jsc but it is worth noting that the uk equivalent,
7 Section 178(1) provides: There is a Judicial Service Commission consisting of a. the Chief Justice, who presides at meetings of the Commission; b. the President of the Supreme Court of Appeal; c. one Judge President designated by the Judges President; d. the Cabinet member responsible for the administration of justice, or an alternate desig- nated by that Cabinet member; e. two practising advocates nominated from within the advocates’ profession to represent the profession as a whole, and appointed by the President; f. two practising attorneys nominated from within the attorneys’ profession to represent the profession as a whole, and appointed by the President; g. one teacher of law designated by teachers of law at South African universities; h. six persons designated by the National Assembly from among its members, at least three of whom must be members of opposition parties represented in the Assembly; i. four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces; j. four persons designated by the President as head of the national executive, after consult- ing the leaders of all the parties in the National Assembly; and k. when considering matters relating to a specific High Court, the Judge President of that Court and the Premier of the province concerned, or an alternate designated by each of them. 8 Corder, “Appointment, Discipline and Removal of Judges in South Africa” in H.P. Lee (ed.), Judiciaries in Comparative Perspective (CUP 2010) 100–101 (footnotes omitted).
A judge may be removed from office only if - (a) the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and (b) the National Assembly calls for that judge to be removed, by a reso- lution adopted with a supporting vote of at least two thirds of its members.
The upshot of this is that, setting aside questions of incompetence and inca- pacity, the removal of a judge from his office requires a finding by the Judicial Service Commission of “gross misconduct.” When considering an allegation of gross misconduct the JSC sits without its ten serving members of the National Assembly. The Constitution does not specify the procedure to be adopted by the Commission in making its finding. On the contrary, it provides that the jsc “may determine its own procedure, but decisions of the Commission must be
9 Section 174(2) of the Constitution.
III The Zuma Case
The career of Mr Justice Hlophe was not to settle down into placidity after the catalogue of controversial incidents mentioned earlier.11 The current President of South Africa, Jacob Zuma, is also no stranger to controversy. His tale and that of Mr Justice Hlophe now become for a period intertwined. Mr Zuma was an ambitious politician but his path to the highest office was ostensibly blocked by allegations of corruption. These were serious allegations for a financial adviser. Schabir Shaik, an associate of Mr Zuma, had stood trial and been convicted of fraud and corruption concerning a large arms deal at the time that Mr Zuma was Deputy President of South Africa.12 The judge in Shaik’s trial intimated that there had been a corrupt relationship between Shaik and Zuma. Zuma was dismissed as Deputy President by the then President, Thabo Mbeki. He faced the prospect of a trial for corruption. There were several attempts to delay or prevent Zuma’s trial by various interlocutory applications. One of these concerned a challenge to the validity of six search warrants which had been executed against various offices and homes of Mr Zuma and his co-accused (a company called Thint (Pty) Ltd). The warrants were challenged by Zuma on various grounds including that some of the documents seized might have been subject to legal professional privilege. Anyway, these were in the issues that were argued before the Constitutional Court in March 2008. Judgment was given on the 31st July 2008 rejecting the appeals against the validity of the warrants.13 This was the background against which the storm broke. On 30th May 2008 the judges of the Constitutional Court issued a press statement in which it was alleged that Judge President Hlophe had attempted improperly to influence
10 Section 178(6) of the Constitution. 11 See Section 1 above. 12 Shaik was sentenced to approximately fifteen years imprisonment. He was released on parole in March 2008 after serving two years and four months. His release took place under the Correctional Services Act, No 111 of 1998, s. 17, which provides for the release on parole of prisoners suffering from a terminal illness “to die a consolatory and dignified death.” When last heard of Mr Shaik was seemingly in good health, playing golf, etc. 13 Thint (Pty) Ltd and Zuma v National Director of Public Prosecutions [2008] ZACC 13 (CC).
The following weeks witnessed a slew of accusation, counter-accusation, rumour, outright denial by Judge Hlophe, calls for his dismissal by politi- cal parties and others, and vigorous defence of Judge Hlophe by several commentators… It became known that the two judges whom Judge Hlophe had met and with whom he had discussed the case were Justice Bess Nkabinde and Acting Justice Chris Jafta… [Delays in making the alle- gations and the responses to them] led to speculation about the politics of the move within the Court itself and within the broader legal profes- sion, as well as counter-complaints of procedural unfairness, both from Judge Hlophe and increasingly vociferously from his supporters. These exchanges culminated in Judge Hlophe (who had been granted special leave of absence by the Minister of Justice pending the resolution of this matter) submitting a counter-complaint to the JSC, alleging that the Constitutional Court’s decision had been politically motivated and threatened the independence of the judiciary.14
An extraordinary position thus materialised: different judges had complained to the jsc about each other! There was a great deal of fuss and vociferous com- ment (much of it ill-informed) in the newspapers. Allegations of racism and political interference were distributed liberally. But any sympathetic observer of the South Africa judiciary was surely close to despair. The situation deteriorated when Judge Hlophe sought to prevent the jsc’s consideration of the Constitutional Court’s complaint. Judge Hlophe argued that that Court should have given him a hearing before it made a complaint to the jsc. There was also litigation over whether the jsc could consider the com- plaint and counter-complaint in open or closed proceedings. We shall consider this litigation shortly.15 What became clear was that Judge Hlophe had met separately with Acting Constitutional Court Justice Christopher Jafta and Constitutional Court Justice Bess Nkabinde after argument but before decision in the Zuma matter. What happened during those meetings was sharply disputed.16
14 H. Corder, 2008 Annual Survey of South African Law (hereinafter Corder (Annual Survey)). 15 See Section 4 below. 16 See Freedom Under Law v Judicial Service Commission [2011] ZASCA 59 [32]-[39] for the conflicting accounts of what happened.
The Constitutional Court alleged that Judge Hlophe had announced to Justice Nkabinde that he possessed a “mandate” to meet with her. He said that “there [was] no real case against [Zuma],” who was being “persecuted.”17 Judge Jafta confirmed that a similar approach had been made to him. Hlophe had allegedly told Justice Jafta that he was “our last hope.”18 Both Judges stated that they had dealt with the matter firmly and rejected Judge Hlophe’s advances. Judge Hlophe issued a lengthy response to the Constitutional Court’s com- plaint alleging that it was trumped-up and politically motivated. Faced with conflicting accounts of these meetings, the Disciplinary Committee of the jsc decided on the 7th July 2008 “that oral hearings were necessary to resolve the disputes of fact.” The jsc was apparently keen to prog- ress with resolving the controversy before it could fester any further. But it was now delayed for more than one year by a sequence of litigation initiated by Judge Hlophe, who sought to prevent the JSC proceedings by alleging that the complaint itself infringed his constitutional rights.19 The Supreme Court of Appeal eventually found against Judge Hlophe on these issues, although it expressed no view on the merits of the underlying complaints.20 When the matter returned from the courts to the jsc about a year later the legal and political landscape had changed. Jacob Zuma had become President. He had persuaded the Director of Public Prosecutions to drop the corruption charges against him. Furthermore, the term of office of four Presidential appointees on the JSC had come to an end. Four new members had thus been installed.21 This change in membership of the jsc may have affected the out- come of the subsequent proceedings. When the case came before the jsc on the 28th August 2009 it decided (by a majority) not to proceed with the full hearing of the complaint against Judge Hlophe. The jsc’s reasons were, first, while they accepted that Judge Hlophe had said to Jafta and Nkabinde JJ that the Zuma/Thint matter had to be decided “properly,” they did not find that that the complainant judges had with suffi- cient consistency testified that he had said that the case must be decided in a particular way (i.e. favourable to Zuma).22 In fact, one of the judges said that Judge Hlophe had never said that the case should be decided in a particular
17 Ibid at [34]. 18 Ibid at [32]. 19 See Section 4 below. 20 Langa v Hlophe [2009] ZASCA 36. 21 The President in consultation with the leaders of the opposition parties is empowered to appoint four members of the jsc under Section 178(1)(j) of the Constitution. See text to n 7 above. 22 See Freedom Under Law v Judicial Service Commission [2011] ZASCA 59 [47].
…so absurd as to border on the irrational. It means that if a judge wants to improperly influence [sic] other judges he or she could get away with it as long as he or she never says the magic words: ‘Decide the case in favour of X.’ He or she could say the case must be decided ‘properly’, and can argue what a ‘proper’ decision would be, but this would not, accord- ing to the wise people at the JSC, constitute an attempt to influence the judge approached.23
So while it was not disputed that Mr Justice Hlophe had discussed the pending case with Nkabinde and Jafta JJ, this was not “gross misconduct” but at most “unwise, ill-considered, imprudent, not thought through.”24 The jsc refused to entertain a hearing on either complaint. This unpersuasive decision to take no further action against Hlophe was, inevitably, very controversial and disconcerting. Although the jsc received evidence from those involved (mostly in written form) and disclosed that evidence to all those involved, there was no cross-examination to test which of the various accounts given by the Constitutional Court judges and Hlophe jp was to be preferred.25 As Professor Corder remarks, these incidents have:
…done considerable harm to the precious level of legitimacy earned by the post-apartheid judiciary, in particular the Constitutional Court, as a secure and independent protector of the Constitution and good gover- nance, and because the arguments raised chiefly in support of Hlophe… have plumbed new depths of irrationality, in which racism features prominently.26
23 Professor Pierre de Vos in “Constitutionally Speaking” at http://constitutionallyspeaking .co.za/a-sad-day-for-our-judiciary-and-the-jsc/ (accessed 28th July 2013). 24 Ibid. 25 See Streicher JA’s account of the jsc proceedings in Freedom Under Law v Judicial Service Commission [2011] ZASCA 59 [31]. 26 Corder, n 8 above, Section ll.
IV Judge Hlophe, the jsc and the Courts
The jsc’s continuing involvement in the Hlophe saga has been driven by a rash of litigation commenced by various interested parties. The legal disputes have taken shape over three stages. First, Mr Justice Hlophe’s procedural challenge to the Constitutional Court’s referral of his complaint to the jsc. Second, an ngo’s challenge to the jsc’s decision to take no further action in the case. Third, a failed application for permission to appeal against the Supreme Court of Appeal’s (“sca”) decision on the second matter. The remainder of this article will trace the trajectory of this litigation.
A Part One: Does a Judge Have a Right to be Heard before a Complaint against him Is Made?
On 25 September 2008, the High Court handed down its judgment in Hlophe v Constitutional Court of South Africa.27 This judgment was to be the first in an eruption of litigation concerning Mr Justice Hlophe and the jsc. On appeal, the Supreme Court of Appeal (“sca”) neatly summarised the legal challenges raised by Mr Justice Hlophe at this first stage:
This [case] is confined…to two narrow questions of law relating to alleged violations of the Constitution. The first is whether the appellants, as judges of the [Constitutional Court], were obliged in law to afford the respondent, because he is a judge, a hearing prior to laying the complaint against him before the JSC. And the second is whether, having lodged the complaint, they were obliged in law to keep that fact confidential…This judgment accordingly is not concerned with the merit of the complaints to the JSC.28
At first instance, Mr Justice Hlophe was successful. The High Court held that the Constitutional Court had acted unlawfully by issuing a complaint to the JSC, and publishing the details of that complaint, without giving Hlophe JP an opportunity to make representations beforehand.29
27 [2008] ZAGPHC 289. 28 Langa v Hlophe [2009] ZASCA 36 [7]. 29 Hlophe v Constitutional Court [2008] ZAGPHC 289. The High Court ruled, inter alia, that (i) the Constitutional Court had acted unlawfully by failing to afford Mr Justice Hlophe a hearing before issuing a complaint to the jsc ([43]) and (ii) the publication of details of the Court’s complaint in these circumstances violated his right to dignity ([87]) and equality before the law ([89]).
The sca disagreed. In a judgment handed down on the 31st March 2009 it observed that:
…[Judge Hlophe founded] his case upon the proposition that in mak- ing their decision the appellants were acting institutionally (‘as a court’) in the performance of the judicial function. For there is no doubt that in the performance of the judicial function, by which we mean the adjudication of rights and obligations, judges are bound to observe and apply the substantive rules of law that generally confer a right to be heard upon persons whose rights will be affected by a judicial decision…[But] the insurmountable barrier that is encountered by counsel’s submis- sion…is that in making their decision the appellants were not performing a judicial function (or as the respondent would have it, acting ‘as a court’).30
It followed that there was no duty for the Constitutional Court to grant a hear- ing before issuing a complaint against a judge to the jsc.31 The sca also rejected Mr Justice Hlophe’s challenge to the publication of the complaint:
Once having found the appellants did not act unlawfully in laying the complaint we can see no basis for finding that they were obliged to keep that secret… On the contrary there is much to be said for the contrary proposition (bearing in mind the circumstances in which it occurred) that the constitutional imperatives of transparency obliged them to make the fact known.32
Indeed, the sca approved the appellant Constitutional Court judges’ submis- sion that:
In the circumstances where the independence of the Constitutional Court had been threatened and the integrity of the administration of jus- tice in South Africa generally, it was considered imperative and appropri- ate that this be publicly disclosed. Should the facts have emerged at a later stage there would have been a serious risk that the litigants involved in the relevant cases and the general public would have entertained mis- givings about the outcome and the manner in which the decisions were reached. It was especially important that the litigants and the general
30 Ibid [45]–[46]. 31 Ibid. 32 Ibid [50].
public were informed of the attempt and that the Constitutional Court had not succumbed to it.33
Mr Justice Hlophe’s first legal manoeuvre thus failed, and the jsc resumed its consideration of the complaint. On 22nd July, the Commission resolved to hear the relevant evidence behind closed doors. This element of the Commission’s decision was successfully challenged in an urgent application to the High Court and quashed. The evidence was eventually aired in open proceedings.34 As we have seen, however, the Disciplinary Committee of the jsc subsequently decided on the 28th August 2009 to take no further action against the Judge.35 It was this decision which exposed Mr Justice Hlophe’s case to a second round of scrutiny by the courts.
B Part Two: Judicial Review of the Decision to Take No Further Action
The sca handed down its judgment in Freedom under Law v Judicial Service Commission on the 31st March 2011.36 The applicant was an ngo whose mission was to “promote democracy under law, advance the understanding and respect for the rule of law and the principle of legality and secure and strengthen the independence of the judiciary.”37 The fact that the application was not made by a consortium of the original complainant Constitutional Court judges reflected the prevailing feeling that the matter had been dragging on for so long, and doing so much damage to the reputation and standing of the judi- ciary, that it should be allowed to die away. The applicant targeted its challenge at the jsc’s decision on the 28th August 2009 to mothball its investigation of the complaint raised against Hlophe JP. It pegged its challenge to Section 165(4) of the Constitution, which provides that “[o]rgans of the state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibil- ity and effectiveness of the courts.” In essence, the applicant argued that the
33 Ibid. 34 See Mail and Guardian Limited v Judicial Service Commission [2009] zagpjhc 29. Malan J held that the hearing should be in public and said [22]: “Any benefit that may or might have been be gained by a hearing ‘outside the intrusive glare of publicity’ will be discounted by negative perceptions of the judiciary and the administration of justice in general. This matter has attracted immense public interest and has been the subject of a debate in the media. There is every need to ensure the public’s continued access to the issues.” 35 See Section lll above. 36 [2011] ZASCA 59. 37 Ibid at [16].
Any attempt by an outsider to improperly [sic] influence a pending judgment of a court constitutes a threat to the independence, impartial- ity, dignity and effectiveness of that court. In the present case the allega- tion is that Hlophe JP attempted to improperly influence [sic] the Constitutional Court’s pending judgment in one or more cases. The JSC had already, when it decided to conduct the interviews with the judges, decided that if Hlophe JP had indeed attempted to do so he would have made himself guilty of gross misconduct which, prima facie, may justify his removal from office. Moreover, it based its decision dismissing the complaint on an acceptance that Hlophe JP probably said what he is alleged to have said. In these circumstances the decision by the JSC to dismiss the complaint on the basis of a procedure inappropriate for the final determination of the complaint and on the basis that cross- examination would not take the matter any further constituted an abdi- cation of its constitutional duty to investigate the complaint properly. The dismissal of the complaint was therefore unlawful.39
Streicher JA was unimpressed by Mr Justice Hlophe’s submission that the court should in any event withhold a remedy on grounds of impracticality. In an analysis which revealed the strength of the feeling behind the Court’s judge- ment, he observed:
It is alleged that a very high ranking judge, the head of one of the biggest divisions of the high court, attempted to influence two of the judges of another court to decide a matter in a particular way. The allegation was considered to be so serious as to constitute gross misconduct which if established may justify the removal of the judge from office. It cannot be in the interests of the judiciary, the legal system, the country or the public to sweep the allegation under the carpet because it is being denied by the accused judge, or because an investigation will be expensive, or because the matter has continued for a long time.40
38 Ibid at [48]. 39 Ibid at [50]. 40 Ibid [63].
The sca thus ordered the jsc to revisit its decision to close Mr Justice Hlophe’s case.41 One might have expected the baton to be handed firmly over to the jsc at this stage. But Hlophe JP sought one more bite at the cherry, in the shape of an appeal to the very Court whose members had initiated the complaint against him in the first place! It is to this application that we now turn.
C Part Three: Application for Permission to Appeal to the Constitutional Court
Judge Hlophe sought to appeal to the Constitutional Court against the decision of the sca alleging various infringements of human rights. But an appeal was available only with the leave of the Constitutional Court. As the Court observed in its leave to appeal decision, the application faced a troubling logis- tical obstacle:
The problem is this. Section 167(1) of the Constitution provides that this Court consists of eleven Judges. The Court usually sits en banc, but Section 167(2) provides that a matter before the Constitutional Court must be heard by at least eight Judges. Six of the serving Justices currently appointed to the Court were serving as Constitutional Court Judges when the complaint against the applicant was lodged with the JSC. Three of them recused themselves from the hearing before it was argued. This left the Court with a bare constitutional quorum of eight, including three Justices who were parties to the complaint lodged with the JSC against the applicant and two others who had been involved in attempted medi- ation. If these Judges are disqualified from hearing the applications for leave to appeal because of their perceived or actual interest in the out- come of the matter, there would be no quorum for this Court to hear and determine the matters.42
41 In a judgment delivered on the same day, the sca also quashed the jsc’s decision on a number of more narrow but still important procedural grounds. See Acting Chairperson: Judicial Service Commission v The Premier of the Western Cape Province [2011] zasca 53. Section 178(k) provides that “when considering matters relating to a specific High Court, the Judge President of the Court and the Premier of the province concerned, or an alter- nate designated by each of them” would be members of the jsc. But in fact the Premier was not at the meeting of the jsc becasue she had not been notified of it. Moreover, deci- sions were to be taken by majority vote of the members of the JSC and the impugned decision was only taken by a majority of those present (Section 178(6)). Thus the decision was invalid. 42 Hlophe v Premier of the Western Cape Province; Hlophe v Freedom Under Law [2012] ZACC 4 [17].
Mr Justice Hlophe’s application for leave to appeal thus engaged two constitu- tional questions of some novelty. First, does the Constitution authorise the appointment of Acting Judges where a quorum would otherwise be unavail- able? Second, if not, should the Court entertain Hlophe JP’s application for leave to appeal notwithstanding the apparent conflict of interest?43 The Court considered that these questions fell for determination against the following constitutional context:
[The Constitutional] Court is the final and highest court in relation to the constitutional matters that form the subject matter of the applications for leave to appeal. The Court, as constituted for these applications, includes members who may have been perceived to have an interest in the outcome of the proceedings before the JSC… [But] lastly, it is a funda- mental right of everyone under the Constitution to have legal disputes decided in the courts or, where appropriate, by an independent and impartial tribunal or forum.44
On the first question, the Court ruled that as a matter of textual analysis the Constitution did not authorise the appointment of Acting Judges in the pre- vailing circumstances.45 The second question therefore arose for consider- ation. However, the Court fudged this issue. It obfuscated the merits of Hlophe JP’s application for leave with the broader question of constitutional logic that confronted the Court. It thus disposed of the application in the following terms:
A balance needs to be struck between the Court’s obligation to provide finality in this matter (as it would be intolerable to have a case pending indefinitely) and possible injustice to the applicant. These factors weigh heavily in determining the extent to which it is in the interests of justice to enter into the merits, and thus whether to grant leave to appeal. …There is a need for finality. This was not disputed. In determining the extent to which we should consider the merits, regard must be had to whether substantial injustice will be done to the applicant should this Court refuse to grant leave to appeal. The underlying right which the applicant seeks to protect on final instance to this Court is, importantly, a procedural one: the rejection of that right will result in the continuance
43 Ibid at [22]. 44 Ibid at [29]. 45 Ibid at [33]–[42].
of a process only and will not result, without more, in a finding against him on the substance of the complaint. What is more, the applicant has had the benefit of an appeal. These considerations mitigate the threat of injustice. In addition, although the parties have consented to the conflicted Judges’ sitting in the present matter, regard must still be had to the fact that they would ordinarily have to recuse themselves. For this reason, this Court should deny leave to appeal to preserve the fairness of its own processes.46
Where does this ruling leave Mr Justice Hlophe and the jsc? It appears, for now, that the Judge has exhausted his opportunities for legal challenge. The ball has therefore been placed squarely in the jsc’s court. An announcement by Hlophe JP’s attorney suggests that the jsc will (re-)re-consider his case over two weeks commencing the 30th September 2013. Given the trajectory of the proceedings thus far, it is impossible to predict what the outcome will be (or indeed whether there will be an outcome at all). But any disciplinary proceedings that take place will now commence before a Judicial Conduct Committee (jcc) established in terms of the the Judicial Services Commission Amendment Act, 20 of 2008.47 The jcc has an entirely judicial membership. The jcc consists of the Chief Justice and Deputy Chief Justice who sit ex officio and four judges (at least two of whom must be women) designated by the cj in consultation with the Minister of Justice. The role of the Judicial Conduct Committee is “to receive, consider and deal with complaints” against judges. The procedures for dealing with the less seri- ous complaints of misconduct by judges need not detain us (they are dealt with by the cj and a committee member subject to appeal to the jcc). But the most serious allegations of misconduct involving potential removal from office may lead the jcc to recommend to the Commission the appointment of an investigative Tribunal. The three members of the tribunal are appointed by the Chief Justice. Two are judges and one is not but is selected by the cj from a list maintained by the jsc of suitable persons appointed to the list by the cj with the concurrence of the Minister of Justice. The Tribunal follows the procedure
46 Ibid [46]–[48]. 47 This measure forms the remnant of a wider measure designed to subject the administra- tion of the courts to the executive that was very controversial and is not for the moment to be enacted. See Corder, note 8 above, at p. 20. The Act amends the Judicial Service Commission Act, 9 of 1994. For a fuller account of this legislation see “The Failure of Institutions” 83–84.
V Conclusions
At the time of writing it has been more than five years since the Constitutional Court lodged its complaint against Mr Justice Hlophe. Every day that the allegation is not properly investigated and dealt with, the more harm is done to the reputation of the South Africa judiciary. It is also concerning that the Constitutional Court has identified, but failed to resolve, a difficult issue of constitutional logic when it comes to entertaining appeals concerning com- plaints lodged against fellow judges. Whatever might be thought of Judge Hlophe’s alleged conduct and the points raised in the various cases brought by him and others, it is the JSC who must take the lion’s share of responsibility for this state of affairs. A disciplin- ary body must be properly equipped to deal with the cases that may come before it. Judge Hlophe has challenged the system and the system has not dis- tinguished itself in dealing with the complaints against the judge. Disconcerting too is that while the sca emerges with some credit in this matter (in that its two judgments outlined above are impressive), some of the first instance decisions are much less impressive with the puine judges holding originally that there was a right to be heard before a complaint was made and that there were no grounds for judicial review of the jsc’s decision to take no further action. Even so, it should at least be noted that the Supreme Court of Appeal has subjected the jsc to judicial review and has required it to hold a proper inves- tigation into the complaint made by the Constitutional Court judges. That investigation has not yet taken place and that will be the test of the jsc. But this tale of serious allegations, endless litigation and constitutional dilemmas sug- gests that the road ahead is unlikely to be smooth for the jsc. Who knows what direction the Hlophe saga will take next?
Marcel Storme*
I Past Achievements
The Law Faculty at the University of Ghent, where we held the ninth confer- ence of judicial independence, has been linked with international develop- ments in Law & Society for a long time. In 1904, the Institut de Droit International received the Nobel Prize of Peace, since the President of this Institute drafted the rules of warfare. Since our group has been engaged in conferences and projects, we have made many achievements. And especially, we have been linked with interna- tional and comparative procedural law. This Faculty has been embedded in the Access to Justice movement, inspired by one of the most brilliant scholars in procedural law, Mauro Cappelletti, Doctor Honoris Causa of our Ghent Law Faculty. The first world Congress of International Association Procedural Law took place in 1977 in Ghent: Towards A Justice With A Human Face.1 And we organ- ised again an international colloquium for the same association in 2000: the Discretionary Power of the Judge, where, inter alia Professor Shimon Shetreet was also a General Reporter.2 For this two-day conference, we have received the hospitality of the Law Faculty. I am proud of two specific aspects of this Ghent Conference. First, we
* Director, Institute of Procedural and European Law. He has graduated from Ghent University in 1952 and received Post Graduate degrees from University of Paris and London School of Economics. Barrister at the Gent Bar since 1952, Prof.em.Gent and Antwerp, Honorary President of the International Association Procedural Law, Former President of the Belgian Academy of sciences and arts, Former Member of the Belgian Parliament. He has published many books, including Burden of Proof, General Principles of Law, and numerous articles. 1 Marcel Storme & Helene Casman, Rijksuniversiteit te Gent Fakulteit der Rechten, Towards a Justice With a Human Face: The First International Congress on the Law of Civil Procedure (1977). 2 See Discretionary Power Of The Judge: Limits And Control (Marcel Storme & Burckhardt Hess eds., Kluwer 2003).
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_005
II Judicial Independence and Impartiality
One hundred years ago, Roscoe Pound delivered a speech with the title: “the popular dissatisfaction about the functioning of Justice.”7 As in former conferences, we started in confusion and we ended in confu- sion, but on a much higher level.
3 See Appendix II, Part IX, New Delhi Code of Minimum Standards of Judicial Independence (1982). 4 See id. 5 For a detailed analysis of reforms, see Shimon Shetreet & Sophie Turenne, Judges on Trial: The Independence and Accountability of the English Judiciary (2nd ed. 2013). 6 Endeavour Morse (Masterpiece 2011) (http://www.pbs.org/wgbh/masterpiece/endeavour/ index.html, http://www.pbs.org/wgbh/masterpiece/endeavour/interviews.html). 7 Roscoe Pound, Causes of Popular Dissatisfaction with the Administration of Justice, 29 A.B.A. Rep. 395 (1906).
We had for the 9th time again a beautiful conference, which will add an extremely important chapter to the final draft of our international standards of Independence and Impartiality of Judiciary. Let us not forget that in the well-known image of the blind-folded Lady Justice the stress is put on impartiality: she may not see the faces of the parties since she has to judge in an impartial way. Impartial means away from the parties: un party! May I also remind you of the famous reaction of Thomas Becket when he was appointed as a Lord Chancellor: “Sir, till today I was your friend but from now I am your Lord Chancellor.” When I was in Argentina as an expert of the World Bank about la Reforma de la Justicia in 1994, I had the opportunity to meet the President of the Supreme Court, who was known as a very good and close friend of the President of the Argentinian State, Carlos Menem. When I told the President my story about the Becket-complex, he was furious and reacted in this way: Mr Storme, I was a close friend of President Menem and I’m still a close friend of President Menem… I do not wish to summarize nor conclude but raise some aspects of our meeting in the Ghent Conference. At the same time I wish to present a number of proposals for the future and some new aspects in our project and sugges- tions for future research. Since our conference in Vienna, we are examining also Independence and Impartiality in international courts. We had the opportunity to hear the young- est judge of the European Court of Human Rights in Strasbourg, the Belgian Judge Paul Lemmens, a former student of mine. We had also the opportunity to hear the presentation of the President of the Belgian Constitutional Court,8 also a former student of mine, who gave us an insight into that Court and who analyzed the constitutionalizing of procedural laws. I must confess that I was struck by the argument that we cannot challenge certain procedural constitutionalized arrangements, even if it would lead to a non-functioning of the Court. It was interesting to consider a specific aspect of Independence, namely Independence within the Judiciary; that is, the internal independence of the judge.9
8 See Marc Bossuyt, The Independence of the Judiciary in Belgium, in Culture of Judicial Independence: Rule of Law and World Peace (Shimon Shetreet ed., 2014) (Chapter 9 of this volume). 9 See Appendix I, The Mt. Scopus International Standards of Judicial Independence (2013).
Indeed the so called corporatism between judges could lead to communica- tion between judges about pending cases, as, for instance, has been in the case of the Belgian judge in the Fortis-gate affair.10 At the same time, it was equally surprising that in Austria a judge could challenge another judge who is sitting in the same panel. Accountability of judges is of course an old issue: quis custodiet et ipsos cus- todes,11 a very difficult problem on which Max Rheinstein and Mauro Cappelletti wrote brilliant articles.12 In Belgium, the Court de Cassation decided in 1991 that the Belgian State is liable when a judge ruled in a wrong way and when the damage could not be compensated in another way. Sir Louis Blom Cooper gave us a very original approach of fairness and anal- ysis of the fair trial requirements in art. 6 of the European Convention.13 But we should examine the impact of fairness since this was described by Lord Nicholls as an elusive concept.14 We added also two new standards to our Mt. Scopus International Standards of Judicial Independence, namely Building Culture of judicial independence and the guidelines regarding Public Inquiries by Judges.15 Professor Shetreet gave a presentation of the new trend in common law jurisdictions of the shift from non-written traditions of judicial conduct to written codes of judicial ethics. This was done in Australia, Canada, United Kingdom and in Israel.16 Following this trend, I think we should embark upon a project to draft a global written Code of Ethical Conduct for judges. Following our 9th Conference on judicial independence, we must state with satisfaction that it was again, thanks to a lot of outstanding presentations, a very fruitful conference and a very open club of friends in search of the basic principles of Independence and Impartiality. At a certain moment it became like the world of legal practitioners, a kind of a human zoo.
10 For the case see Bossuyt, supra note 8. 11 Translation: “who shall keep over the guardians.” 12 Mauro Cappelletti, Who Watches the Watchmen?, 31Am. J. of Comp. L. 1 (Winter 1983). 13 See Louis Blom-Cooper, On Fairness, in Culture of Judicial Independence: Rule of Law and World Peace (Shimon Shetreet ed., 2014) (Chapter 10 of this volume) [hereinafter Blom-Cooper]. 14 Id. 15 See Appendix I Part IX, this Volume, Article 1.4 and Article 9A. 16 See Shimon Shetreet, Comparative Perspectives on the Status of Codes of Judicial Ethics, in Culture of Judicial Independence: Rule of Law and World Peace (Shimon Shetreet ed., 2014) (Chapter 20 of this volume).
Sir Louis Blom Cooper compared, indeed, the concept of fairness, being identifiable with an elephant!17 And Neil Andrews tried to explain to us the distinction between solicitors and barristers. I must tell you that I have known for a long time the exact distinction: the distinction between barristers and solicitors is like the distinction between crocodiles and alligators! Neil Andrews stressed the fact that the public interest of Justice has to remain the central idea of our research. The President of the Belgian Constitutional Court reminded us that the quest for justice is the only duty of the Judiciary. After the publication of the six volumes of Access to Justice,18 the best comparative study ever in the field of procedural law, Mauro Cappelletti invited us in 1978 for a colloquium in Florence. We had a marvelous closing lecture by the French Professor André Tunc: “Our quest for Justice.” Since Antigone, we are indeed in quest of Justice. May I tell you that here in Ghent a panel of the Mystic Lamb, the Just Judges, was stolen in 1935, and in 75 years we could not find this panel. We are still in a quest for just judges in Ghent.
III Agenda for the Future
We must warn against the pressure by the media but also by the public. There is in Dakota a proposal to sanction judges for judgments which are criticised by the public opinion! This is a topic for our next conferences. We must also warn against IT-Justice. There was a famous French-Jewish philosopher, Emmanuel Levinas, who wrote a book on “La philosophie du vis- age.” Our human face is the least-protected part of our body. The human faces of others invite us to help and to listen to each other. This is the main reason to maintain our face-to-face justice. We must note the importance of the field of online dispute resolution and put this topic on our agenda for the future. We should analyze the emerging and increasing recourse to the online justice practices and procedures whereby consumers are compelled to work out disputes and arguments against major companies online or in digital
17 See Louis Blom-Cooper, On Fairness, in Culture of Judicial Independence: Rule of Law and World Peace (Shimon Shetreet ed., 2014) (Chapter 10 of this volume) [hereinafter Blom-Cooper]. 18 Mauro Cappelletti, Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies (1976).
IV Conclusion
I wish to address our General Coordinator, Professor Shimon Shetreet. As I said at the opening session of the conference in Ghent in 2012, your first name is Endeavour. I wish to thank you on behalf of the legal community from all over the world for the immense efforts you have made for more than 35 years to draft a global code of general principles concerning Impartiality and Independence of the Judiciary. You did it with inspiration, ingegno and conviviality. I wish that this effort could be rewarded by a Nobel Peace Prize to our Association, the International Association of Judicial Independence (The jiwp Association), remembering that a former Nobel Peace Prize was given to the Institut de Droit International of the Ghent University, exactly 100 years ago in 1904.
Judicial Independence, Human Rights, Democracy, the Rule of Law and World Peace
∵
Chapter FIVE Judging the Independence and Integrity of Foreign Courts
Neil Andrews*
I Introduction
The English courts have recently had to deal with two difficult and related issues. Both involve evaluation by English courts, applying fundamental norms, namely, judicial independence and the principle of adjudicative finality, of a foreign court’s exercise of jurisdiction. Those fundamental norms1 are facets of ‘the rule of law’. Indeed in the second English decision,2 the concept of ‘the rule of law’ was explicitly invoked in the context of finality.3 As suggested in the title to this piece, it might be helpful to regard judicial independence and related fundamental aspects of sound adjudication as matters concerning the ‘integrity’4 of courts.
* Professor of Civil Justice and Private Law, Faculty of Law, University of Cambridge; Fellow of Clare College, Cambridge; Bencher of Middle Temple, 2007; Member of the American Law Institute; Vice-President, International Association of Procedural Law. 1 For general discussion of judicial independence in English law, N. Andrews, Civil Processes (Intersentia, Cambridge, 2013), vol. 1 (Court Proceedings), ch. 26; and on fundamental princi- ples generally in English civil proceedings, ibid., ch.’s 25 to 29 (ch. 25, ‘The Five Constellations of Procedural Principle’; ch. 26, ‘Judicial Independence and Impartiality’; ch. 27, ‘Due Notice’; ch. 28, ‘Publicity and Open Justice’; ch. 29, ‘The Duty to Give Reasoned Decisions’. And for comparison with arbitration, N. Andrews, Civil Processes (Intersentia, Cambridge, 2013), vol. 2 (Mediation and Arbitration), ch. 5, ‘The Major Principles of Arbitration and Litigation: A Comparison’. 2 Merchant International Co. Ltd v. Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy [2012] EWCA Civ 196, [2012] 1 W.L.R. 3036; [2012] 2 All E.R. (Comm) 1; [2012] C.P. Rep. 25; [2012] 1C.L.C. 396; M. Ahmed, ‘Setting aside judgment in default, Article 6 of the European Convention on Human Rights and the Principle of Res Judicata’ (2012) C.J.Q. 417. 3 Lord Bingham’s brilliant study of the ‘rule of law’ concept, T. Bingham, The Rule of Law (London, 2010), prescribes a list of fundamental legal principles or precepts; but his list is not exhaustive; the tentacles of ‘the rule of law’ can extend to ‘cross-border’ matters. 4 ‘Integrity’ is multi-faceted: see n. 27 below.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_006
The first case, Yukos Capital Sarl v. ojsc Rosneft Oil Co. (2012),5 concerns judicial independence. More precisely, that case concerns the status of a for- eign decision (decision Y) declaring that another foreign state’s court (in decision X) had acted without judicial independence. Should the court respon- sible for decision Y, and which has declared that judicial independence was lacking (or made the converse declaration, that judicial independence was sat- isfied) have both the first and the last say on that matter, in accordance with the doctrine of issue estoppel (a branch of res judicata),6 or is the next foreign jurisdiction in which the same issue arises (in decision Z) entitled to take a fresh view on this matter? The answer given by the English Court of Appeal in the Yukos case7 (in decision Z) is that issue preclusion does not apply in this context. The English Court of Appeal adopted the view that public policy relat- ing to the criterion for judicial impendence in the respective jurisdictions (the courts where decisions Y and Z are given) might differ. That is a possibility. But the better explanation is that, even if there were no such variation, factual determinations on such a matter should be open to each foreign jurisdiction: it is inappropriate that the doctrine of ‘issue estoppel’ should even potentially preclude re-examination of this matter. The second decision of the English Court of Appeal, Merchant International Co. Ltd v. Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy (2012),8 con- cerns the finality of a foreign civil judgment, more precisely, this issue: is an English court bound to set aside a default judgment (decision B, granted in recognition of a final foreign judgment, decision A, when decision A has already survived intact following appellate scrutiny in that foreign jurisdic- tion) if decision A is subsequently reversed within that foreign legal system by
5 [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549 (no further appeal to the Supreme Court of the United Kingdom has occurred); S. Harder, ‘The Effects of Recognised Foreign Judgments in Civil and Commercial Matters’ (2013) 62 I.C.L.Q. 441, 456 ff.; A. Mills, ‘From Russia with Prejudice? The Act of State Doctrine and the Effect of Foreign Proceedings Setting Aside an Arbitral Award’ (2012) 71C.L.J. 465. 6 On this doctrine in English law, N. Andrews, Civil Processes (Intersentia, Cambridge, 2013), vol. 1 (Court Proceedings), ch. 16; and on issue preclusion based on foreign judgments, P.R. Barnett, Res Judicata, Estoppel, and Foreign Judgments (Oxford University Press, 2001), ch. 5. 7 [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549. 8 [2012] EWCA Civ 196, [2012] 1 W.L.R. 3036; [2012] 2 All E.R. (Comm) 1; [2012] C.P. Rep. 25; [2012] 1C.L.C. 396; noted M. Ahmed, ‘Setting aside judgment in default, Article 6 of the European Convention on Human Rights and the Principle of Res Judicata’ (2012) C.J.Q. 417 (the Supreme Court of the United Kingdom has refused permission for a further appeal).
II Should the English Courts Simply Follow a Foreign Court’s Declaration that another Foreign State’s Court Lacked Judicial Independence?
Hamblen J.’s decision in Yukos Capital Sarl v. ojsc Rosneft Oil Co. (2011)9 was reversed by the Court of Appeal in the Yukos case (2012).10 Hamblen J. had held that the English Commercial Court, in accordance with the principle of issue estoppel, should acknowledge that an arbitration award-debtor was bound by a Dutch court’s decision. The Dutch court had held that a Russian court lacked independence when it had decided to annul four Russian arbitration awards. The Dutch court, as noted by Hamblen J., had found that the Russian courts in this respect were controlled by the Russian State and that there was evidence that there had been a pattern of non-independent decision-making by Russian courts.11 The Dutch court had proceeded to enforce the Russian arbitral awards. The principal sum (c. U.S. $425 million) had been paid. The present English proceedings were brought to seek recovery of interest (c. U.S. $160 million). This constituted additional compensation attributable to the dilatory payment of the award. Hamblen J.’s decision, on a preliminary point, was effective to open the path to such supplementary enforcement. First it was necessary for the Court of Appeal to confirm that the doctrine of ‘act of state’ does not apply to a foreign court’s decision, and so the path was clear for an English court to examine the propriety of the process by which the relevant foreign court (here the Russian court) had reached the relevant and
9 [2011] EWHC 1461 (Comm), [2012] 1 All E.R. (Comm) 479; [2011] 2 Lloyd’s Rep. 443; [2011] 2C.L.C. 129 (criticised J. Van de Velden, ‘The “cautious lex fori” approach to foreign judg- ments and preclusion: Yukos Capital Sarl v. OJSC Rosneft Oil Co’ (2012) 61 I.C.L.Q. 519). 10 [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549. 11 [2011] EWHC 1461 (Comm), [2012] 1 All E.R. (Comm) 479, at [35].
12 [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549, at [62], [73], [77], [86], [87], [90], [124], [127], [134]; notably at [62], citing Lord Collins in AK Investment CJSC v. Kyrgyz Mobil Tel Ltd [2011] UKPC 7, [2011] 1C.L.C. 205, at [101]: ‘there is no rule that the English court…will not examine the question whether the foreign court or the foreign court system is corrupt or lacking in independence. The rule is that considerations of international comity will militate against any such finding in the absence of cogent evidence’. 13 Art. 1(2)(d) of the EU Jurisdiction Regulation (Council Regulation 44/2001 of 22 December 2001 on ‘jurisdiction and the recognition and enforcement of judgments in civil and com- mercial matters’) provides that the Regulation does not apply to decisions concerning arbitration (the latter topic falling outside the Jurisdiction Regulation’s ambit); the same restriction will apply under the Jurisdiction Regulation (2012) (the relevant parts of which take effect on 10 January 2015). 14 [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549, at [156] and [157].
‘It must ultimately be for the English court to decide whether the recog- nition of a foreign judgment should be withheld on the grounds that that foreign judgment is a partial and dependent judgment in favour of the state where it was pronounced. That is a question so central to the respect and comity normally due from one court to another that to accept the decision of a court of a third country on the matter would be an abdica- tion of responsibility on the part of the English court. On matters of this kind, we should accept our own responsibilities just as we would expect courts of other countries to accept theirs.’
The English Court of Appeal’s decision also avoids the absurdity of giving effect to issue estoppel in respect of one foreign decision (annulling a Russian decision) but denying any estoppel effect to a later foreign decision in which the opposite conclusion had been drawn.16
III A Foreign Court Improperly Invalidates a Foreign Judgment already Recognised by the English Court
In Merchant International Co. Ltd v. Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy (2012),17 the English Court of Appeal (in decision D) refused
15 Ibid., at [159]. 16 Ibid., at [154]: ‘[suppose] not merely that the Dutch courts have determined that the annul- ment decisions are partial and dependent (as they have) but that the courts of another state have determined that the decisions are in fact impartial and independent. By which judgment are the parties in England to be regarded as issue estopped? The answer can hardly be the judgment which happens to be the first in time but must be that the English court will make up its own mind according to its own concept of public order not that of some other state’. 17 [2012] EWCA Civ 196, [2012] 1 W.L.R. 3036; [2012] 2 All E.R. (Comm) 1; [2012] C.P. Rep. 25; [2012] 1C.L.C. 396; noted M. Ahmed, ‘Setting aside judgment in default, Article 6 of the
European Convention on Human Rights and the Principle of Res Judicata’ (2012) C.J.Q. 417.
18 Ibid., at [58]. 19 Ibid., at [59], quoting passages from the European Court of Human Rights, in Pravednaya v. Russia (Application No. 69529/01) 18 November 2004, at [24] to [27]; at [27] in the Pravednaya case, the E.Ct.H.R. said: ‘The procedure for quashing of a final judgment pre- supposes that there is evidence not previously available through the exercise of due diligence that would lead to a different outcome of the proceedings. The person applying for rescission should show that there was no opportunity to present the item of evidence at the final hearing and that the evidence is decisive’. A more recent application of this principle is Agurdino Srl v. Moldova (7359/06) [2012] S.T.C. 1; [2011] S.T.I. 3266, E.Ct.H.R.
State itself.20 In conclusion, the English Court of Appeal criticised as irregular the process whereby the first Ukrainian judgment (already upheld on appeal within that jurisdiction) was rescinded and then repudiated or reversed by successive Ukrainian decisions (in decisions C1 and C2). That process was incompatible with both English public policy and the Strasbourg conception of ‘the rule of law’ in this context.21 Furthermore, Toulson L.J. in the English Court of Appeal referred to such a judgment (that is, the English default judg- ment, and no doubt the earlier Ukrainian money judgment) as an ‘asset’ on which third parties might have relied.22 The decision in the Merchant International case establishes, therefore, that (i) the English courts should not set aside a default judgment entered in England in recognition of a foreign civil judgment, where that decision is final, even though there has been a subsequent rescission of the relevant foreign judgment, provided (ii) that this rescission involved an illegitimate reference to evidence available at the time of the earlier final decision;23 and a fortiori the default judgment will stand if (iii) there is a clear inference that the judg- ment debtor who has obtained this rescission is an emanation of the relevant foreign State. This decision involved relations between two Convention States, both party to the European Convention on Human Rights, namely the United Kingdom and the Ukraine. If, for example, the foreign state were the United States of America or Brazil, Article 6 and the Strasbourg jurisprudence would only apply ‘indirectly’ (as mentioned at notes 35 to 37 below, a watered down and ‘indi- rect’ application of Article 6 demands that the enforcing court should not rec- ognise or enforce foreign judgments which are vitiated by a ‘flagrant’ defect in that foreign court’s procedure or conduct of the case). But the decision in the Merchant International case (2012) appears to rest equally on considerations of English public policy, which apply concurrently with the requirements of the European Convention. Nor does it appear that there had been any concrete steps already taken in England to obtain enforcement of the English default judgment.
20 [2012] EWCA Civ 196; [2012] 1 W.L.R. 3036, at [60]: citing Agrokompleks v. Ukraine (Application No. 23465/03) (unreported) given 6 October 2011, E.Ct.H.R., at [151]. 21 [2012] EWCA Civ 196; [2012] 1 W.L.R. 3036, at [72] and [73]. 22 Ibid., at [78]. 23 See also Floyd J. in Joint Stock Co. Aeroflot - Russian Airlines v. Berezovsky [2012] EWHC 3017 (Ch), at [79], citing Merchant International Co. Ltd. v. Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy [2012] EWCA Civ 196, [2012] 1 W.L.R. 3036. An appeal is outstanding in the Aeroflot case.
Nor does it appear to have been regarded as crucial that the Ukrainian Supreme Court’s decision (decision C1) to rescind the original Ukrainian judg- ment had been based on a reason (the allegation that the assignee company had lacked corporate capacity) which the still later Kiev Commercial Court (in decision C2) had not accepted (in decision C2 a different basis had been adopted for reaching a conclusion that the earlier Ukrainian debt judgment was incorrect). It was sufficient that decision C1 involved adduction of evi- dence or argument which was available at the time judgment A was delivered in the Ukraine. The English Court of Appeal’s decision does not address the situation where the final foreign judgment has already been rescinded, although by an illegiti- mate foreign process, before the English court is asked to give judgment recog- nising the earlier judgment. In that situation it would be a strong application of the rule of law concept to accord finality and hence priority to the first for- eign judgment even though it has already been declared invalid in the relevant foreign jurisdiction by an illegitimately broad re-opening of the original deci- sion. It is significant and arguably crucial that the Court of Appeal regarded a default judgment as an ‘asset’ for the purpose of the European Convention on Human Rights.24 But in the anterior situation where no default judgment has been obtained in England, and instead an application to obtain such a default
24 [2012] EWCA Civ 196; [2012] 1 W.L.R. 3036, at [78], per Toulson L.J.: ‘An English judgment is a form of property which may have real value. The proprietary nature of a judgment was recognised by the Strasbourg court in the Agrokompleks case (Application No. 23465/03) 6 October 2011. To set aside a judgment properly obtained is to deprive the judgment creditor of an asset. It may be just to do so, but it may not be. Third parties may also be affected. A third party may advance money on the security of it. It is not difficult to envisage circum- stances where there could be real injustice to a judgment creditor or a third party by depriv- ing them of the fruits of a judgment properly entered’. See also Toulson L.J. at [60] and [61], noting the argument that ‘a debt established by the original judgment came within the ben- eficiary’s “possessions” within the meaning of Article 1 of the First Protocol’ and that ‘the quashing of the judgment therefore amounted to an interference with the right to peaceful enjoyment of possessions and constituted a violation of Article 1 of the First Protocol, by pre- venting the originally successful party from relying on a binding judicial decision and depriv- ing it of the opportunity to receive the money for which judgment had been given in its favour’; and adding at [61], adopting counsel’s argument, ‘[the rescission of the debt judg- ment in the Ukraine] involved a breach of Article 6 of the Convention and Article 1 of the First Protocol, since the previous Ukrainian judgment in favour of MIC was a possession protected by the Protocol. The English judgment was also a possession protected by the Protocol. For all of those reasons it was right for the English court to recognise the continued existence of the debt’.
IV Concluding Assessment
The central issue in both the cases discussed in this piece is the same, although the precise legal contexts of the litigation are different. In both English cases, the status of a foreign decision fell to be determined by reference to a fundamental principle which went to the root of the foreign court’s integrity. The difference between the two contexts was that in the Yukos case the matter had already been examined by another foreign court, the Dutch court in Amsterdam, whereas in the Merchant International case the primary foreign judgment had been examined and rescinded internally by the courts of the relevant foreign jurisdiction, and it was the ‘transnational’ validity of the deci- sion to rescind which fell to be assessed in England. Yukos Capital Sarl v. ojsc Rosneft Oil Co. (2012)25 concerned a Russian court decision purporting to rescind arbitral awards made against Russian parties. The objection to this raised in England was the allegation that the Russian court lacked judicial independence, and the precise issue was whether a Dutch court’s decision to uphold that allegation should preclude further inquiry in the English courts. In that sense, the issue was triangular. However, the crite- rion employed to determine whether the Russian court lacked judicial inde- pendence would be the English concept of public policy. Merchant International Co. Ltd v. Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy (2012)26 concerned two Ukrainian court decisions which purported to rescind or repudiate a Ukrainian judgment made against a Ukrainian State entity. Here there had been no other foreign court decision and in that sense the issue was bilateral. The criterion used to determine whether the rescission/repudiatory judgments should be respected was primarily the international standard of finality, expressed as a facet of ‘the rule of law’,
25 [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549. 26 [2012] EWCA Civ 196; [2012] 1 W.L.R. 3036; noted M. Ahmed, ‘Setting aside judgment in default, Article 6 of the European Convention on Human Rights and the Principle of Res Judicata’ (2012) C.J.Q. 417.
A Three Lessons Flow from these Cases
Firstly, these English decisions demonstrate that transnational recognition and enforcement of foreign judgments require reference to fundamental standards of judicial integrity,27 such as judicial independence and respect for the finality of civil judgments (provided, of course, the relevant decision is indeed techni- cally a ‘final’ decision). It is appropriate, indeed necessary, that foreign judg- ments should be open to this type of scrutiny. Similar issues arise when determining whether to allow service out of the jurisdiction on the basis of forum non conveniens considerations,28 or to order
27 Here there is a constellation or bundle of procedural requirements; thus Dicey, Morris and Collins, The Conflict of Laws (15th edn., London, 2012), commenting on the Common Law rule that a foreign final judgment is to be accorded recognition or enforced (basic rule 48) notes (at rules 49 ff.) four exceptions; these exceptions are based on (i) the foreign court’s lack of jurisdiction (ii) that the judgment was obtained by the judgment-holder’s fraud or by the court’s fraud; (iii) or recognition/enforcement would be contrary to (English) public policy, including consideration of Article 6 of the European Convention on Human Rights; (iv) the judgment was obtained contrary to natural justice (a ground which also overlaps with Article 6 of the Convention). And in Joint Stock Co. Aeroflot - Russian Airlines v. Berezovsky [2012] EWHC 3017 (Ch), Floyd J. provided this summary, at [52]: ‘The English court will not enforce a judgment if to do so would be contrary to public policy (Dicey’s Rule 44) or contrary to the European Convention on Human Rights (see Dicey at paragraph 14–149), or if the judg- ment was obtained in proceedings which were contrary to natural justice (Dicey’s Rule 45)’. As for (iv), Floyd J, ibid., at [55], noted: ‘The scope of the exception based on natural justice is now recognised to be wider than that afforded by lack of notice and opportunity to be heard. In Adams v. Cape Industries [1990] 1 Ch.433 the Court of Appeal held that there was a breach of the principles of natural justice where a foreign court, in breach of its own proce- dural rules, had given default judgment without judicial assessment on an unliquidated claim. The breach of the principles of natural justice is not, however, to be found in a mere procedural defect in the proceedings of the foreign court, but in the fact that, viewed against the background of the foreign procedural law, a defendant could have a reasonable expecta- tion that the court would obey its own rules: see [1990] 1 Ch.433, 567 F to 568’. 28 As noted at [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549, by Rix L.J.: ‘In Cherney the issue was whether service out of the jurisdiction should be permitted to serve the defendant in Russia. It was held that although Russia was the natural forum for the litigation, there was a risk that substantial
justice would or could not be done in the natural forum so that justice required the case to be tried in England. In coming to that conclusion, the judge considered expert evidence con- cerning the corruption and partiality of the Russian courts and of the interference of the executive in judicial proceedings where the state’s strategic interests were in play, and also evidence about other cases, such as the dispute between Yukos and Rosneft itself. The decision was upheld on appeal: Cherney v. Deripaska (No. 2) [2009] EWCA Civ 849, [2009] 2C.L.C. 408’. 29 On security for costs in English law, N. Andrews, Civil Processes (Intersentia, Cambridge, 2013), vol. 1 (Court Proceedings), ch. 19. 30 As noted, in the Yukos case, [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549, at [62], by Rix L.J.: ‘in Al-Koronky v. Time-Life Entertainment Group Ltd [2006] EWCA Civ 1123, [2007] 1 Costs L.R. 57…this court said that it was entitled to take into account evidence about the lack of independence of the judiciary in the Sudan for the purposes of requiring security for costs in English proceedings’. 31 [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549. 32 [2011] EWHC 1461 (Comm), [2012] 1 All E.R. (Comm) 479; [2011] 2 Lloyd’s Rep. 443; [2011] 2C.L.C. 129, as noted by Hamblen J. at [104] sub-para (8). 33 [2012] EWCA Civ 196, [2012] 1 W.L.R. 3036; M. Ahmed, ‘Setting aside judgment in default, Article 6 of the European Convention on Human Rights and the Principle of Res Judicata’ (2012) C.J.Q. 417. 34 http://www.jiwp.org/mt-scopus-standards-2007-2012/c17lh.
35 Government of USA v. Montgomery (No. 2) [2004] UKHL 37, [2004] 1 W.L.R. 2241, at [27] and [28] (considering the ambit of Pellegrini v. Italy [2002] E.H.R.R. 44), and as noted by Dicey, Morris and Collins, The Conflict of Laws (15th edn., 2012), 14–160; for brief affirmation of the Pellegrini case, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland (45036/98) (2006) 42 E.H.R.R. 1; 19 B.H.R.C. 299, E.Ct.H.R., at [157]). 36 Floyd J. in Joint Stock Co. Aeroflot - Russian Airlines v. Berezovsky [2012] EWHC 3017 (Ch), at [53]: ‘As the European Convention on Human Rights has the force of law in this country, the court naturally has to consider whether the recognition and enforcement of the judgment would be contrary to the European Convention on Human Rights and refuse enforcement if it is: see Pellegrini v. Italy [2002] E.H.R.R. 44 cited in paragraph [14–160] of [Dicey, Morris and Collins, The Conflict of Laws (15th edn., 2012)] . As pointed out in Dicey, and by David Steel J. in Merchant International Co. Ltd v. Natsionalna Aktsionerna Kompania Naftogaz [2011] EWHC 1820 (Comm); upheld on appeal [2012] EWCA Civ 196, this exception is probably better considered as arising through Section 6 of the Human Rights Act, rather than through public policy alone’. Floyd J. added, at [75], (summarising the Merchant International case): ‘The claimant [in the Merchant International case] argued that the English court should not rec- ognise the later judgment of the Supreme Commercial Court which set aside the judgment of 2006 of the Ukrainian Court. David Steel J. concluded that the English court should not recog- nise the later judgment. He rejected a submission, based on Government of USA v. Montgomery (No. 2) [2004] UKHL 37, [2004] 1 W.L.R. 2241, that it was only in cases of “fla- grant” breaches of the European Convention on Human Rights that enforcement could be refused. He held, and with respect I agree, that where the foreign court is a Convention coun- try, the need for a flagrant breach does not arise. That conclusion is supported by Dicey at paragraph 14–149’. 37 [2012] EWCA Civ 196; [2012] 1 W.L.R. 3036, at [88]: ‘I think it is wiser to decide the issue between the parties on the narrower ground that the English court is being asked, on the basis of the 2011 judgment, which was flagrantly in breach of Article 6 of the Convention…’ This presumably refers to the ‘flagrant’ feature that the Ukrainian decision to rescind the Ukrainian debt judgment involved a release from liability in favour of a defendant com- pany owned by the Ukrainian State. However, Toulson L.J. does not appear to have adopted this narrower approach, ibid., at [68] to [82]; his decision is rooted (i) not just in Article 6 (the requirement that the Convention State’s judgment should not be overturned in
Thirdly, there is the triangular conundrum, directly confronted in the Yukos case (2012),38 whether court 3 should follow foreign court 2’s assessment (posi- tive or negative) of the fundamental integrity of foreign court 1 (the court responsible for the primary judgment). It is submitted that the English Court of Appeal was right to decide that the doctrine of issue estoppel should not apply so as to preclude the English courts from re-examining the allegation that court 1 lacked judicial independence. And so the decision given by foreign court 2 would not preclude the English courts from conducting a fresh analysis of this contention. However, the more impressive additional reason for denying that court 3 is precluded by foreign court 2 from re-examining the integrity of the judicial process which led to the main decision by court 1 (whether court 2’s determi- nation was positive or negative) is not the variability of national tests concern- ing judicial independence (although such differences might exist even among mature legal systems),39 but procedural differences in the application of such a test. Thus, even where the national tests match, or uniform ‘transnational’ standards are applied, court 2 and court 3’s successive inquiries into the integ- rity of court 1 will involve two stages of decision-making:
(a) specific findings of fact: court 2 and court 3 must undertake a delicate and contestable appreciation of the primary and specific facts affecting court 1’s conduct of the relevant case and of other specific facts relevant to an assessment of the integrity of its process more generally; and so stage (a) requires factual and expert evidence to establish ‘raw facts’—for example, to examine the allegation that court 1 (or other courts within
circumstances which violate the principle of legal certainty) but (ii) in common law respect, on the basis of ‘public policy’, for the same principle of legal certainty; and in Toulson L.J.’s consideration of (i), the Article 6 limb, he does not refer to the need for a ‘flagrant’ breach. The third judge, Hooper L.J., agreed with Toulson L.J. 38 [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549. 39 It is likely that there will be national differences in the requirements (i) that decisions must be reached by impartial tribunals; and (ii) that decisions must be adequately rea- soned. By contrast, national differences are less likely with respect to (iii) judicial inde- pendence or (iv) the basic requirements of due notice (‘natural justice’, and ‘opportunity to controvert’). On these fundamental requirements, N. Andrews, Civil Processes (Intersentia, Cambridge, 2013), vol. 1 (Court Proceedings), ch’s 25 to 29 (ch. 25, ‘The Five Constellations of Procedural Principle’; ch. 26, ‘Judicial Independence and Impartiality’; ch. 27, ‘Due Notice’; ch. 28, ‘Publicity and Open Justice’; ch. 29, ‘The Duty to Give Reasoned Decisions’).
that court’s jurisdiction) had been subject to threats or undue influence applied ‘top down’ by executive officers, politicians, potentates, or even private gangsters; Rix L.J. in the Yukos case (2012) noted the English requirement that there must be ‘cogent’40 evidence of such unacceptable interference or pressure; and (b) a more general characterisation of the state of justice in the foreign court: just as ‘one swallow does not make a summer’, so an isolated example of State (or other external) interference with the judiciary does not justify a general inference that the relevant legal system lacks judicial indepen- dence; thus stage (a) is merely a prelude for stage (b); at the latter stage the English court must make an overall assessment whether the adminis- tration of justice in the foreign jurisdiction falls short of the relevant standard; thus in the Yukos case (2012) it would be necessary (after the Court of Appeal had opened the door to such a fresh English assessment) for another English court (the matter would be heard at first instance) to decide, without reliance on the Dutch court’s determination, whether the ‘raw facts’ identified at stage (a) provide a cogent basis for inferring or identifying absence of judicial independence within Russia;41 Rix L.J. in the Yukos case referred to the ‘framework’42 within which each national legal system assesses this type of issue; he noted the English requirement that there is no short-cut to stage (b); instead at stage (a) there must be specific instances43 of executive interference with the judicial process, or wrongful pressure applied.
One jurisdiction’s judicial condemnation of another jurisdiction’s judicial arrangements and practices (‘the courts of Ruritania are corrupt/state- controlled/nationally biased, etc’) is likely to have wide-ranging implications
40 [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549, at [150] and [152]: ‘It is thus clear that cogent evidence is required before it is possible to call a foreign court decision partial and dependent. The rele- vant degree of cogency may well differ in different countries’. 41 Proof of some instances of coercion or undue influence by outside officials or unaccept- able deference to outside control might not justify the conclusion that the present case is vitiated by an absence of judicial independence. 42 [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549, at [150]: ‘…It is our own public order which defines the frame- work of any assessment of this difficult question…’ 43 Ibid., at [150]: ‘Our own law is (or may be) that considerations of comity necessitate specific examples of partiality and dependency before any decision is made not to recognise the judg- ments of a foreign state…’
44 In a note on this case, Alex Mills (‘From Russia with Prejudice? The Act of State Doctrine and the Effect of Foreign Proceedings Setting Aside an Arbitral Award’ (2012) 71C.L.J. 465) suggests that the Dutch findings of fact might be accorded effect under the issue estoppel doctrine (but this is an unattractive suggestion for the reasons state in the text above). 45 Perhaps the manifest merits of the Dutch judiciary and of its process seduced Hamblen J. at first instance in the Yukos case into regarding this as an appropriate opportunity to apply the issue estoppel doctrine; but less impressive, indeed shockingly corrupt, legal systems are a matter of common knowledge.
Maimon Schwarzschild**
I Introduction
How much legal autonomy – and how much exemption from otherwise appli- cable laws – ought religious groups to have? When government grows larger and more ambitious, laying down the law in more and more areas of life, these questions arise more often and more urgently. It is a common motif that without some special accommodation or exemp- tion from various laws, it would be difficult for religious communities or even individuals to live religious lives. If public law forbids employment discrimina- tion on the basis of religion, for example, religious groups have an obvious claim for exemption when choosing their clergy, and a claim for autonomy to decide who qualifies to be rabbi, priest, or pastor. The controversy in the United States recently over the Obama Administration mandate to Roman Catholic institutions over abortive drugs and contracep- tion is just one example of the almost limitless situations in which the question of special accommodation can arise. Should Native American or Rastafarian sects be exempted from drug laws that forbid peyote or marijuana? Should Mormons or Muslims be exempted from laws against polygamy? Should Christian Scientists be exempted from laws requiring parents to pro- vide for medical treatment for sick children? Should Sikhs be exempted from laws prohibiting carrying knives in public? Should observant Jewish soldiers or officers be exempted from military uniform rules which would not permit
* This chapter is a different version of a longer paper that is expected to be published in San Diego Law Review. ** 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.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_007
II Establishment Clause Issues
There have been increasing calls in recent years both in the United States and in other Western democracies, not merely for religious exemptions from secu- lar laws, but also for actual power to adjudicate under religious law. There are already steps in this direction with binding arbitration in religious courts: hal- akhic or sharia tribunals, for example, created by Jewish and Muslim groups respectively.1 An extensive network of batei din or rabbinical arbitration courts now exists in the us. More recently, Islamic groups have called for the estab- lishment of comparable sharia courts. With such tribunals, business people can contract to arbitrate future disputes in a religious court; or a couple might sign a prenuptial agreement to arbitrate family disputes, including divorce, under religious law. Going further, there have been suggestions in the academic literature that insular or self-contained religious groups might be given public judicial powers, by analogy to the powers of tribal courts on Indian reserva- tions in the United States.2 The Archbishop of Canterbury recently provoked a flurry when he called, in somewhat general terms, for aspects of Islamic sharia law to be adopted in Britain. The role of religious courts in Israel is sometimes cited as an example of how religious adjudication might function in a demo- cratic society.
1 See Michael A. Helfand, “Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders,” 86 NYU L. Rev. 1231 (2011). 2 E.g. Mark Rosen, “The Radical Possibility of Limited Community-Based Interpretation of the Constitution,” 43 William and Mary Law Review 927 (2002).
In a sense, even special accommodation or religious exemption from secu- lar law implies that religious groups must have some autonomy and power to decide hence in a more or less formal sense, to adjudicate relevant questions by their own standards: to decide at what age Mennonite children should leave school, for instance, or which day is the Sabbath and what are the rules of Sabbath observance; what apparel is religious apparel; what use of peyote is sacramental, and so on. The prospects for actual state (or federal) religious courts in the United States, comparable to the Israeli religious court system, are slim, to put it gen- tly, given separation of church and state under the First Amendment. But to the extent that halakhic or Islamic arbitration awards are enforceable in the secular courts, such religious judgments can have binding force under American law. In a series of articles, Professor Rosen has explored and implic- itly or explicitly endorsed how radically power might be devolved to insular or perfectionist groups, notably religious groups. One model cited by Professor Rosen is the power given to tribal Indian courts on federal Indian reservations in the United States.3 The attractive side of increased religious autonomy is fairly obvious. Generous exemption from secular laws and increased availability and enforce- ability of religious adjudication all provide a framework for people to live more
3 Rosen, supra. And in a recent article, Professor Rosen suggests that perfectionist groups should be eligible for self-governing regulatory authority in a liberal society, provided (1) they have a peaceful disposition toward their non-perfectionist neighbours and do not seek to compel others to live in accordance with their views of the good, (2) those raised in religious perfectionist communities are educated to respect the essentials of liberal society: this requirement to be understood modestly so as not to interfere with religious autonomy “unnecessarily,” and (3) members of the religious communities retain some right to opt out: this, too, to be understood modestly lest it dilute the power of the group a softer opt-out meaning no more than the absence of physical restraints against would-be defectors or per- haps merely the knowledge that there exists a different world out there. Mark D. Rosen, “The Educational Autonomy of Perfectionist Religious Groups in a Liberal State,” 1 Journal of Law, Religious & State 1 (2012). This is a thoughtful and nuanced article, but it seems to me that Professor Rosen greatly underestimates the separatist and socially fragmenting tendencies that such autonomy for religious-perfectionist communities would foster over time, and also the potential for abuse and petty (or not so petty) tyranny by the empowered authorities of such groups over their members. For an example of how newly-granted group autonomy can promote separatism and social break-up, see Charles King, “The Scottish Play,” 91 95) Foreign Affairs 113 (September/October 2012) for an account of how devolution of power to Scotland, beginning in the 1990s after many centuries of Union, fostered a separatist independence movement, virtually non-existent at the outset of devolution, which now seriously threatens to break up the United Kingdom.
III Free Exercise Issues
In the United States, these questions as with so many things in American life are often framed as Constitutional issues. The First Amendment says Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. So perhaps some or all of the claims for religious exemp- tion must be granted in order to satisfy free exercise. On the other hand if they are granted, but people who might want to smoke peyote, marry polygamously, and/or carry sharp knives in public for non-religious reasons are prohibited from doing so, this can be said to be an establishment of religion: it would cer- tainly discriminate in favour of religion and against people who might want exemptions from the law for secular (but perhaps for serious or conscientious) reasons. Free exercise and establishment, especially if each is construed broadly, notoriously threaten to collide with one another. The United States Supreme Court has followed a notably up-and-down course in recent decades about special religious accommodation. In two famous cases decided in 1963 and 1972, the Court held that the First Amendment requires exemptions from generally applicable federal and state laws unless there is a compelling state interest (or something close to it) for enforcing the law: a constitutional standard which usually means the government has to give way to a claim under the Bill of Rights. The first case, Sherbert v Verner, involved a Seventh Day Adventist who wanted an exemption from a requirement to be available for work on Saturday as a condition of receiving unemployment ben- efit; the second, Wisconsin v Yoder, involved an Amish community that wanted
4 Gittin 88b; but see Sanhedrin 23a. See generally J. David Bleich, Survey of Recent Halakhic Periodical Literature: Litigation and Arbitration Before Non-Jews, 34:3 Tradition 58 (2000); Michael A Helfand & Yaacov Feit, Confirming Piskei Din as Arbitration awards, 61 Journal of Halacha & Contemporary Society 5 (2011). Of course Jewish law does not, because it cannot, prescribe to what extent (if at all) non-Jewish secular courts will enforce halakhic arbitration judgments in cases where the losing party does not submit voluntarily to the judgment.
5 Sherbert v. Verner, 374 US 389 (1963); Wisconsin v. Yoder, 406 US 205 (1972). Justice William O. Douglas provocative dissent in Yoder suggested that a high school child may or may not want to be harnessed for life to the Amish community: [h]e may want to be a pianist or an astronaut or an oceanographer. To do so, he will have to break with the Amish tradition. The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we honor today. 6 Employment Div., Dept. of Human Resources v. Smith, 49 US 872 (1990). 7 Pub. L. No. 103–141, 107 Stat. 1488 (codified at 42 USC 2000bb to 2000bb-4 (2006)). 8 City of Boerne v. Flores, 521 US 507 (1997). 9 See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 US 418 (2006) (under rfra the federal government can only seize and preclude the use of an otherwise-illegal substance for religious ceremonial use upon a compelling state interest). 10 Smith and the ensuing Supreme Court decisions are about whether religious exemptions are required as a matter of Free Exercise by the Constitution. But federal or state statutes are free to grant more special accommodation than the Constitution (minimally) requires; so long, of course, as the special accommodation isn’t viewed as rising to the level of an Establishment of religion.
IV Reflections on Meeting the Challenges
When religious autonomy is enshrined in secular law, however, there are potential and actual problems and drawbacks as well. In the first place, the substance of religious law may be at odds with the values of a liberal society. This arises most obviously on the numerous points where Jewish or Islamic law, for example, are in-egalitarian as between men and women. Divergences from liberal norms can arise in religious commercial law and in other areas as well. For example, it may conflict with federal and state antitrust laws in the United States for batei din or rabbinic arbitration tribunals to enforce the halakhic principle of hasagat gevul which restricts business competition that might put an existing business out of business.16 A plausible response to this sort of concern is that a liberal society is plural- ist and does not require everyone to live by liberal norms: indeed that it would be illiberal to do so. So long as there are ample choices and full freedom to
11 See Employment Div. v. Smith, supra, at 913 n. 5 (Blackmun, J., dissenting). 12 See 26 USC 3127 (2006). 13 See 10 USC 774 (2006). 14 42 USC 2000e-1. 15 See generally Nancy L. Rosenblum, “Amos: Religious Autonomy and the Moral Uses of Pluralism,” in Nancy L. Rosenblum (ed.), Obligations of Citizenship and Demands of Faith, 165, 183–187 (2000) (arguing that broadened religious accommodation of employers under the amended provisions of Title VII undesirably enables the use of economic power to compel adherence to religious practice). 16 See generally Simcha Krauss, Hasagath Gvul, 29 Journal of Halacha & Contemporary Society 5 (Spring 1995).
17 See Richard Boyd, Uncivil Society: The Perils of Pluralism and the Making of Modern Liberalism (Lexington Books 2004). 18 Compare Goldman v. Weinberger, 475 us 503 (1986) (upholding prohibition of the kippah) with State v. Hodges, 695 S.W.2day 171 (Tenn. 1985) (quashing a contempt citation and
If religions are granted exemption from otherwise applicable laws, and even a degree of autonomous authority, there is an obvious temptation for all sorts of groups to claim to be religions and to demand special privileges and powers. A well-known but by no means unique example is the Church of Scientology, which began as an entirely secular therapy-marketing enterprise founded by the science-fiction writer L. Ron Hubbard, but which went on to claim reli- gious status, partly in hopes of a tax exemption. Despite its considerable crimi- nal history by then, Scientology was eventually granted tax exemption in 1993 as a bona fide religion.19 There is a further point, which perhaps deserves more emphasis than it sometimes receives. If the state offers a significant degree of religious auton- omy power over jobs, resources, and decisions that affect people’s lives it can encourage the take-over of religious communities by authoritarian and fac- tional religious leaders. This may partly be due to the attraction that autono- mous power might have for the most enthusiastic people within a religious group or its leadership, who may tend to be the most extreme people. But autonomy has a perverse logic of its own, which more directly encourages extremism: namely, if autonomous rulings are not going to differ from the rules of secular, liberal society, then why is it important that the religious group should have autonomy? Whereas the more radically the group’s rulings do dif- fer including the rulings of religious arbitration courts the more necessary and justified the claim for autonomy. Once there is autonomy, in other words, there is liable to be a cascade effect towards more distinctive, which is to say more extreme, positions on the part of the autonomous institutions and those who steer them, if only to vindicate the idea that autonomy is necessary in the first place.20 Extensive religious autonomy, in short, can lead to the creation with state approval of islands of authoritarianism in an otherwise free and democratic society. It can also promote corruption of various kinds, which often accompa- nies authoritarianism. Corruption, not on a modest scale, has certainly been
remanding to the trial court for further consideration of the religious claim for the chicken costume). In a word, the kippah lost. The chicken costume, at least tentatively, won. 19 See Hugh B. Urban, The Church of Scientology (Princeton University Press 2011). 20 The religious courts in Israel are a cautionary example in this context. The State of Israel, as is also the case in many Muslim-majority countries, maintains a religious court system within the state framework, with jurisdiction over family law, including marriage and divorce and related questions of personal status: even who can be buried in a Jewish cemetery.
21 Abraham Lincoln, First Inaugural Address (1861).
Shimon Shetreet*
I Introduction: The Changing Constitutional Infrastructure in Europe
The European Union (“eu”) won the Nobel Peace Prize in 2012. There are cer- tainly arguments to be made regarding whether the political partnerships of countries should receive such a prize, but if they are so entitled then the eu richly deserved the accolades for building a noble culture of peace in Europe after the Second World War. The European Union now counts 28 countries beneath its wings, a remark- able achievement in itself. The shining colors of this great achievement how- ever, are now clouded by an assortment of challenges. Currently, the eu is bogged in the midst of resolving the Eurozone crisis, the collapse of the Greek economy, and the further economic crises in weaker parts of the union such as Spain,1 Portugal,2 and Italy.3 There is also growing Euro-skepticism regarding the endeavor from a practical standpoint, and calls for reassessing the desir- ability of membership in the eu plague the award podium. There is talk of a possible referendum in the United Kingdom4 and the leader of the Dutch right-wing Freedom Party, Geert Wilders, is vehemently advocating a swift exit from the eu.5 This article focuses discussion on the benefits of the eu, namely, it has demonstrated a commitment to human rights, integrated it into its
* Shimon Shetreet, llb, llm, Hebrew University, mcl, dcl, University of Chicago, holds the Greenblatt Chair of Public and International Law at the Hebrew University of Jerusalem, and is past chairman of the Sacher Institute of Legislative Research and Comparative Law. He is the author and editor of many books and articles, and President of the International Association of Judicial Independence and World Peace. Email: [email protected] .ac.il. 1 “The Spanish Economy: On Being Propped Up” The Economist 25 May 2013. Print. 2 “Portugal and the Euro: Floundering On” The Economist 27 June 2013. Print. 3 “Italian Government Debt: Well Oiled” The Economist 5 Aug. 2013. Online. 4 “UK’s eu referendum moves a step closer” Benjamin Fox. eu Observer 7 June 2013. Online. 5 “The Dutch and the eu: A Founding Member’s Apostasy.” The Economist 3 Aug. 2013. Print.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_008
II The Integration of Human Rights Provisions in the Treaties of the European Union
In recent decades, we have witnessed that international human rights law has a significant impact upon domestic laws and more frequent recourse to
6 Treaty on European Union, 7 February 1992, O.J. C 191 (entered into force 1 November 1993) [“TEU” or “Maastricht Treaty”]. 7 Treaty of Amsterdam, 2 October 1997 O.J. C 340 (entered into force 1 May 1999); Treaty of Nice, signed on 26 February 2001 O.J.C 80 (entered into force on 1 February 2003).
III The Contribution of the Jurisprudence of the European Court of Justice to the Adoption of Human Rights Standards in the Constitutional Infrastructure of the European Union
Running parallel to the rather gradual process of adopting a series of treaties and the charters, the ecj has emerged as a major player in the development of eu human rights law. The ecj initially rejected jurisdiction over human rights matters.9 However, in Stauder, the ecj established fundamental human rights as general principles of Community law that the Court will protect.10 The ecj’s development of human rights law has been that of judge-made law.11
8 Treaty on European Union, 7 February 1992, O.J. C 191 (entered into force 1 November 1993) [“TEU” or “Maastricht Treaty”]; Treaty of Amsterdam, 2 October 1997 O.J. C 340 (entered into force 1 May 1999); Treaty of Nice, signed on 26 February 2001 O.J.C 80 (entered into force on 1 February 2003). 9 The ecj originally refused jurisdiction to engage in judicial review based on fundamental rights. In Stork & Co., the Court held that under Article 8 of the ECSC Treaty, it is only required to apply Community law and will not consider rights entitlements under national constitutions. Stork & Co. v. High Authority of the European Coal and Steel Community, Case 1/58, [1959] ecr 17 at para. 4(a). Subsequent case law reversed this decision. 10 Erich Stauder v. City of Ulm, Sozialamt, Case 29/69 [1969] E.C.R. 41 (eur-Lex), Grounds of Judgment at para. 7. 11 Compare Chava Landau, “A New Regime of Human Rights in the EU?” 10 Eur. J.L. Reform (2008) 557.
The concomitant relationship to the echr and ECtHR can be divided into three stages: first, an initial stage where rights are discussed as principles in general terms;12 second, an intermediate stage where specific mention of Convention rights are used in judgments13 and third, an advanced stage in which the ecj refers to the jurisprudence of the ECtHR, engaging in more explicit judicial dialogue with that court.14
12 A prominent ecj human rights case was Internationale Handelsgesellschaft, where the ecj identified the constitutions of member states as the inspiration for rights, albeit “within the framework of the structure and objectives of the community.” The ecj origi- nally refused jurisdiction to engage in judicial review based on fundamental rights. In Stork & Co., the Court held that under Article 8 of the ECSC Treaty, it is only required to apply Community law and will not consider rights entitlements under national constitu- tions. Stork & Co. v. High Authority of the European Coal and Steel Community, Case 1/58, [1959] ecr 17 at para. 4(a). Subsequent case law reversed this decision. In J. Nold, Kohlen- und Baustoffgrohandlung v. Commission, Case 4/73 [1974] ecr 491 at para. 13, the Court found that international treaties for the protection of human rights could [also] supply guidelines to follow. It was not clear, either then or now, what specific “constitu- tional traditions” are common to all Member States. 13 In 1974, France ratified the echr: In Rutili v. Ministre de l’Interieur, Case 36/75 [1975] ecr 1219, the ecj cited the echr for the first time, finding that it supplied “guidelines which should be followed within the framework of Community law.” In Liselotte Hauer v. Land Rheinland-Pfalz, Case 44/79, [1979] ecr 3727, the ecj determined that these “general prin- ciples” were minimum standards from which Member States may derogate if the domes- tic regime provides greater rights protection. In Johnston v. Chief Constable of the Royal Ulster Constabulary, Case C-222/84, [1986] ecr 1651 at para. 18, the ecj acknowledged that the Convention has a special significance in determining what the “general principles” are as regards to human rights. In more recent cases such as Schmidberger v. Austria, Case C-112/00 [2003] ecr I-5659, and Omega Spielhallen v. Bonn, Case C-36/02 [2004] ecr I-9609, The ecj has gone so far as permit human rights to restrict fundamental freedoms explicitly enshrined in the treaties. ecj activity left open a question of enormous signifi- cance: whose interpretation of these rights should prevail? The ecj has never acknowl- edged being bound by the case-law of the ECtHR. The ecj explicitly referred to ECtHR jurisprudence for the first time in1996 in P v. S and Cornwall County Council, Case C-13/94 [1996] ecr I-02143 at para. 16. 14 In practice the ecj has taken this body of case-law very seriously, even going so far as to re-consider its past decisions in light of developments in Strasbourg. Notably in Roquette -res (2002), the ecj reconsidered its 1989 Hoechst decision in light of the ECtHR’s deciטFr sions in Niemietz concerning the search of a business premises under Article 8 of the echr. When the ecj originally ruled on this issue in Hoechst AG v. Commission, Cases 46/87 and 227/88, [1989] ecr 2859 at para. 18, it noted that there was no applicable ECtHR jurisprudence. It did not find that business premises were protected under Article 8. Hoechst was criticized for failing to consider potentially relevant ECtHR cases. In 1992, the
IV The Lisbon Treaty: The Final Step in the Integration of Human Rights
The complete integration of human rights and democratic values in the eu constitutional infrastructure was culminated in the 2009 Lisbon Treaty Article 6 which provides as follows:
1. The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be inter- preted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. 2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties. 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.15
This treaty completes the integration of human rights and democratic values into the eu constitutional infrastructure completing the third pillar, that of cultural peace, or values peace. As to the building of the fourth pillar, the religious peace, the eu has debated at length the issue of its religious identity. Reference to God was debated and rejected, similarly an express reference to the Christian religion was not made. The compromise struck, both in the preamble to the 2004 Constitution which
ECtHR unambiguously found in Niemietz v. Germany, Series A, no. 251 (1992) 16 EHRR 97 at para. 31 that business premises were protected under Article 8. Subsequently the ecj to reversed itself in Roquette Frυres, finding that Article 8 did apply to protect the inviolabil- ity of business premises from search. 15 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 17 December 2007, O.J. C 306/01 (entered into force 1 December 2009) [“Lisbon Treaty”].
V Conclusion: Major Challenges Facing the eu
The eu has faced in recent years in addition to economic problems and Eurozone crisis, two challenges relating to its identity and constitutional struc- ture. One is the issue of the potential accession of Turkey into the eu. The drafting of a European Constitution is another. As a majority Muslim society Turkey has provoked fierce debate about what the religious and cultural boundaries of Europe should be.16 Furthermore, efforts to introduce an eu Constitution have provoked a similar crisis.17 Member States attempting to define a common heritage of European countries has proven a difficult and emotional task.18 At the heart of both crises is a debate about the idea of Europe, and its cultural identity.
16 In an interview with Le Monde, Val’ry Giscard d’Estaing, the former French president and author of the eu draft constitution, said the admission of Turkey would be “the end of the European Union.” According to Giscard, Turkey has “a different culture, a different approach, a different way of life…its capital is not in Europe, 95% of its population live outside Europe. It is not a European country.” Stephen Castle, “Giscard predicts ‘end of EU’ if Turkey joins” The Independent (9 November 2002), online: The Independent
The transformation of Europe from an economic union to a union grounded in a shared set of values of cultural and religious heritage is the product of both political and judicial activities. To some extent, these activities have followed separate tracks of development. The 2009 Lisbon Treaty undoubtedly opened the door to a convergence of these two tracks.19 The Treaty reshaped the juridi- cal landscape that courts interpret and made the Charter of Fundamental Rights a binding eu law. Perhaps most importantly, it required the eu to accede to the European Convention on Human Rights (echr). This course of events placed human rights at the centre of European integration. However, the Lisbon Treaty text remains ambiguous in many respects and the introduction of a Charter and accession to the echr should increase the scope of integra- tion. So, while far more realized than its economy-based predecessor, the insti- tutional design of human rights protection in Europe is far from ideal.
19 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 17 December 2007, O.J. C 306/01 (entered into force 1 December 2009).
Arianna Vedaschi**
I Introduction
In December 2012 the European Court of Human Rights delivered its final judgment on the (in)famous case El-Masri V. Macedonia.1 Though the court had addressed the widely debated practice of extraordinary renditions2 in at
* I would like to thank Veronica Gaffuri and Gabriele Marino whom I am indebted to for their invaluable support with research. I would also like to express my gratitude to friend and col- league Justin Frosini for his useful comments and to professor Giuseppe F. Ferrari for his constructive critical observations. ** Arianna Vedaschi is Associate Professor of Public Law at Bocconi University, Milan. She is the author of À la guerre comme à la guerre? La disciplina della guerra nel diritto costi- tuzionale comparato (Giappichelli 2007); Istituzioni europee e tecnica legislativa (Giuffré 2001) and co-editor of several books, including Secrecy, National Security and the Vindication of Constitutional Law, (Elgar 2013) with D. Cole and F. Fabbrini. She has writ- ten widely in constitutional and comparative public law with emphasis on counter- terrorism measures and human rights. She was a Visiting Professor and Scholar at several Universities in Europe, the USA and Latin America. She is a registered Attorney-at-Law in Italy, Milan Bar. 1 El-Masri v. the Former Yugoslav Republic of Macedonia [gc] no. 39630/09, 13 December 2012. 2 According to the European Commission for Democracy Through Law (Venice Commission), Opinion on the International legal obligations of Council of Europe Member States in respect of secret detention facilities and inter-state transport of prisoners, no. 363/2005, 17 March 2006 at [30], extraordinary rendition is a: “process of one State obtaining custody over a per- son suspected of involvement in serious crime (e.g. terrorism) in the territory of another State and/or the transfer of such a person to custody in the first State’s territory, or a place subject to its jurisdiction, or to a third State,” available at www.venice.coe.int. See also Irish Human Rights Commission (ihrc), “Extraordinary Rendition: A Review of Ireland’s Human Rights Obligations” (2007), p. 7 ff., available at http://www.ihrc.ie. For the extraordinary ren- dition practice see also: S. Egan, “Extraordinary Rendition and the Quest for Accountability in Europe” Working papers in Law, Criminology & Socio-Legal Studies, research paper no. 05/2012, University College Dublin, available at http://ssrn.com; M.L. Satterthwaite, “The Legal Regime Governing Transfer of Persons in the Fight Against Terrorism” in N. Schrijver,
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_009
L. Van Den Herik, “Counter-Terrorism and International Law: Meeting the Challenges” (2007) 54 Netherlands International Law Review 572; L. Fisher, “Extraordinary Rendition: the Price of Secrecy” (2008) 57 Am. U.L. Rev. 1405; M.L. Satterthwaite, “Rendered Meaningless: Extraordinary Rendition and the Rule of Law” (2007) 75 George Washington Law Review 1333; D. Weissbrodt, A. Bergquist, “Extraordinary Rendition and the Torture Convention” (2006) 46 Va. J. Int’l. L. 585; D. Weissbrodt, A. Bergquist, “Extraordinary Rendition: A Human Rights Analysis” (2006) 19 Harvard H.R.L. J. 123; P. Gaeta, “Extraordinary Renditions e immunità dalla giurisdizione penale degli agenti di Stati esteri: il caso Abu Omar” (2006) Riv. dir. Internaz. 126; D. Huyck, “Fade to black: Extraordinary Renditions Claims” (2005) 17 Minn. J. Int’l L. 435. 3 It is common knowledge that the right to the truth is recognised by international and European human rights law; in particular, at the United Nations level, see Article 24, para. 2, International Convention for the Protection of All Persons from Enforced Disappearance, 2006; and the Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity. See also United Nations Human Rights Council, Resolution 9/11, adopted on 24 September 2008 and Resolution 12/12, adopted on 12 October 2009. On El-Masri case: T. Scovazzi, “Considerazioni in tema di segreto di Stato e gravi violazioni dei diritti umani” in G. Venturini, S. Bariatti (eds.), Individual Rights and International Justice (Giuffré 2009), pp. 885 ff.
II The El-Masri Case
Khalid El-Masri, a German citizen born in Kuwait to Lebanese parents, was stopped by Macedonian border guards while entering the former Yugoslav Republic of Macedonia (hereinafter Macedonia) from Serbia in December 2003 on alleged irregularities of his travel documents. After being questioned, he was transferred against his will to Skopje, where he was compelled to remain locked-up in a motel room. There, El-Masri was repeatedly interrogated by Macedonian officers (in a language different from his mother tongue) about his supposed links with the 9/11 hijackers. During his unlawful detention in Macedonia, he refused food for ten days to protest against the psychological mistreatment he was being subjected to. After twenty-three days he was ren- dered to a commando of American officers (probably belonging to the Central Intelligence Agency) at Skopje airport, where he was tortured (by means of a particular technique, called “capture-shock”)4 before being forcibly flown to Afghanistan via Baghdad. He was held in custody at Salt Pit (a brick factory in northern Kabul) for four months, where he was repeatedly tortured and subjected to physical and psychological mistreatment in order to obtain information about his supposed
4 “Capture-shock,” described as a standardised procedure in a declassified cia Memorandum released in 2004, is a process aimed at breaking prisoners’ will by inducing a state of “learned helplessness and dependence,” which is conducive to effective interrogation. “During the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods” in order to “contribute to [his] physical and psychological condition prior to the start of interrogation.” Several violent techniques were envisaged by the Memorandum, such as “walling” and stress positions. The specific aim of the procedure can be synthesised in the use of both “physical and psychological pressures in a comprehen- sive, systematic, and cumulative manner to influence behaviour, to overcome a detainee’s resistance posture, breaking their physical and moral resistance.” See also Central Intelligence Agency, “Memo to the Department of Justice Command Centre-Background Paper on CIA’s
A The El-Masri Case: Judicial Review of the State Secrets Privilege before US Courts
With the support of the American Civil Liberties Union, El-Masri filed a com- plaint in the United States Court for the Eastern District of Virginia, but his case was dismissed by both the District Court and the Court of Appeals on the basis of the State secrets doctrine.8 A brief analysis of the case before US courts is helpful in understanding how, according to American judges, national security should always prevail over the rights of torture victims to an effective judicial remedy, including an official public recognition of their sufferings. Whilst addressing the right to the truth, US courts admitted the “possibility” that a secret rendition program does exist. Judicial review by means of a civil suit, however, remains banned by the State secrets privilege.9
combined use of Interrogation techniques,” 30 December 2004, available at http://www.aclu .org/torturefoia/released/082409/olcremand/2004olc97.pdf. 5 In particular with Muhammed Atta and Ramzi Bin Al-Shibh. On the matter, see also D. Priest, “Wrongful Imprisonment: Anatomy of a CIA Mistake” The Washington Post 04-12-2005, avail- able at www.washingtonpost.com; S. Shane, “German Held in Afghan Jail Files Lawsuit” The New York Times 07-12-2005, available at www.nytimes.com; D. Priest, “The Wronged Men” The Washington Post 29-11-2006, available at www.washingtonpost.com. 6 For more details see European Court of Human Rights, application no. 39630/09, Statement of facts, 8 October 2010, available at hudoc.echr.coe.int. 7 See “Germany issues CIA arrest orders” BBC News 31-01-2007, available at www.bbc.co.uk. 8 El-Masri v. Tenet 437 F. Supp. 2d (E.D.Va. 2006); El-Masri v. United States 479 F. 3d (4 Cir. 2007). See M.L. Satterthwaite, “The Story of El Masri v. Tenet: Human Rights and Humanitarian Law in the ‘War on Terror’” (2008) New York University School of Law, Working Paper, available at http://ssrn.com. 9 For State secrets privilege see D. Cole, F. Fabbrini, A. Vedaschi, Secrecy, National Security and the Vindication of Constitutional Law (Elgar 2013).
In addressing the legitimacy of the State secrets privilege asserted by the US Government in El-Masri v. Tenet,10 both the United States District Court for the Eastern District of Virginia and the United States Court of Appeals for the Fourth Circuit adopted a formal three-step scrutiny, thus upholding the Government’s assertion and dismissing of the case. Federal judges made exten- sive use of the so-called Reynolds doctrine,11 first drawn up by the Supreme Court in 1953, thereby starting with the assessment of the procedural fairness of the Government’s assertion, then evaluating the legitimacy of the assertion in the present case and concluding with a prognosis on the feasibility of the whole trial, without forcing the government to disclose evidence which it deems secret. Despite initial appearances, the State secrets privilege goes far beyond the bounds of evidentiary rules to become a more general rule aimed at safeguard- ing the Executive’s attribution, thus aspiring to the condition of a constitu- tional precept. Keeping in mind this idea of State secrets, both the District and the Appeals Court stressed the importance of the authority to assert the privi- lege, vested only in the Executive Branch. In particular, only the head of the Executive’s department or agency involved in the case at issue is entitled to assert the State secrets privilege before the courts. Such a procedural rule, in the opinion of the courts, is intended to guarantee the direct responsibility of the Executive Branch for the assertion and the proper weighting of the asser- tion itself, which should not be used without great caution. In regard to El-Masri, the privilege was claimed and asserted by the Director of the Central Intelligence Agency (the Executive agency directly involved in the case) in two separate sworn declarations, one of these classified “Judge’s Eyes Only” and the other made public. According to both of the courts, as a consequence, the assertion was correct from a procedural point of view, since the Director of the Central Intelligence Agency was indeed vested with the authority to make such an assertion, serving as the head of an Executive agency. In the second step of the analysis, federal judges addressed the concrete legitimacy of the assertion in the case at issue, by determining whether the information for which the privilege was claimed qualified as a State secret. This is a particularly delicate issue, since an effective control should be bal- anced with the necessity not to jeopardise the very purpose of the State secrets privilege.
10 See El-Masri v. Tenet, cit. 11 See United States v. Reynolds 345 US 1 (1953).
In the words of the District Court, if validly asserted, the State secrets privi- lege permits the Government to “block discovery in a lawsuit of any informa- tion that, if disclosed, would adversely affect national security.”12 In particular, the possible harm, against which protection is sought by invocation of the privilege, includes impairment of the nation’s defence capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments. According to both the District and the Appeals Courts, judicial scrutiny should be proportionate to the private interests at stake: if the claim brought by the private parties appears to be based preponderantly on the information which the Executive seeks to keep secret, the judges should perform a closer review, possibly gaining access to that very same information in order to assess its eligibility as State secret. This assumption should not, however, mislead the interpreter in understand- ing the core of the judicial review on the State secrets privilege. According to the courts, the privilege is, and shall remain absolute, since it protects the Executive’s constitutional attributions. No balance between national security and other interests (even the most important) can be determined by judges, the safeguard of that primary interest being the exclusive province of the Executive Branch. Judicial review should only assess whether the Executive’s assertion can be deemed as legitimate, given the specific interest the State secrets privilege is expected to protect (i.e. whether the concealed evidence qualifies as State secret, according to the law). Once satisfied with their scrutiny, the judges should halt and uphold the Government’s assertion without any further inquiry or evaluation. In El-Masri, the courts found the claim contained in the sworn declarations of the Director of the Central Intelligence Agency legitimate, thus upholding governmental positions against the plaintiff. However, neither the District nor the Appeals Court reveal, within the published judgement, the reasoning underlying their decision. Such reasoning, as one can easily understand, was mainly based on the sworn declaration labelled “Judge’s Eyes Only,” whose con- tent could not be made public. We are here encountering the particular case of a wholly circular public reasoning (which requires an act of faith in the courts’ reasonable assessment), still representing the only viable solution for the courts to “review the secret on the basis of secrets.” We cannot go any further in the evaluation of the constitutional legitimacy given that this solution is the only way to overcame an otherwise insuperable obstacle.
12 See Ellsberg v. Mitchell, US Court of Appeals for the District of Columbia Circuit (1986).
Having regard to the plaintiff’s allegations, surprisingly both the courts held, along with the public declarations made by senior governmental officials, that a “clandestine rendition program” and “secret detention sites” might in fact exist. Moreover, it is also on the basis of this possibility that federal judges found the assertion of the State secrets privilege to be legitimate, since forcing the disclosure of evidence related to such clandestine operations would have impaired national security by revealing the plans, organization and procedures of intelligence agencies. In the third step of the analysis, once the fairness and legitimacy of the claim were ascertained, the judges needed to evaluate whether the action could be taken further without the risk of revealing the evidence covered by the State secrets privilege. Considering the centrality of the evidence which the cia wanted to keep secret, the District Court dismissed the plaintiff’s claim, considering the trial unfeasible. This particular point represented the main focus of the El-Masri’s appeal. According to the plaintiff, the extensive media coverage of the alleged rendition program and his case in particular, as well as the existence of numerous official reports on extraordinary renditions issued by primary international bodies such as the Council of Europe and a number of ngos (non-governmental organisations), could have allowed the court to proceed regardless of the evidence withheld by the Government of the United States. However, the Court of Appeals upheld the judgement of the District Court stressing that the judges’ evaluation was correctly based on the feasibil- ity of a civil trial without the risk of revealing concealed evidence and not on the abstract ability of information in the public domain to support the plain- tiff’s claims. Furthermore, the prosecution of the lawsuit would have forced the defendants to reveal that very same secret evidence in order to exert an effective defence. It is worth noting that pending the judgment before the Court of Appeals, the so-called “rendition program” pursued by the United States of America and its allies, became a recognised and historical truth thanks to the detailed report of the Parliamentary Assembly of the Council of Europe13 and to the partial admissions made by President George W. Bush. Nevertheless, appellate judges adopted a position of substantive deference to the Executive, com- pletely disregarding the probative value of the wide range of information
13 Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights, “Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states” Draft report, 07-06-2006, rapporteur: Dick Marty, Doc. 10957, available at www.assembly.coe.int.
B The El-Masri Case at the European Court of Human Rights: Outlining the Right to the Truth
In July 2009, assisted by the Open Society Justice Initiative, El-Masri lodged a complaint against the Republic of Macedonia with the European Court of Human Rights, seeking compensation for the torture and other cruel, inhuman and degrading treatment he was subjected to while he was detained in Macedonia and Afghanistan.15 The court deemed as credible the version of events reported by El-Masri and, in contrast, considered completely unreliable the official position held by the Macedonian Government. In fact, El-Masri’s reports were detailed, precise, and characterised by a high degree of coherence as to times and places of his enforced disappearance. Furthermore, all the details of his statement were confirmed by national and international inquiries that were ordered to shed light on the case. In particular, the court referred to the results of two separate international inquiries led by Dick Marty and Claudio Fava for the Parliamentary Assembly of the Council of Europe16 and the European Parliament17 respec- tively, in addition to the parliamentary inquiry carried out by the German House of Representatives (Bundestag) and the judicial inquiry performed by the Munich Prosecutor.18 Additionally, some of the evidence provided by the Macedonian Government itself did nothing but confirm El-Masri’s statements.19 The court proceeded accordingly by considering El-Masri’s
14 Cert. denied El-Masri v. United States 552 US 947 (2007). 15 Application 39630/09, cit. 16 Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights, “Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states” cit. and “Secret detentions and illegal transfers of detainees involving Council of Europe member States” Draft report, 11-06-2007, rapporteur: Dick Marty, Doc. 11302, available at www.assembly.coe.int. 17 European Parliament, Temporary Committee on Use of European Countries by the cia, “Alleged use of European countries by the CIA for the transportation and illegal detention of prisoners” report, 14-02-2007, rapporteur: Claudio Fava, Doc. A6-0020/2007, available at www.europarl.europa.eu. 18 See El-Masri v. Macedonia at [159]. See also Bundestag Committee of Inquiry, “Findings of the First Investigative Committee of the Sixteenth Legislative Period,” available at http:// dipbt.bundastag.de. 19 See para. [161]–[164].
20 See, in particular, para. [152]–[154], [165] and [199].
21 About the “real risk doctrine” see Othman v. the United Kingdom, no. 8139/09, at [233], 17 January 2012. 22 See El Masri v. Macedonia, at [175].
23 Of which extraordinary renditions can be deemed as a particular “sub-species”. 24 In the Court’s words: “The right to the truth inured to the benefit of the direct victims of the violation, as well as to their relatives and to society at large. Rights holders were enti- tled to seek and obtain information on various issues, namely the identity of the perpetra- tors, the progress and results of an investigation and the circumstances and reasons for the perpetration of violations. On the other hand, the right to the truth placed compre- hensive obligations on the State, including duties (1) to carry out an effective investiga- tion; (2) to give victims and their relatives effective access to the investigative process; (3) to disclose all relevant information to the victims and the general public; and (4) to pro- tect victims and witnesses from reprisals and threats” (emphasis added). 25 “[T]he victims, their families and society as a whole [should] know the truth regarding the violations suffered.” 26 “Besides compensation, other important components which addressed the long-term restorative aims of reparation must also be provided, including satisfaction (acknowledg- ment of the breach, an expression of regret or a formal apology), guarantees of non- repetition and rehabilitation.” 27 See El-Masri v. Macedonia, at [191]. 28 See para. [46], [103] and [191]: “some of the States concerned were not interested in seeing the truth come out.” 29 See para. [63]. 30 See para. [192]: “an adequate response by the authorities in investigating allegations of serious human rights violations, as in the present case, may generally be regarded as
In their joint concurring opinion, Judges Tulkens, Spilmann, Sicilianos and Keller further insisted on the right to the truth as an autonomous right resulting from the provision of Art. 13 of the Convention, in conjunction with Art. 3, 5 and 8.31 The right to the truth, while not regarded as an innovative legal concept by the concurring judges, nonetheless is interpreted as the result of the interaction between well-established rights, which safeguard the necessary “relationship of trust” that civil society and democratic institutions are bound by.32 The opinion explicitly recalls the Inter-American Court of Human Rights case law,33 stressing its early acknowledgement of the right to the truth (back in 1988) and, by con- trast, criticising the “timid” approach of the European Court and its reluctance in overtly establishing the right to the truth as a self-standing legal figure. The whole panel did not share the same reasoning on the right to the truth: to remark the centrality of the right to a full judicial review and the ancillary nature of the “new” right to the truth, Judges Casadevall and Lopez Guerra dis- sented, affirming that “no separate analysis as performed by the Grand Chamber in paragraph 191 of the judgment was necessary with respect to the existence of a ‘right to the truth’ as something different from, or additional to, the requisites already established in such matters by the previous case law of the Court.” Furthermore, “[the only] required activity amounts to finding out the truth of the matter, irrespective of the relevance or importance of the particular case for the general public.” Thus, “a separate analysis of the right to the truth becomes redundant.”34
essential in maintaining public confidence in their adherence to the rule of law ad in preventing any appearance of collusion in or tolerance of unlawful acts.” 31 “We consider, however, that the right to the truth would be more appropriately situated in the context of Article 13 of the Convention, especially where, as in the present case, it is linked to the procedural obligations under Articles 3, 5 and 8. The scale and seriousness of the human rights violations at issue, committed in the context of the secret detentions and renditions system, together with the widespread impunity observed in multiple juris- dictions in respect of such practices, give real substance to the right to an effective rem- edy enshrined in Article 13, which includes a right of access to relevant information about alleged violations, both for the persons concerned and for the general public.” 32 “For society in general, the desire to ascertain the truth plays a part in strengthening con- fidence in public institutions and hence the rule of law. […] A more explicit acknowledg- ment of the right to the truth in the context of Article 13 of the Convention, far from being either innovative or superfluous, would in a sense cast renewed light on a well-estab- lished reality.” 33 See, in particular, para. [9] of the opinion at stake. 34 To synthesise their idea, the dissenting judges further affirmed: “as far as the right to the truth is concerned, it is the victim, and not the general public, who is entitled to this right as resulting from Article 3 of the Convention, in the light of the Court’s case-law.”
Judges Casadevall and Lopez Guerra represented, in a certain sense, the voice of a long standing tradition of cautiousness and self-restraint in outlin- ing “new generation” rights, other than those expressly provided by the Convention, which have characterised the court over the years. Moreover, their suspicious attitude towards the relevance of certain violations for civil society reflects the idea of a regional court focused on granting adequate compensa- tion to individuals (or groups) rather than performing a broader (and higher) function for European society as a whole. The role traditionally played by the court, as a supranational “last resort” judge justifies its convictions to be usu- ally limited in scope (and the El-Masri case made no exception) to the mere material compensation for suffered violations. The European Court in El-Masri undoubtedly paid a high (yet concealed) tribute to the Inter-American Court of Human Rights and its long standing case law on the right to the truth. The clear step forward made by Strasbourg judges in recognising, alongside other relevant issues, the high social value of establishing a “historical truth” (about serious breaches of human rights law) is undoubtedly to be welcomed and encouraged, as it clearly echoes the reason- ing and words of the Inter-American case law. Still, one cannot disagree with Judges Tulkens, Spilmann, Sicilianos and Keller (it is worth noting that the Inter-American Court is explicitly named only in their concurring opinion) in demanding a stronger and more courageous affirmation of the right to the truth as a self-standing right, untied from procedural obligation set forth in Art. 3, 5 and 8 of the European Convention, realising the very purpose of Art. 13 in ensuring an effective remedy and full access to relevant information on alleged violations to the victim, his relatives and the general public.35 The idea which underlies Judges Casadevall and Lopez Guerra’s opinion, although understandable and rational, should be overcome by the increasing need of awareness on human rights violations, which appears to be the most effective way to hold governments accountable for their wrongdoings in democratic societies.
III First Clues of the Right to the Truth in the European Court’s Previous Case Law
As we said extensively above, the recent El-Masri case seems to represent the first tentative affirmation of the right to the truth as a “stand alone” right in the European Court of Human Rights case law. However, the reasoning in El-Masri
35 See para. [4] of the opinion at stake.
36 Kurt v. Turkey no. 24276/94 echr 1998–III. 37 About the practice of enforce disapperances: G. Venturini, “International Law and the Offence of Enforce Disappearance” in G. Venturini, S. Bariatti (eds.), Individual Rights and International Justice, cit., 939 ff. 38 A weak opening to the right to the truth, within this case law, can be found in Aksoy v. Turkey no. 21987/93 echr 1996–VI and Çakici v. Turkey no. 23657/94 echr 1999–IV, but also in Yasa v. Turkey no. 22495/93 echr 1998–VI; Tanrikulu v. Turkey no. 23763/94 echr 1999– IV and Kaya v. Turkey no. 22729/93 echr 1998–I, where, besides the obligation of the State to conduct an effective investigation aimed at punishing those responsible for the atroci- ties suffered by the victims, the court also recognises the right of the complainants (the relatives) to gain effective access to the investigatory procedure. 39 These principles were confirmed by the Court, inter al., in Timurtas v. Turkey no. 23531/94 echr 2000–VI, Ipek v. Turkey no. 25760/94 echr 2004–II and Orhan v. Turkey no. 25656/94 echr 2002–IV.
40 See, among others, Imakayeva v. Russia no. 7615/02, 9 November 2006; Baysayeva v. Russia no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva v. Russia no. 40464/02, 10 May 2007; Astamirova and others v. Russia no. 27256/03, 29 February 2009. 41 Janowiec and others v. Russia no. 55508/07 and 29520/09, 16 April 2012. 42 Association 21 December 1989 v. Romania no. 33810/07 and 18817/08, 24 May 2011. 43 See para. [142]. 44 J.A. Sweeney, The European Court of Human Rights in the Post-Cold War Era: Universality in transition, (Routledge 2013), p. 75, affirmed that the Court “does not go quite as far as deducing a fully fledged ‘right to know’ or ‘right to truth,’ but the judgment at least used the terms and clearly understood the importance of historical truth for the victims’ families.”
IV Genesis of the Right to the Truth: The Inter-American Court of Human Rights’ Case Law
As we saw earlier Judges Tulkens, Spielmann, Sicilianos and Keller, within their con- curring opinion in El-Masri, criticised the choice of the court not to stress the link between the right to the truth and Art. 13 of the Convention, overtly citing the Inter- American Court’s well established case law in relation to that right.45 This specific reference is anything but accidental, since the Inter-American Court of Human Rights can be regarded as the first regional court to expressly acknowledge the right to the truth, with particular regard to enforced disappearance. We are facing here, a clear example of “transjudicial communication”46 between two supranational courts (so-called “horizontal communication”), leading to a process of “intellectual cross-fertilization,” with a higher protection of human rights as its final aim. Growing demand for protection of this particular right first emerged in the context of Latin American countries during the eighties. After the sometimes difficult transition from authoritarian regimes to democracies, these countries had to confront widespread human rights violations that had occurred in the past, often covered by amnesty laws favoring impunity for perpetrators. The Inter-American Commission took charge of these instances, asking the Inter- American Court to grant a wide and strong protection to the right to the truth, which the court gradually afforded. At the very beginning, the reference to the right was not explicit. The first judgment on this matter, Velásquez-Rodríguez v. Honduras,47 entailed the right as the duty of the State to investigate every situation involving a violation of the rights protected by the Convention. In the court’s words, the investigation “must be undertaken in a serious manner,” in an impartial way, and in cases of enforced disappearance, must continue “as long as there is uncertainty about the fate of the person who has disappeared,” for “the State is obliged to use the means at its disposal to inform the relatives of the fate of the victims and, if they have been killed, the location of their remains.” The court subsequently upheld this position through a number of early judgments,48 where the right to
45 The reference is to Velásquez Rodríguez v. Honduras (29 July 1988) and Contreras et al. v. El Salvador (31 August 2011). 46 This concept was first introduced by Anne-Marie Slaughter in the early 1990s. See, e.g., A. Slaughter, “A Typology of Transjudicial Communication” in T.M. Franck, G.H. Fox (eds.), International Law Decisions in National Courts (Brill 1998), p. 38. 47 Merits. Judgment of July 29, 1988. Series C No. 4. 48 See, e.g., Blake v. Guatemala, Merits. Judgment of January 24, 1998. Series C No. 36; Street Children (Villagran-Morales et al.) v. Guatemala, Merits. Judgment of November 19, 1999.
Series C No. 63; Durand and Ugarte v. Peru. Reparations and Costs. Judgment of December 3, 2001. Series C No. 89. 49 L.G. Torreblanca Gonzales, “El Derecho A La Verdad En El Ámbito Iberoamericano” (2012) 3 Ius Humani Revista de Derecho 15. 50 Merits. Judgment of November 25, 2000. Series C No.70. 51 Trujillo-Oroza v. Bolivia. Reparations and Costs. Judgment of February 27, 2002. Series C No. 92, at [114]–[115], the Court cites his prior decisions Bámaca Velásquez case, cit., at [160] and [165]; Blake case. Reparations, cit., at [57]; and Blake case, cit., at [114] and [116]; but also Kurt v. Turkey, cit., at [131]. 52 Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, Objections, Merits, Reparations and Costs. Judgment of November 24, 2010. Series C No. 219, at [200] and [201]. It is also signifi- cant the final declaration of the court in the following part: “[t]he State is responsible for the violation of the right to freedom of thought and expression enshrined in Article 13 of the American Convention on Human Rights, in relation to Articles 1(1), 8(1), and 25 of the same instrument, for the harm to the right to seek and receive information, as well as to the right to know the truth.” 53 See, e.g., Mapiripán Massacre v. Colombia. Merits, Reparations and Costs. Judgment of September 15, 2005. Series C No. 134, at [216]–[217]. The specification is contained at [217]: “[t]he Court has established, regarding the principle of reasonable term set forth in Article 8(1) of the American Convention, that it is necessary to take into account three aspects to decide whether the time taken by a proceeding is reasonable: a) complexity of the matter, b) procedural activity of the interested party, and c) conduct of the judicial authorities.”
54 Zambrano Vélez et al. v. Ecuador. Merits, Reparations and Costs. Judgment of July 4, 2007. Series C No. 166, at [121]. According to the principles set in United Nations Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions: “The State authorities that conduct an investigation must, inter alia, (a) identify the vic- tim; (b) recover and preserve the probative material related to the death, in order to facili- tate any investigation; (c) identify possible witnesses and obtain their statements in relation to the death under investigation; (d) determine the cause, method, place and moment of the death, as well as any pattern or practice that could have caused the death, and (e) distinguish between natural death, accidental death, suicide and murder. In addi- tion, it is essential to search exhaustively the scene of the crime and autopsies and analy- ses of human remains must be carried out rigorously by competent professionals, using the most appropriate procedures.” 55 The Court expresses this concept clearly in Blanco-Romero et al. v. Venezuela. Merits, Reparations and Costs. Judgment of November 28, 2005. Series C No. 138, at [62]. 56 L. Bugorgue-Larsen, “The right to the truth” in L. Burgorgue-Larsen, A. Ubeda de Torres, The Inter-American Court of Human Rights: Case Law and Commentary (Oxford 2011), p. 704. 57 As well expressed by separate concurring opinion of Judge Sergio García Ramírez on the judgment on merits of the Bámaca Velásquez case, the right to truth “covers a legitimate demand of society to know what has happened, generically or specifically, during a cer- tain period of collective history, usually a stage dominated by authoritarianism, when the channels of knowledge, information and reaction characteristic of democracy are not operating adequately or sufficiently.” 58 Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011. Series C No. 221, at [192]. The Court then added: “[t]his determination must include a description of the patterns of joint action and should identify all those who participated in various ways in the violations and their corresponding responsibilities.”
V The Relationship between Truth Commissions and the Inter-American Court of Human Rights
Truth commissions59 without doubt represent a peculiar response, which can only be found in the Inter-American system of human rights safeguard, to the substantive need of protection of the right to the truth in its “collective dimension.” The emergence of this particular need is closely linked to the context of post-conflict transitions, where the reconstruction of the truth is an essential step to reach a wide reconciliation, thus avoiding further violence. In particu- lar, some scholars60 underline that the governments’ choice to establish truth commissions, rather than relying on courts to punish the culprits, is the most likely outcome “when the relative strength of the demands from the public” for truth and justice “and from the outgoing regime” for amnesty and impunity “is roughly equal”; meanwhile, facing weaker outgoing regimes, a trial in court would be the first option. Beyond the differences61 existing among the many kind of truth commis- sions, one of the most distinctive common elements is the scope of their man- date, which is aimed “to elucidate the nature, causes and extent of human rights violations, as well as the underlying factors, antecedents and the context that led to such violations, together with identifying those responsible.”62 Considering the Inter-American Court of Human Rights’ case law, it is worth noting the deep connection between the IACtHR’s decisions and the reports of truth commissions. Although in those first judgments, where the right to the truth initially emerged, there is no reference to the work of truth commissions. At a later stage an increasingly central role and a higher dignity was assigned to the work performed by these bodies in the reasoning underlying court judgments.
59 The report of the Secretary-General on the rule of law and transitional justice in conflict an post-conflict societies (S/2004/616, August 23, 2004, at [50]) defines them as: “official, temporary, non judicial fact-finding bodies that investigate a pattern of abuses of human rights or humanitarian law committed over a number of years. These bodies take a victim-centred approach and conclude their work with a final report of findings of fact and recommendations.” 60 E. Skaar, “Truth Commissions, Trials: Or Nothing? Policy Options in Democratic Transitions” (1999) 20 Third World Quarterly 1109. 61 The differences regard the period of operation, the background, the specific mandate, the composition and structure, the findings. 62 Y. Naqvi, “The Right to the Truth in International Law: Fact or Fiction” (2006) IRRC 262.
In many cases, the Inter-American Court “used” truth commissions’ reports to reconstruct the historical truth of the past events thereby acknowledging their full probative value. In the case of Cantoral-Huamaní and García-Santa Cruz v. Peru,63 the court laid down an interesting defense of the probative value of the conclusions reached by the Peruvian Truth and Reconciliation Commission (Comisión de la Verdad y Reconciliación, cvr), questioned by the respondent State.64 This judgment clearly identifies the key element of the relationship between truth commissions and the judiciary: the condition for Commissions’ reports to enjoy probative value is the lack of jurisdictional authority which character- ises these particular bodies. In many judgments, the Inter-American Court underlined the complemen- tarity relationship between “historical truth,” included in the reports of truth commissions, and “the judicial truth”65 by stating that “in compliance with its obligation to guarantee the right to know the truth, the State may establish truth commissions, which contribute to the creation and preservation of the historical memory, the elucidation of the facts, and the determination of the
63 Preliminary Objection, Merits, Reparations and Costs. Judgment of July 10, 2007. Series C No. 160. It is also interesting the concurring separate opinion of Judge Álvaro Castellanos Howell in Tiu Tojín v. Guatemala, in which the judge pays attention to the evidentiary value of the reports of the Historic Explanation Commission (Guatemala, Memories of Silence). 64 The points analysed are fundamentally four: “CVR is an official agency created by the State that produced its report in the course of a specific mandate entrusted to it by the State itself” (para. [89]); Article 3 of Decree No. 065-2001-PCM, which regulated the activi- ties of the cvr, established explicitly that this Commission “does not have jurisdictional authority; consequently, it does not substitute the functions of the Judiciary and the Attorney General’s Office” (para. [90]); “the Court observes that the Final Report of the CVR was presented to the different powers of the State which acknowledged its conclu- sions and recommendations and acted accordingly, adopting policies that reflect the sig- nificance accorded to this institutional document” (para. [91]); “The Court has given special weight to the CVR report as relevant evidence in the determination of the acts and international responsibility of the Peruvian State in several cases that have been submit- ted to its consideration.” (para. [92]). 65 In many decisions the iacthr reiterates this principle. Inter alia, Almonacid-Arellano et al. v. Chile. Preliminary Objection, Merits, Reparations and Costs. Judgment of September 26, 2006. Series C No. 154; Anzualdo Castro v. Peru, Preliminary Objection, Merits, Reparations and Costs. Judgment of September 22, 2009. Series C No. 202; La Cantuta v. Peru. Merits, Reparations and Costs. Judgment of November 29, 2006. Series C No. 162; “Las Dos Erres” Massacre v. Guatemala. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 24, 2009. Series C No. 211.
66 Massacres of El Mozote and nearby places v. El Salvador. Merits, Reparations and Costs. Judgment of October 25, 2012. Series C No. 252, at [298]. 67 G. Citroni, “La Commissione della Verità e Riconciliazione peruviana e l’accesso alla giustizia per le vittime del conflitto interno armato ed i loro famigliari” in F. Francioni, M. Gestri, N. Ronzitti, & T. Scovazzi (eds.), Accesso alla giustizia dell’individuo nel diritto internazionale e dell’Unione Europea (Giuffrè 2008). The author quotes the cases of Castillo Paez (Judgment of November 3, 1997. Series C No. 34), Neira Alegria (Reparations and Costs. Judgment of September 19, 1996. Series C No. 29), Barrios Altos (Merits. Judgment of March 14, 2001. Series C No. 237), Durand y Ugarte (Merits. Judgment of August 16, 2000. Series C No. 68). 68 Zambrano Vélez et al. v. Ecuador, cit., at [129].
Brazil.69 In this case, the court “value[d] the initiative of creating a National Truth Commission and urge[d] the State to implement it, using criteria of independence, competence, and transparency in the selection of its members and with the resources and attributions that permit it to effectively comply with its mandate.” The court further specified that the future establishment of a truth commission could not be considered a substitute for the criminal legal proceeding, but recognised the high value of truth commissions in order to provide a response to civil society’s demand for knowledge.
VI The Inter-American Court of Human Rights and the European Court of Human Rights: A Comparison
When comparing the European Court’s and the Inter-American Court’s approaches to the right to the truth, some well-defined differences can be pointed out. Firstly, while in the Inter-American experience, although subsum- ing it within “other” rights, the right to the truth has been acknowledged expressis verbis. In the European experience (even if guaranteed in a substan- tive way), we find a weaker affirmation of such a right as an autonomous legal figure. As to the legal basis which the courts resort to, in the Inter-American sys- tem, the right to the truth is tied with the right to a fair trial (Art. 8 and 25 achr, 1 achr); in Europe, by contrast, the very same right is protected in some cases under the procedural side of the right to life (Art. 2 echr),70 in others under the prohibition of torture and inhuman treatment (Art. 3 echr). The European Court never resorted to the violation of the right to a fair trial (Art. 6 echr),71 but came to affirm72 the violation of Art. 13 echr (which ensures the right to an effective remedy), blaming the lack of a “thorough and effective investigation capable of leading to the identification and punishment of those responsible
69 Preliminary objections, merits, reparations and costs. Judgment of November 24, 2010, Series C, No. 219 at [392]. 70 L. Pisciotta, “La tutela dei diritti umani in tempo di conflitti armati non internazionali: la giurisprudenza di due corti a confronto” (2006) Riv. dir. internaz. 136. 71 G. Citroni, “Corte Europea e Corte Interamericana: due corti regionali dei diritti umani a confronto” in T. Scovazzi, I. Papanicolopulu, S. Urbinati (eds.) I diritti umani di fronte al giudice internazionale: atti della giornata di Studio in memoria di Carlo Russo (Giuffrè 2009), p. 66. 72 See e.g. Yaşa v. Turkey, cit., at [114]; Tanrıkulu v. Turkey, cit., at [117]; Kaya v. Turkey, cit., at [107].
73 D. Groome, “The Right to Truth in the Fight Against Impunity” (2011) 29 Berkeley J. Int’l L.182. The author makes a comparison between case of Blake v. Guatemala and Cyprus v. Turkey, saying that “In cases where families have sought judicial recourse, courts have consistently found that the failure to meaningfully investigate a disappearance con- stituted a violation with respect to next of kin of the right to a fair trial and the right to judicial protection enshrined in Articles 8(1) and 25(1) of the achr in relation to the gen- eral obligation to respect and guarantee the rights embodied in Article 1(1) thereof.” The ECtHR came to a similar conclusion with respect to Article 13 of the echr – the parallel provision to Articles 8 and 25 of the achr. In Cyprus, the Court concluded that Turkey’s failure to provide Greek-Cypriots with a remedy to contest interference with their rights under Article 8 of the echr and Article1 of Protocol I constituted a violation of Article 13.” 74 See III above. 75 Cyprus v. Turkey no. 25781/94 ECHR 2001–IV, at [157]. See also Taş v. Turkey no. 2396/94, at [79]–[80], 23 October 1999. 76 The first difference, which is not relevant in terms of effectiveness of the system, is the nature of the applicant. While in the echr system the applicant is usually an individual person; in the achr, the only legitimate method to file an application before the Court is the Inter-American Commission on human rights. 77 G. Citroni, “Corte Europea e Corte Interamericana: due corti regionali dei diritti umani a confronto,” cit., p. 59 ff. 78 Velasquez Roudriguez v. Honduras, cit., at [131].
79 Velasquez Roudriguez v. Honduras, cit., at [138]. 80 G. Citroni, “Corte Europea e Corte Interamericana: due corti regionali dei diritti umani a confronto,” cit., p. 65. 81 Reparations and Costs. Judgment of November 27, 1998. Series C No. 43. 82 The 19 Merchants v. Colombia. Merits, Reparations and Costs. Judgment of July 5, 2004. 83 Serrano-Cruz Sisters v. El Salvador. Merits, Reparations and Costs. Judgment of March 1, 2005. Series C No. 120; the 19 Merchants v. Colombia. Merits, Reparations and Costs. 84 Reparations and Costs. Judgment of February 22, 2002. 85 The following list is not intended to be complete, but for example purpose only.
86 See e.g. Bámaca-Velásquez. Reparations and Costs, cit.; Anzualdo Castro, cit.; Blanco-Romero et al. v. Venezuela. Merits, Reparations and Costs. Judgment of November 28, 2005. Series C No. 138.; Goiburú et al. v. Paraguay. Merits, Reparations and Costs. Judgment of September 22, 2006. Series C No. 153; Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, cit. 87 See e.g. The 19 Merchants v. Colombia, cit.; Anzualdo Castro, cit.; Gelman v. Uruguay, cit.; Goiburú et al. v. Paraguay, cit.; La Cantuta v. Peru, cit. 88 See e.g. Bámaca-Velásquez. Reparations and Costs, cit.; The 19 Merchants v. Colombia. Merits, Reparations and Costs, cit.; Anzualdo Castro, cit.; Cantoral-Huamaní and García- Santa Cruz v. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of July 10, 2007. Series C No. 167; Gelman v. Uruguay, cit.; Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, cit. 89 See e.g. Anzualdo Castro, cit.; Blanco-Romero, cit.; Cantoral-Huamaní and García-Santa Cruz v. Peru, cit.; Massacres of El Mozote and nearby places, cit.; Gelman v. Uruguay, cit.; Goiburú et al. v. Paraguay, cit.; Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, cit.; La Cantuta v. Peru, cit. 90 See e.g. Massacres of El Mozote and nearby places, cit. 91 See e.g. Massacres of El Mozote and nearby places, cit. 92 Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, cit. 93 See e.g. Aksoy v. Turkey, cit., at [98]; Çakıcı v. Turkey, cit, at [111]. 94 Judge Spielmann in judgment Medova v. Russia, 15 January 2009, concerning a case of enforced disappearance in Chechnya, affirms: “Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate” believing that in a case of enforced disappearance “It would have been preferable to grant the applicant’s request” for an investigation.
VII Concluding Remarks
At the very end of our unusual trip “searching for the right to the truth” from the Americas to the heart of Europe, we should draw some conclusions from the analysis we have undertaken. Once again, as we pointed out at the outset, in the post 9/11 era European governments have failed in leading the way towards higher international stan- dards in the safeguard of fundamental human rights, and such a failure cannot be taken lightly. Those who spent years exporting their “revealed truths” on freedom and democracy around the world should perhaps take into consider- ation that these “truths” are not as innovative and advanced as they are sup- posed to be. While the achievements of the European Court of Human Rights in El-Masri should indeed be welcomed and well regarded, the general interest that this case provoked in the European media is partly unjustified. As we were able to understand, retracing the reasoning of the European Court in El-Masri focus- ing on the right to the truth, the assertions of Strasbourg judges are still “timid”
95 Art. 41 echr. 96 T.M. Antkowiak, “Truth As Right And Remedy In International Human Rights Experience” (2002) 23 in Mich. J. Int’l L. 977, said that: “Part of the explanation is found in the IACHR’s expansive reparations provision, Article 63.1 of the American Convention, which grants it much more latitude than that permitted its European counterpart.” 97 Article 63(1) of the American Convention provides that: “[i]f the Court finds that there has been a violation of a right or freedom protected by [this] Convention, the Court shall rule that [the] party harmed be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situa- tion that constituted the breach of such right or freedom be remedied and that fair com- pensation be paid to the party harmed.”
PART three Constitutional Position of Top Courts
∵
Chapter nine The Independence of the Judiciary in Belgium1
Marc Bossuyt 2,*
In the present contribution, I would like to refer to some recent developments in Belgium which have some relevance for the issue of the independence of the judiciary. I will first refer to recent attempts of recusal in cases in which judges of the highest courts of the land were involved: the Constitutional Court and the Court of Cassation. I will then say a few words about a recent very high profile case (the Fortis case) which raised doubts about the respect of the government in Belgium for independence of the judiciary. First some preliminary observations. The Belgian Constitution of 1831 does not contain any explicit reference to the independence of the judiciary. The Court of Cassation, however, has qualified the independence of the judi- ciary as a “general principle of law.” Since 1998, Article 151 of the Constitution states that “Judges are independent in the exercise of their judicial duties.” The same article creates also an autonomous High Council of Justice which exercises important functions in the recruitment and the promotion of judges as well as in the evaluation of the performance of the courts and tri- bunals.3 The High Council has made the judicial selection process more objective and it has proven to be “a reliable and skilful advisor to policymak- ers.” However, as far as the external control over the justice system is con- cerned, “there is still room for improvement.”4 Other elements of the independence of the judiciary relate to the selection, the appointment and the promotion of judges, their tenure, remuneration, social security,
* President Marc Bossuyt, LL.D. (Ghent); Dr sc. pol. (Geneva); Dr h.c. (Hasselt); President Constitutional Court Belgium; Emeritus Professor (Antwerp); Honorary Commissioner General for Refugees; former Chairperson of the UN-Commission and UN-Sub-Commission on Human Rights; Member of the Committee on the Elimination of Racial Discrimination. 1 Key note lecture at the 9th International Conference on Judicial Independence, Ghent, 18 October 2012. 2 The views expressed in this contribution engage only its author. 3 ALLEMEERSCH, B., ALEN, A. & DALLE, B., “Judicial Independence in Belgium,” in: Seibert- Fohr A. (Ed), Judicial Independence in Transition. Strengthening the Rule of Law in the OSCE Region, Heidelberg, Springer, 2011, pp. 307–357, at pp. 308 and 310. 4 Ibid., p. 315.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_010
I The Recusal of Judges of the Highest Courts in Belgium
Article 828 of the Judicial Code provides the recusal of individual judges on the main ground of “legitimate suspicion of bias.” Other grounds for recusal are: personal interest in the dispute, family connections, financial relations with one of the parties, hostility, being involved in another litigation relating to the issue or to the parties, serving as the custodian or liquidator for one of the par- ties, having advised or published on a given dispute, having been involved as a judge in either the first instance and the appellate phase of the procedure, hav- ing been a witness in respect of the issue concerned and having received gifts or payments from one of the parties.6
A The Constitutional Court
The Constitutional Court had to deal with a request of recusal of one or more of its judges for the first time with its judgment n°. 32 of 29 January 1987. The request concerned three judges and was based on the fact that all three had, when they were members of the Flemish Parliament, participated in the delib- eration and voting on the decree which was the subject of the prejudicial ques- tion submitted to the Court. Indeed, the Belgian Constitutional Court is composed of twelve judges, six of them are former politicians. The Court, how- ever, observed that they had not been involved in any way in the concrete dis- pute at the basis of the question submitted to the Court. According to the Court, having participated as a member of Parliament in the decision making with respect to a particular decree and to have to judge in the capacity of a constitutional judge, albeit as a former politician, on the compatibility of that decree with the rules of competence of the respective legislative assemblies of the federal State, is not the same as intervening twice in a different capacity as a magistrate in the treatment of the same case. A similar request of recusal of a judge who had, when he was a member of the Senate, rejected amendments on the articles of a law which are the subject of a prejudicial question submitted to the Court, was rejected by the Court in its judgments 35/94 and 36/94 of 10 May 1994. The Court recalled that the
5 Ibid., pp. 316–325. 6 Ibid., p. 326.
7 Piersack (1 October 1982) and Debled (22 September 1994) v. Belgium, Campbell and Fell (28 June 1984), Salaman (dec. 22 June 2004) and Grieves (16 December 2003) v. the United Kingdom, Sramek v. Austria (GC, 22 October 1984), Padovani (26 February 1993) and M.D.U. (dec. 28 January 2003) v. Italy, Thoman (10 June 1996) and Wettstein (21 December 2000) v. Switzerland, Morel v. France (6 June 2000), Sofianopoulos (dec. 12 December 2002) v. Greece, Fillipini v. San Marino (dec. 26 August 2003), Pabla Ky v. Finland (22 June 2004), and AB Kurt Kellermann v. Sweden (26 October 2004).
B The Court of Cassation
Very recently, the Court of Cassation also has been confronted with a request of recusal of all, or at least some, of the magistrates of that Court and subsid- iary of Mr E. G., the highest magistrate of that Court. The request was based on the fact that those magistrates participate in the annual religious service (Te Deum) in a catholic church to celebrate the National Day, that they are received in the church by the archbishop and show respect for him by stand- ing and sitting on his indications, and that the archbishop, who is grand- chancellor of the Catholic University of Leuven, has a relationship of authority with respect to the magistrates of the Court affiliated to that university. In its judgment8 of 8 May 2012, the Court of Cassation rejected that request. As far as the request is directed against all magistrates of the Court, the Court considers that it is a request to withdraw the case from the Court. This possibility is not provided for in any legal provision as it would render the treatment of the case impossible and would infringe upon the fundamental rights of other parties. According to the Court, the assistance at the annual Te Deum is a matter of protocol and does not raise objectively the appearance that the members of the Court could not any longer decide in an impartial and independent man- ner. Referring to Article 151 of the Constitution, the Court recalls that magis- trates are not subject to any hierarchical authority in the exercise of their judicial function. As far as Mr E. G. is concerned, the Court observes that the philosophical persuasion of a magistrate does not in itself create an appear- ance of partiality and that the fact that he is or not a member of a philosophi- cal association or participates in the activities of such an association does not raise a legitimate suspicion.
II The Independence of the Judiciary in the Fortis Case
The judicial saga of the Fortis case, concerning the take over of what was left of the biggest bank of the country by the French Bank bnp Paribas, gained politi- cal prominence on 17 December 2008, when the Prime Minister wrote a letter
8 P.12.0730.N/1.
9 The First President of the Court of Cassation stated in his letter that there were indica- tions that everything had been done to prevent the pronouncement of a judgment by the Court of Appeal of Brussels that would reform the judgment of the Tribunal of Commerce; see MEERSSCHAUT, F., “Als de rook om ons hoofd (nog niet helemaal) is verdwenen – de scheiding der machten in de storm van de Fortis-zaak)” in ALEN, A. & SOTTIAUX, S., Leuvense Staatsrechtelijke Standpunten 2, Bruges, die Keure, 2010, n°. 48, pp. 105–191; VUYE, H., “Het beraad in het kader van de democratie,” FLEERACKERS, Fr. & VAN RANSBEECK, R. (ed.), Het Beraad en de Rechter, Brussels, Larcier, 2011, pp. 41–70. 10 Rapport de l’enquête parlementaire sur le respect de la Constitution, en particulier le principe de la séparation des pouvoirs, et des lois dans le cadre des procédures judiciaires entamées à l’encontre de la sa Fortis, Doc. parl. Chambre 2008–2009, no. 52-1711/007. 11 Conseil Supérieur de la Justice, Rapport sur l’enquête particulière au fonctionnement de l’ordre judiciaire à l’occasion de l’affaire Fortis, General Assembly of 16 December 2009, www.csj.be/doc/reports/SCJ_Fortis-16-12-09.pdf.
12 Cf. the report mentioned in note 10, p. 19. 13 Cf. ibid., p. 30. 14 See also: DE WIT, J., “Fortiscommissie: veel geblaat, weinig wol,” Juristenkrant, 25 March 2009, p. 9: “as well in first instance as at the appeals level, the judiciary has shown that it can withstand eventual pressure” (own translation). 15 Arr. Cass., 2010, n°. 114, pp. 489–495. 16 Ghent, 14 September 2011, http://jure.juridat.just.fgov.be/view_decision?justel=N-20110914 -1&1dxc_id=254716&lang=nl (Justeln° N-20110914-1), confirmed by a judgment of the Court of Cassation, 13 March 2012, P.11.1750.N (www.cass.be).
It is clear from the enquiries and investigations concerning that case that the Government had not attempted deliberately to influence the course of the judicial procedure in that case. The great media and political turmoil sur- rounding that case did not correspond to a serious encroachment upon the independence of the judiciary as had been suggested.
Sir Louis Blom-Cooper QC*
I Introduction: The Concept of ‘Natural Justice’ and Fairness
It used to be called ‘natural justice’. Yet it took quite a long time for the phrase to be brushed out of judicial language, and it is still not yet fully consigned to legal history. If the phrase was always demonstrably vacuous, it survived for half a century in an attenuated form in the area of contemporary civil litiga- tion; it has at least been totally replaced since the 1970s in the burgeoning field of public law. Yet the successor concept of ‘fairness’ is not fully understood in its modern context. Does it mean something different from the duty of a tribu- nal to act fairly in its practice and procedure? Or does it remain, as its earlier form did, an essentially procedural concept – call it, if you will, due process – as a rule of adjectival law, but not a rule of substantive law? More important, however, is the question whether ‘fairness’ has a flexibility of language, mean- ing the condition or quality of being fair, that it extends the principle – that is, ‘was the decision reached fairly?’ and ‘was the decision fair?’ That they are not synonymous as a concept of fairness is obvious, or has it crept into modern legislation as a different kind of animal? The concept of ‘natural justice’ was emphatically unmasked as a construct of the legal system by the authorship of the legal profession, and as such was recognised as not unnatural, by Mr. Justice Maugham, the brother of Somerset Maugham and a subsequent Lord Chancellor. He wrote the following in 1929 in McLean v. Workers’ Union:1
Eminent judges have at times used the phrase, ‘the principles of natural justice’. The phrase is, of course, used only in a popular sense and must
* 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. 1 [1929] 1 Ch 602 at 624.
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not be taken to mean that there is any justice natural among men. Among most savages there is no such thing as justice in the modern sense. In ancient days, a person wronged executed his own justice. Amongst our own ancestors, down to the thirteenth century, manifest felony, such as that of a manslayer taken with his weapon, or a thief with the stolen goods, might be punished by summary execution without any form of trial. Again every student has heard of compurgation and of ordeal; and it is hardly necessary to observe that (for example) a system of ordeal by water in which sinking was the sign of inno- cence and floating the sign of guilt, a system which lasted in this country for hundreds of years, has little to do with modern ideas of justice. It is unneces- sary to give further illustrations. The truth is that justice is a very elaborate conception, the growth of many centuries of civilisation; and even now the conception differs widely in countries usually described as civilised.
It was at least noted as the equivalent of one of the two accepted principles – namely, that of audi alteram partem (hearing both sides), the other Latinism being nemo judex in causa sua (nobody is allowed to be a judge in his own cause – in short, impartial or unbiased). Mr. Justice Black, in the Supreme Court of Ireland in 1948 in Green v. Blake, said:2 ‘I believe the notion of fair play is, in our day, sufficiently evolved and widespread, to render unthinkable a state of law which would fail to accept that principle…natural justice means no more than justice without any epithet…’ Previously, it had been thought that the phrase was harmless. Thus Lord Shaw of Dunfermline said in 1915 in Local Government Board v. Arlidge:3
…the assumption that the methods of natural justice are ex necessitate those of courts of justice is wholly unfounded…In so far as the term ‘nat- ural justice’ means that a result or process should be just, it is harmless though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and in so far as it is resorted to for other purposes, it is vacuous.
Vacuity or not, it cannot be said that it has totally disappeared from the legal lexicon. Thus, Assistant Professor Austin I Pullé in an article in the Asia Pacific Law Review entitled Securing Natural Justice in Arbitration Proceedings4
2 [1948] IR 242 at 268. 3 [1915] AC 120 at 138. 4 Vol 20, No 1, 2012 p. 63 at p. 69.
II Fairness: The Requirement of Impartiality in Administrative Law
It is where courts have entered the field of administrative law that the linguis- tic problem led to a recognition of the inutility of the two principles of ‘natural justice’. The principle of the impartiality of a judge, simply a rubric of bias, has been well developed in a series of cases applying the requisite criteria. This is no place to embark upon a discussion of where to draw the line between ‘prej- udice’ or ‘preconception’ and on the other hand, ‘bias’. The principle of impar- tiality as it applies to public law likewise operates in the area of private law litigation. To observe the second principle of hearing both parties, public law has developed a raft of case law that applies the entitlement of an interested
5 [1973] AC 660 at 679. 6 [1967] 2 QB 617.
7 [1975] 1 WLR 1686.
The public desire, lustily led by legal representatives of witnesses, to be alerted to any potential criticism, found its way into Rule 13 of the Inquiry Rules 2006. This Rule, which definitionally is delegated legislation, is in two parts. The first is a kind of replica of the Salmon letter. It provides that at any time during the conduct of the Inquiry the chairman may issue a warning letter, indicating that the Inquiry might conclude (which was necessarily tentative) criticism of the individual’s conduct.
III The Duty to Send a Warning Letter to Affected Persons in Public Inquires
The second limb of Rule 13 was altogether of a different, and more wide- ranging, obligation. Rule 13(3) provides that if the chairman is minded to criti- cise a person in the final report, he or she must first issue a warning letter and provide the recipient of the letter a reasonable opportunity to reply. What fol- lows such a process is left deafeningly silent. Must the Inquiry include the con- tent of the reply in its report? If so, should it then, if it rejects the response, provide a further opportunity to reply? If the Inquiry agrees to change the criti- cism or amend it, should it explain why it has adopted that course of action? And what should happen, if the response to the warning letter touches on the conduct of other witnesses in the Inquiry – should those other witnesses be served with a warning letter? Apart from the unanswered, puzzling question, how does the obligation to alert a witness of potential criticism fit with the principles of law? One cannot help observing that, in short, the Inquiry will develop into a series of minor issues in which one or more witnesses will find themselves accused of misconduct and seek to answer them. If so, the Inquiry might be held up indefinitely from reporting. If this is an aspect of fairness, we are in the realm of free speech. The underlying problem is that there is a general expectation that public inquiries must be conducted fairly, and over the last hundred years the judges have insisted on fairness, even if it was originally expressed in the language of natural justice. Judges, not unnaturally, have tried to define fairness, and the statute now demands judicial attention. Fairness was always undefinable – rather like the elephant, it was not an easy task, but fairness in practice had the elephantine quality of being easy to recognise. That recognition was in the hands of lawyers and readily acquired the trappings of legalism; hence the earlier resort to natural justice, the legal- ese of procedural fairness. But once stripped of that phrase, resort has been made to focus the Inquiry’s task on the reputations of individuals. But if that
IV Fairness in Criminal Justice
I suspect the same cannot be said for criminal justice. For example, legal repre- sentation is considered absolutely necessary to ensure fairness for citizens prosecuted by the State with all its immense powers for investigation and con- viction. Not so in civil litigation. The history of legal aid and expenditure has been one of gradual and experimental increases and hence the cost to legal aid and bills of costs. The consequence has been a steady rise throughout the latter half of the twentieth century. It has begun to look uncomfortable to the State and led to a policy of cost-cutting. The system of trial by jury, on the other hand, is an instance of devotion to a system (not replicated in civil justice since 1934) which commands public support that is cumbersome and costly, but nevertheless survives. Legal aid may be reduced, but it is nevertheless still in place. The modern shift in emphasis towards alternative resolution of civil dis- putes outside of the courts is further proof of adherence to a system in both its procedures and outcome. Thus fairness in the criminal justice system does not exclusively focus on procedure and in that respect is distinguishable from fairness in the courts of civil justice. Alternative dispute resolution and its emphasis on the settlement
V Fairness Requirement before a Commission of Inquiry
In one of the two judicial reviews in the course of the Bloody Sunday Inquiry, the Court of Appeal rejected a submission that the location of the oral hearings – whether the paratroopers who fired the fatal shots at Londonderry on 30 January 1972 should have to travel to Northern Ireland to face examina- tion and cross-examination, as opposed to the comparative safety of a hearing in London, with its better security arrangements – was a matter of pure proce- dure, a matter for the Inquiry to determine, with which the courts, as a matter of principle, would not interfere. Lord Phillips of Worth Matravers, then Master of the Rolls, said:
We accept that, in general, the court will not interfere with procedural decisions of a tribunal. Here, however, what is in issue is the fairness of the Tribunal’s procedure. Furthermore it is in issue in an extreme form, for what is alleged is that the procedure of the Tribunal will expose witnesses to the fear of lethal danger…while the Tribunal ‘is master of its own proce- dure and has considerable discretion as to what procedure it wishes to adopt, it must still be fair. Whether a decision reached in the exercise of its discretion is fair or not is ultimately one which will be determined by the courts.’8
Fairness, thus, is related not merely to the individual claiming the court’s duty to accord him a fair trial, but could encompass the wider aspect of fair proceedings. Those who conduct inquiries have to base their decisions, findings, conclu- sions or opinions (whatever is the appropriate word to describe their function) on the evidence that is collated, remembering that the Inquiry is not a court of law and will hear anything that is relevant to the Inquiry’s terms of reference. There is no room for argument about admissibility; it is all taken into account and given whatever weight the Inquiry thinks it deserves. Inquiries are no
8 Italics supplied.
VI Fairness in Criminal Procedure
The notion that ‘fairness’ outreached the individual’s fundamental right to fair treatment had potentially emerged in legislation on criminal procedure, going back 30 years. The Police and Criminal Evidence Act 1984 was one of the pieces of criminal justice reform that transformed the procedures of criminal investi- gation by the police forces and prosecuting authorities in conformity with developing fundamental freedom and civil liberties in England and Wales. Apart from a traditional common law right to a fair trial, the English judge has long enjoyed a discretion to exclude evidence of which the prejudicial effect is considered likely to outweigh its probative value. That was thought to be only
VII Conclusion
I conclude that the gamut of adjectival law has been appropriately covered in the decision-making of the courts – ranging from fairness to individual
9 [1994] 1 All ER 898.
Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately it is grounded in social and moral values. These val- ues, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next.
Is that the last word on what is meant by fairness in the result of a dispute?
10 [2006] UKHL 24, at para 4.
Giuseppe Franco Ferrari*
I Introduction
The Italian Constitutional Court is not part of the judiciary. The judiciary power is ruled by Articles 101–110 (Section IV of Part II) of the Italian Constitution and is structured into three tiers, with the Court of Cassation on top, though the relationship between the three levels is usually described as non-hierarchical.1 Following the French model, the administrative justice sys- tem includes a first instance of administrative tribunals, and a second instance Council of State, which also exercises a consultative function with respect to the Government. The joint chambers of the Court of Cassation are entrusted with assigning cases to “ordinary” or administrative justices in case of positive or negative controversy about jurisdiction.2 The Constitutional Court does not belong to the judiciary; it is located out- side of it, not only in terms of constitutional rules applicable (Articles 134–137), but also from the viewpoint of its very nature. The Court itself for several decades,3 till a very recent decision,4 has qualified itself as a non-judiciary
* Giuseppe Franco Ferrari is a tenured professor of Comparative public law at “L. Bocconi” University, Milan; former tenured professor at Teramo (1986–1990) and Pavia (1990–1999). He is also president of the Italian Association of Public comparative and European law - dpce - (1999 till nowadays), member of the committee of the Italian Association of Comparative law (aidc), editing director of dpce review. He is co-editor of the manual “Diritto pubblico com- parato,” Rome (2009) and editor of “Diritto pubblico dell’economia,” Milan (2010, 2013). He has been member of the Committee of experts on public administration of the un Economic and Social Council (2002–2007). 1 See A. Pizzorusso, Corte di Cassazione, in Enc. Giur., vol. IX (Roma, 1998). 2 See G.F. Ferrari, Giurisdizione amministrativa (diritto comparato), in Dig. Disc. pubbl., vol. VII (Torino, 1992), pp. 567 ff. 3 See dec. 13/1960; 168/1991 e 536/1995. 4 Ord. 103/2008: see S. Bartole, “Pregiudiziale comunitaria e «intergrazione» di ordinamenti,” (2008) Le Regioni 898.
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5 From a critical perspective see A. Ruggeri, Interpretazione costituzionale e ragionevolezza, in A. Pisaneschi, L. Violini, Poteri, garanzie e diritti a sessanta anni dalla Costituzione (Milano, 2007), pp. 415 ff. 6 H. Kelsen, Wer soll der Hüter der Verfassung sein?, 1930–31 Die Justiz, Vi, 11–12; A. Merkl, Prolegomena einer Theorie des rechtlichen Stufenbaus, in A. Verdross (Hrsg.), Gesellschaft, Staat und Rech (Wien, 1931), pp. 285 ff. 7 See for instance decisions 1146/1988, 366/1991, 73/2001.
II The Genesis of the Italian Constitutional Court
The Italian Constitutional Court is the first example of constitutional justice in the new European order following the Second World War. The only models were the Weimar Court, mostly in charge of the conflicts between the federal State and the Länder, the Austrian and Czechoslovakian Courts of 1919 and 1920, and the shortly lived Tribunal Constitucional of the Spanish Republic of 1931. The Constitutional Assembly, elected on 2 June 1946, paid a lot of atten- tion to the judicial review of legislation, though the supporters of the new body had much difficulty in prevailing over the opposition of the Marxist left- wingers like Togliatti, who did not want the ideas of popular legitimation of government and parliamentary supremacy to be overturned through the cre- ation of a judicial body overseeing Parliament, and the small group of pre-war liberals, like Orlando and Nitti, who preferred to stick to traditional concepts or to simply allocate such functions to the Court of Cassation.9 Several young professors, like Costantino Mortati, Giorgio La Pira, Paolo Rossi, and Tomaso Perassi, succeeded in persuading the majority that the rigid- ity of the Constitution needs to be defended both in a formal and in a material meaning by a judicial body, at the same time in charge of the decision of any conflict between State powers and/or the newly created Regions and the State itself. A further problem was how to trigger the new judicial mechanism: it was
8 T. Martines, Indirizzo politico, Enc. Dir., vol. XXI (Milano, 1971); A. Spadaro, Una Corte per la Costituzione. Nota sull’originaria e prioritaria funzione della Corte costituzionale, in Studi in onore di P. Biscaretti di Ruffia, vol. II (Milano, 1987), pp. 1237 ff.; G. Burdeau, La démocratie. Essay sintetique (Neuchatel, 1956). 9 G. D’Orazio, La genesi della Corte costituzionale (Milano, 1981), pp. 58 ff.; C. Mezzanotte, Il giudizio sulle leggi. Le ideologie del Costituente (Milano, 1979).
10 G. Rebuffa, La funzione giudiziaria (Torino, 1993). 11 The whole story is told in detail by G. D’Orazio, La genesi della Corte, pp. 141 ff., and more recently by P. Pederzoli, La Corte costituzionale (Bologna, 2008), pp. 7 ff. 12 P. Calamandrei, “L’ostruzionismo di maggioranza,” (1953) 2 Il ponte 129.
III The Composition
The Court is composed of fifteen judges. In the Constituent Assembly there was a lively debate about their selection. Those who supported the election by Parliament as a method of selection preferred to save a strong relationship between Parliament and the Court. A complete appointment by the judiciary was suggested by very few, due to the aforesaid limited tradition of indepen- dence. Finally, a mixed system was chosen: one third of the members are elected by Parliament in joint session, with a qualified majority of 2/3 in the first three ballots, which is abated to 3/5 afterwards; five are appointed by the top judicial bodies, in detail three by the Court of Cassation, one by the Council of State and one by the Court of Accounts, among their members; the last five are appointed by the President of the Republic under his responsibility, though the appointment decree is signed by the Prime Minister as well. The designa- tion of the first and the last five shares a common political criterion. In the first round, when the communist opposition was assumed to never become a government party, only one member was reserved to it. In later years, until 1993, there has been more variety in the appointments by Parliament and the President. The appointees are chosen among lawyers with a minimum of twenty years of experience and tenured university professors of law. Their term lasts nine years, at least after the constitutional amendment that in 1967 reduced it from the original twelve, and re-election is foreclosed. The President
13 A. Simoncini, “L’avvio della Corte costituzionale e gli strumenti per la definizione del suo ruolo: un problema storico aperto,” (2004) Giur. Cost. 3065; U. De Siervo, “L’istituzione della Corte costituzionale in Italia: dall’Assemblea costituente ai primi anni di attività della Corte,” (2006) www.consultaonline.
IV The Functions
The Italian Court carries out a plurality of functions. The first one is the main reason for its creation: the decision “on disputes concerning the constitutional legitimacy of laws and acts having the force of law, adopted by the State and the Regions” (Article 134, para.1). All State legislation can be reviewed, including ordinary statutes, law decrees and legislative decrees approved by Government; both regional statutes approved in the exclusive legislative sub- ject-matters of Article 117, para. 2 and the concurrent legislation of Article 117, para. 3, conforming to the principles imposed by State framework-statutes can be also reviewed. Parliamentary standing orders and rules governing the work of regional councils are not reviewable. The parameter of judgment used in the constitutional review of legislation is composed of all the constitutional norms and of constitutional laws as well, approved following the entrenched proce- dure of Article 138. Over the years, the Court has also applied integrative parameters, called “interposed rules,” like traditional principles of interna- tional customary law, international conventions concerning human rights, beginning with the echr, provisions implementing regional statutes in the five special Regions that acquired such a status following the Second World War. A claim can be filed before the Court following two different proceedings. The principaliter proceeding is lodged by the national Government against a Region, or by one of the Regions against the State within sixty days after the publication of the contested piece of legislation. The State and Regions, after the constitutional revision of 2001 which amended Article 127 among several
14 The details in J.O. Frosini, Constitutional Justice, in G.F. Ferrari (ed.), Introduction to Italian Public Law (Milano, 2008), pp. 195 ff.
V Kinds of Decisions and their Effects
The Constitutional Court can issue several types of decisions, which can be classified according to their different parameters. From a procedural view- point, judgments are the final decisions concluding the proceeding where the question of constitutionality has been raised; orders are procedural decisions not closing the procedure or closing it only temporarily; decrees are adopted by the President and normally regulate organizational matters. In more sub- stantive terms, both incidenter proceedings and principaliter proceedings are decided either with an inadmissibility decision, for instance because the ques- tion was proposed by a body lacking judicial nature, the question lacks con- crete nature, it lacked relevance in the a quo proceeding, or even because the statute to which the question refers has been abrogated or integrated and it might be necessary to get a supplementary evaluation by the a quo judge; or on the merits. In this last case, unless the question is clearly unfounded and can be disposed of with an order, the judgment is either of acceptance or of dis- missal. The dismissal decision rejects the question of unconstitutionality and saves the law: this kind of decision only has inter partes effect, binding only the judge who proposed the question, which can be proposed again by another judge or even by the same judge later on, even when initially lodged through a principaliter proceeding by a Region. Given the absence any stare decisis doc- trine, the Court is allowed to change its mind, overruling its former decision.
Such an event is not very frequent, but it may occur when the interpretation which leads the Court to save the contested provision is not followed by ordi- nary or administrative judges, and the question comes back to the Court in later years. The acceptance decision, to the contrary, declares the statutory provision unconstitutional and has erga omnes effect. The acceptance deci- sion does not abrogate the unconstitutional provision, which simply becomes non applicable from the publication of the case: therefore, the decision has ex nunc effects. The simple scheme which opposes acceptance and dismissal decisions has been elaborated over the years and has given way to a much greater variety of options, which have represented a model for several other European constitu- tional courts. A further type of decision, that cuts across the former two, is the interpretative decision. Since no binding consequence derives from the prec- edent, two or more possible interpretations can be attributed to the same stat- utory provision by different judges, and even by the Court of Cassation, at least before a Grand Chamber decision. Therefore, when a constitutionality ques- tion gets to the Court through a claim lodged by an a quo judge, the Court may recognize the existence of different normative meanings (in theory or even in practice) and must opt for one of them before deciding the issue of constitu- tionality itself. When the Court prefers to adhere to a normative meaning that leads it to state the unconstitutionality of the contested provision, the inter- pretative judgment of acceptance is final, because the decision has an erga omnes effect. To the contrary, when the Court prefers to stick to a normative meaning that allows it to save the provision as non-unconstitutional, there is no guarantee that ordinary and administrative judges will confirm it in future cases, given the absence of erga omnes binding effects of the dismissal deci- sion; if another interpretation in fact prevails, a claim of unconstitutionality can be lodged again and the interpretative decision of dismissal can leave place to an interpretative decision of acceptance. Manipulative judgments are another category of decisions including several types. Partial acceptance judgments, for instance, imply that confronting a normative text drafted in a complicated manner, the Court finds itself obliged to sever parts of the statutory provisions, saving some of them and declaring unconstitutional others. By so doing, the meaning of the surviving text can be consistently different from the original intent of Parliament, if understand- able. Over time, the Court has been criticized for this approach, which in some cases produces the same effects of the line-item veto in the US presidential experience. Its creativity reaches the apex and can produce a relevant change in the normative meaning as a consequence of the selective elimination of some parts of the provision only. On other occasions, the manipulation is even
15 Dec. 15/1969: see again J.O. Frosini, Constitutional Justice, p. 204. 16 Dec. 10/1993, see M. D’Amico, “Decisioni interpretative di rigetto e diritti fondamentali: una nuova strada per la Corte costituzionale?”, (1993) I Giur. it. 2048. 17 For instance decisions 454/2007 on the right to social assistance; 432/2005 on the right to free access to public transportation; 306/2008 and 11/2009 on the right to social benefits related to disability. 18 See Goldberg v. Kelly, 397 US 254 [1970].
These additive judgments also have an expenditure content, because they deprive Parliament of its most natural prerogative, that of finding the resources necessary to support social services. Therefore, after receiving some criticism from legal scholars19 and political parties, the Court has more recently switched to judgments where the omission is declared unconstitutional because it does not extend constitutionally needed protection, but Parliament simply receives some instructions about how to choose the appropriate solution within a range of given options and keeps the exclusive responsibility of looking for the financial resources and adjusting the delicate distributive problems following the enlargement of the lot of beneficiaries.20 The last type of manipulation appears in the decisions called exhortative, when the Court, confronting mat- ters regulated by technical or otherwise complex rules, does not feel like com- pletely substituting its opinion for the discretion of Parliament and prefers to deliver a message to the Legislature, asking for the adoption of new statutes or even sketching some principles or guidelines for the Chambers to be followed in the requested intervention.21 Many other colourful terms are used by public law scholars to describe further kinds of judgments: for instance, “orthopaedic” are the cases where the Court makes an effort to prevent a stumbling provision from collapsing by applying conservative techniques, like inserting some new element through interpretation or emphasizing aspects formerly ignored or understated.22 More types can be identified in the judgments concerning the admissibility of referendums, where the relationship with Parliament can be even more complicated, depending on the epoch of the statute, its legislative history, its links with the working of constitutional organs, the severability of provisions to be abrogated from the rest of the text, and so on.23
19 C. Panzera, Sentenze normative della Corte costituzionale e forma di governo, in A. Ruggeri, La ridefinizione della forma di governo attraverso la giurisprudenza costituzionale (Napoli, 2006), pp. 516 ff. 20 Decisions 385/2005 and 77/2007. 21 See for instance decisions 32/2004 and 61/2006. On this issue see G. Zagrebelsky, La Corte costituzionale e il legislatore, in P. Barile, E. Cheli, S. Grassi, Corte costituzionale e sviluppo della forma di governo in Italia (Bologna, 1982), pp. 141 ff. 22 See decision 303/2003. See A. D’Atena, “L’allocazione delle funzioni amministrative in una sentenza ortopedica della Corte costituzionale,” (2003) Giur. cost. 2782. 23 See for instance decision 13/2013: A. Ruggeri, Davvero inammissibili i referendum elettorali per la (supposta) impossibilità di reviviscenza della normativa previgente rispetto a quella oggetto di abrogazione popolare (a prima lettura di Corte cost. n. 13 del 2012), in AA.VV., Nel limbo delle leggi. Abrogazione referendaria della legge Calderoli e reviviscenza delle leggi Mattarella? (Torino, 2012).
In sum, the Court has been expanding a growing number of types of deci- sions, mostly reacting or adapting itself to actions or omissions of Parliament, occupying room left free from legislative inaction, remedying internal contra- dictions of pieces of legislation, filling loopholes in statutory texts, occasion- ally preventing or regulating a posteriori conflicts between powers, suggesting and guiding, admonishing and stimulating Parliament and Government, or even the Judiciary, compensating when necessary and more often balancing values and principles, in conformity with its most familiar attitude. With an average number of about 350 decisions per year, there are not only a wide range of types, but also new chances of elaborating further kinds of judgments, though the traditional classification should be considered consolidated. Decisions like the so-called Previti case24 or the Citi case,25 in the sector of the conflicts of power, concerning the refusal of criminal courts to delay some hearings in order to allow a member of Parliament to attend his Chamber and balancing the interest of Parliament to the regularity of its work with the inter- est of criminal justice to speedy trials, at the beginning of the century seemed to define once and for all the criteria of evaluation of the causes of justification for hearing deferrals. In 2013, the Berlusconi case26 offered new materials for a partially different reasoning. As far as the privilege of the President of the Republic is concerned, the Cossiga case in 2004,27 when a former President challenged the treatment given by the Court of Cassation to his words, seemed to decree the final word on the topic; however, the recent Napolitano case of 201328 where the President in office was intercepted by the anti-mafia public prosecution office of Palermo, concerned unexpected events, which had to be assessed in quite new terms, giving way to unprecedented reasoning. In a com- pletely different field, the approval of the new regional statutes after the con- stitutional amendments of 1999 and 2001 started a season when the Court had to confront the new concept of “harmony with the Constitution,” to distinguish between limited vices of unconstitutionality and full incompatibility, graduat- ing the effects of its decisions and regulating their follow-up.29
24 Dec. 225/2001. 25 Dec. 284/2004. 26 Dec. 168/2013. 27 Dec. 154/2004. 28 Dec. 1/2013. 29 For instance decisions 304 and 306/2002; 2, 378, 379/2004. See S. Mangiameli, “La nuova potestà statutaria delle Regioni davanti alla Corte costituzionale,” (2002) Giur. Cost. 2358 e P. Passaglia, Il controllo di legittimità costituzionale degli Statuti ordinari, in R. Romboli (ed.), Aggiornamenti in tema di giustizia costituzionale (2002–2004) (Torino, 2005), pp. 135 ff.
In other words, the typology of decisions is not static, but keeps on being enriched by various institutional events that the Italian political system never ceases to produce.
VI The Court and Transnational Courts in Europe
A powerful evolutionary factor in the history of the Court has been its confrontation with the framework of international or supranational obliga- tions that have constantly compelled adjustments and adaptations. The result has been the construction of what has been called a multi-level constitutional system, where the role not only of the Italian Constitutional Court, but also that of all the constitutional tribunals of the European countries has been con- sistently rebuilt. As far as the echr is concerned, before 2007 the ordinary judges tried to promote the Convention from the level of ordinary law to a stronger force. According to Articles 10 and 11 of the Constitution, the force of an international treaty is that of the statute which introduces it into the domestic legal system. After 2000 and after the adoption of the Charter of Nice as an intergovernmen- tal agreement, some courts, among them even the Court of Cassation in Grand Chamber, began to declare inapplicable national provisions conflicting with the Convention, putting it on a par with European law, or considering the fun- damental rights incorporated in the Convention almost equivalent to princi- ples of customary international law, or even relying on the increased value of rights in the European order after Nice. The Strasbourg Court, on the other hand, had often repeated that national judges should keep in mind its interpre- tative guidelines and lodge claims even derogating to the rule of previous exhaustion of all available remedies.30 The Constitutional Court had always confirmed the ordinary force of the Convention, though stating that later stat- utes, like the Procedural Criminal Code, cannot derogate it, given the atypical force of the legal source, not abrogable by ordinary laws. Finally, in a famous pair of judgments in 2007,31 the Court recognized the quality of provisions integrating the constitutional parameter to the echr, resting on the text of Article 117, para. 1, introduced in the constitutional amendment of 2001, which imposes the observance of international obligations both to regional
30 See for example V. Sciarabba, Tra fonti e Corti. Diritti e principi fondamentali in Europa: Profili nazionali e comparati degli sviluppi nazionali (Padova, 2008), pp. 305 ff. 31 Decisions 348 and 349/2007: among many commentaries, A. Bultrini, R. Cafari Panico, L. Tomasi, L. Montanari, A. Ruggeri (2008) DPCE 171–222.
32 Decisions 311 and 317. 33 See E. Lamarque, “Gli effetti delle sentenze della Corte di Strasburgo secondo la Corte costituzionale italiana” (2010) Corr. Giur. 955. 34 Cass. Sez. un. civ. 26 January 2004, nos.1338, 1339, 1340, 1341. 35 Again E. Lamarque, Gli effetti delle sentenze, p. 960. 36 P. Barile, “Il cammino comunitario della Corte” (1973) Giur. Cost. 2406; F. Sorrentino, “Il diritto europeo nella giurisprudenza della Corte costituzionale: problemi e prospet- tive” (2006) Quad. reg. 625. 37 Dec. 98/1965 and 183/1973.
38 Dec. 14/1964 and 183/1973. 39 Dec. 183/1973, and later 170/1984, 113/1985, 168/1991, 384/1994, 94/1995, 509/1995. 40 And now Article 288 of the tfeu. 41 And now Article 267 of the tfeu. 42 Dec. 232/1989. 43 Ord. 103/2008.
VII An Overview: Role and Legitimation of the Constitutional Court
The Italian Constitutional Court has been imposing itself as an important player on the Italian institutional stage, starting from an uncertain position, due to the novelty of such a creature in the legal and political landscape of Italy, as well as of the other European countries, since, notwithstanding an eight year delay, it was the first court of its kind to be activated in 1956. In the beginning, both public law scholars and politicians found themselves at odds in defining its nature and its position in the constitutional system. The very identity of the Court was initially far from clear in the eyes of both public opin- ion and the lawyers. Nothing was obvious: several judges believed that the sanction of unconstitutionality could be applied to post-Constitution laws only, while older statutes, including the most intrinsic to the Fascist regime, were beyond the competence of the Court. The Court of Cassation was per- suaded that most constitutional provisions had no real normative strength, being only a sort of cluster of principles in a long-term political program, and could not be used as a parameter for constitutional review. The Court had to make serious efforts to have its role understood, let alone accepted. Still, in 1960, almost five years after its concrete activation, it had to clarify that it was
44 See dec. 14 May 1974C-4/73 and dec. 12 November 1969C-29/69. 45 Dec. 17 November 1993, C-134/92 and dec. 9 November 1995, C-465/93. 46 Bodil Lindqvist, 3 November 2003, C-101/01. 47 Kadi, 3 September 2008, C-402/05. 48 Scarlet Extended, 24 November 2011, C-70/10.
49 Dec. 13/1960. 50 Dec. 1/1956. 51 See F. Bonini, Storia della Corte costituzionale (Roma, 1996), pp. 117 ff. 52 P. Barile, “La Corte costituzionale organo sovrano: implicazioni pratiche” (1957) Giur. Cost. 907; P. Biscaretti di Ruffia, Il problema della giurisdizione costituzionale e la sua recente soluzione in Italia, in Scritti in onore di Vittorio Emanuele Orlando, vol. I (Padova, 1957), pp. 125 ff. 53 M. Cappelletti, “La giustizia costituzionale in Italia” (1960) Giur. Cost. 469.
54 Dec. 10/1972. 55 Dec. 251/1975. 56 Dec. 169/1971 and 176/1973. 57 Dec. 64/1971 and 17/1974. 58 Dec. 199/1972 and 142/1973. 59 Dec. 54/1974. 60 Dec. 34/1973. 61 Dec. 172/1976. 62 Dec. 202/1976. 63 Dec. 117/1979. 64 Dec. 259/1974.
65 Dec. 68, 69 and 70/1970, 251/1975, 16/1978. 66 F. Amirante, Che cosa è la Corte costituzionale, Corte Costituzionale, Roma, 2009, available on the website of the Italian Constitutional Court: www.cortecostituzionale.it/ ActionPagina_216.do.
67 Dec. 148/1981. 68 Dec. 28/1982. 69 Dec. 215/1983. 70 Dec. 223/1983. 71 Dec. 252/1983 and 217/1988. 72 Dec. 245/1984. 73 Dec. 226/1983. 74 Dec. 170/1984 and 113/1985. 75 Dec. 164/1985. 76 Like dec. 137 and 178/1986. 77 Like dec. 266, 286 and 616/1987. 78 Dec. 310/1989.
79 Dec. 243/1991. 80 Dec. 379/1992. 81 Among several others, dec. 462, 463, 464, 474, 478/1993. 82 Dec. 443/1993. 83 Dec. 210, 218 and 308/1994 and 438/1995. 84 Dec. 47/1991; 26-38/1993; 1-2/1994; 11/1995; 14-42/1997. The whole story is told by A. Pertici, I giudizio di ammissibilità del referendum abrogativo, in R. Romboli (ed.), Aggiornamenti in tema di processo costituzionale (1996–1998) (Torino, 1999). 85 See e.g. dec. 14 and 272/2004, 80/2006 and 430/2007. See L. Ceraso, “La recente giuris- prudenza della Corte costituzionale sulla “tutela della concorrenza” (art. 117, comma 2, lett. e): linee di tendenza e problemi aperti” (2005) Giur. Cost. 3447. 86 See e.g. dec. 407/2002, 108/2005, 367 and 378/2007, 214/2008 and 315/2010. 87 See e.g. dec. 304 and 306/2002, 306/2002, 2/2004, 372, 378 and 379/2004, ord.31 and 353/2005, dec.469/2005, 4 and 12/2006. 88 Ord. 334/2008.
Conflicts between powers of the State have constantly grown in number and importance, and it has been impossible to avoid deciding them as political questions or adopting other elusive techniques due to their extreme impor- tance for the political system and the public opinion. There have been deci- sions concerning State secrets, like in the case of a suspect of terrorism kidnapped by Italian and American secret agents89 or in that of the works in the residence of the premier;90 cases concerning the roles of the President and the Minister of justice in the grant of pardon;91 cases relating to the transfer of judges and the powers of the Council of Magistracy;92 the controversy between former President Cossiga and the Court of Cassation about declarations of the former;93 the problems of indirect interceptions of mps and of the President of the Republic;94 the acquisition by the public prosecutors of the records of phone calls of mps;95 the legitimate impediment barring mps, Ministers, and the premier to attend criminal hearings;96 and the limits of ministerial respon- sibility,97 leaving aside the traditional questions about the censurability of opinions of mps outside Parliament.98 In this turmoil, the number of incidentaliter proceedings has decreased, but some new trends have emerged. Firstly, the Charter of Nice has been men- tioned at random even before its formal incorporation into European law,99 and above all the echr has found a well defined and possibly final position in the system of legal sources, being recognized as able to integrate the constitu- tional parameter, as an “interposed” norm100 thanks to the new Article 117,
89 Dec. 106/2009. 90 Ord. 404/2005, 124, 125, 337, 338/2007. 91 Ord. 354/2005 and dec. 200/2006: see M. Luciani, “Sulla titolarità sostanziale del potere di grazia” (2007) Corriere giur. 190. 92 E.g. dec. 290/2007. 93 See R. Bin, G. Brunelli, A. Pugiotto, P. Veronesi (eds.), Il “Caso Cossiga.” Capo dello Stato che esterna o privato cittadino che offende? (Torino, 2003). 94 Dec. 390/2007 and 1/2013. 95 Dec. 390/2007, 188/2010. 96 Dec. 225/2001, 263/2003, 284/2004, 451/2005, 168/2013. 97 Ord. 8/2008, dec. 241/2009 and 211/2010. 98 Dec. 10 and 11/2000, 379/2003, 120/2004, 347 and 348/2004, 163/2005. About the whole story, see R. Romboli (ed.), Aggiornamenti in tema di processo costituzionale (2002–2004) (Torino, 2005), pp. 297 ff.; Id., Aggiornamenti in tema di processo costituzionale (2005–2007) (Torino, 2008), pp. 331 ff.; Id., Aggiornamenti in tema di processo costituzionale (2008–2010) (Torino, 2011); V. Tondi Della Mura, M. Carducci, R.G. Rodio (eds.), Corte costituzionale e processi di decisione politica (Torino, 2005). 99 Dec. 394/2006 and 349/2007. 100 See the aforementioned Dec. 348 and 349/2007, and also Ord. 161 and 368/2006.
101 See e.g. dec. 182/2007. 102 Among many judgments, see e.g. 245, 250 and 252/2005, 209, 244, 280, 324/2006, 369, 392, 396, 464/2007, 154, 155, 226/2008, 317/2009, 3, 197/2010. 103 Like in Dec. 31-51/2000, 41-46/2003, 24-25/2004, 45-49/2005, 15-17/2008, 24-29/2011, 174/2011. 104 In the words of M. Rosenfeld, “Constitutional Adjudication in Europe and the United States, Paradoxes and Contrasts” (2004) 2 Int.J.Con.L. 633.
105 To use the language of M. Rosenfeld, “Comparing constitutional review by the European Court of Justice and the U.S. Supreme Court (2006) 4 Int.J.Con.L. 618. 106 A summary of these doctrinal positions in S. Rodotà, “La Corte, la politica, l’organizzazione sociale” (1982) Pol.dir. 170.
Relations between the Judiciary and the other Branches of Government
∵
Chapter TWELVE The Scope of Judicial Review and the Rule of Law Between Judicial Restraint and Judicial Activism
Sir Louis Blom-Cooper QC1,*
I Introduction: Judicial and Judicious Review
As a desiccated English barrister, I am conscious of both the contemporary debate in the UK between a judiciary engaged in the growth industry of judi- cial review of administrative action that irritates, not a little, the political administrators, and the issue here. It is a constitutional struggle that centres on the Rule of Law. It would be inappropriate for me, therefore, to dwell upon the impact of judicial review on the constitutional independence of our UK judi- ciary, when we are acutely aware of what is happening on the other side of the Atlantic over the subject of constitutionalism. A year ago the retired Justice John Paul Stevens argued persuasively against the academic (and perhaps politician and practitioner’s) cry for a national convention to review the US Constitution. I fancy that the availabil- ity of amending the Constitution in the 21st century lies at the heart of the political problem. And only last week Professor David Cole wrote in the New York Review of Books against the academic suggestion that you should throw away a famous constitution and start again. It is all heady stuff that boggles the philosophical mind, and is better left to public debate and not for outsid- ers to confuse the plot. But at least what I can do is to observe generally a number of points about the scope of judicial review in a democratic society displaying an increasing desire for more transparency and fairer adjudica- tion of social issues. So here goes, leaving the written constitution for later thought.
1 [1929] 1 Ch 602 at 624. * 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.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_013
Much has been written about the comparison between the written and unwritten constitution. I venture to think that recent events have in two major respects brought us closer together; they are worth mentioning. First, the sov- ereignty of parliament in the Diceyan fashion is no longer persisted with. My own view is that it was already a misinterpretation of Montesquieu in the 18th century. We never had a ‘separation of powers’; it has always been a separation of functions, a distinction of shared powers, in which the phrase, judicial restraint, is the buzz word. The unanswered question is where is the line of distinction drawn? Since at least 1972 (when Parliament took us into the Common Market) we derive powers from Brussels. Second, this and other events (like devolution) have effectively been political issues transmuted into becoming legal issues, fought out in a public-judicial forum. The UK enact- ment of the European Convention on Human Rights in 1978 provoked and stimulated a judiciary keen to sharpen its tools over government.
II The Origin of Judicial Review
It is helpful to study where the concept of judicial review came from. It has a very English origin that might be worth renewing on both sides of the Atlantic. But before I do, there is one observation to note. It is assumed that British judges have always functioned against an unwritten constitution, and there- fore had no experience of a case where the judiciary could countermand legis- lative action. This is not strictly true. Over the years after World War II when colonial territories gained their independence from the mother country, the English judiciary commonly heard appeals from territories whose final court of appeal was the Judicial Committee of the Privy Council. In two decisions in the 1970s, local legislation aiming to usurp the function of the criminal juris- diction were held to be unconstitutional. The cases implied that the interven- tion of the courts in law-making could be properly based on the dual principles of fairness and good government. Judicial review began its statutory life in England only in 1981, and then, in a peculiarly English way, it spoke via delegated legislation, the well-known Order 53 of the Rules of the Supreme Court. That body of lawyers declared that thereafter an application for judicial review encompassed the estab- lished prerogative orders (originally, until 1881, ‘writs’ issued by the High Court in the name of the Crown as head of state – hence the unbroken link in the chain of judicial review). It certainly gave power to the judges to con- trol inferior tribunals. Does it give control over other administrative agen- cies? If that is problematic (which I think it is) it calls for some research into
III Separation of Powers
All Western liberal democracies, with their commitment to the Rule of Law, are based on similar constitutions, whether they are written or uncodified. They share roughly the same fundamental values of government, of which there are three arms – legislature, executive and judicature. Ever since the early 1740s, when Montesquieu devoted a whole chapter in his De L’esprit des Loix, misunderstandingly to the English constitution, commentators have universally adopted, without analysis, the phrase ‘the separation of powers’. This then was an unhelpful exaggeration, gained from the French experience;
2 (1762) 3 Burr. 1265.
3 2000, at p 342. 4 (1762) 3 Burr. 1265. 5 [1986] AC 240.
The institutional separation was best espoused by Lord Diplock in R v Hinds,6 a majority decision in the Privy Council in an appeal from the Jamaican courts. He held that the country’s Constitution prevented its legislature from establishing a special court to try certain firearms offences (called a Gun Court) which could exercise powers during the pleasure of the Governor-General on the advice of a Review Board of whom only the chairman was a member of the judiciary. He said that ‘whatever is implicit in the very structures of a constitu- tion in the Westminster model…is that judicial power is to continue to be vis- ited in persons appointed to hold judicial office in the manner and on the terms laid down in the chapter dealing with the judicature, even though this is not expressly stated in the Constitution’. This statement, never seriously ques- tioned, had been firmly endorsed by Lord Pearce in Liyanage v The Queen,7 cited by Lord Diplock at the end of the passage in Hinds. The Ceylon Act of 1962 – the colony of Ceylon achieved independence as Sri Lanka in 1971 – contained substantial modification of the Criminal Procedure Code, by purporting to legislate ex post facto the 60-day detention of persons for offences against the state by indicating classes of offence for which a jury trial could ordinarily be ordered; the issue was whether the 1962 legislation was an unconstitutional law for Ceylon. The presiding judge, Lord McDermott (later the Lord Chief Justice of Northern Ireland) had stated, unchallenged in arguendo, that ‘judicial functions were intended to be vested in the judiciary’. Lord Pearce demonstrated (at p 284) that, in the Board’s opinion, the power to make legislation was given ‘for peace, order and good government’. This was based on all the pre-independence British colonies who were empowered to enact laws. He discussed the use of the doctrine of the separation of powers, and added ‘but there was a recognised separation of functions’; and that ‘the Act involved usurpation and infringement by the legislature of judicial powers inconsistent with the written constitution of Ceylon. The judicial system, therefore, was untouched’. It has been untouched ever since. If such Acts of Parliament are ever to be held unconstitutional, or declared incompatible, the judicial power could be effectively absorbed by the legisla- ture by reversal of the judicial decision, thereby being taken out of the hands of judges. The Rule of Law exceptionally demands no less. The Human Rights Act 1998 confirms the constitutional infrastructure of modern democracy. Whatever Westminster ordained constitutionally, the innate doctrine of incompatibility in the 1998 Act established the primacy of the judicature as a governing institution. The judicial function is thus entrenched.
6 [1977] AC 195 at 215. 7 [1967] 1 AC 259.
The modern democracy encompasses not just obligations and powers, but establishes institutions to give effect to them; they are organisations with their own independent authority and the ability to share powers intrinsic in other institutions of government. Lord Bingham put it pithily in Pretty:8 a court of law is not a legislative body, but is institutionally judicial. The court cannot create a legislative act, but in terms of the distribution of powers among arms of government it can make law.
IV Parliamentary Sovereignty
It has been my experience as a practising barrister from the 1960s onwards that the academic discussion about parliamentary sovereignty and its doctrine of the separation of powers has never fallen from the lips of the judiciary. Even in a recent commentary in Public Law (the December issue of 2012), discussing the famous gchq case, did no more than reveal three of the Law Lords agreeing that the government exercise of its prerogative power was judicially review- able by the courts, while the other two thought that the power, by virtue of its notice, was not reviewable. This was not a rehearsal of the separation of pow- ers but the correct distribution of that power. I was personally involved in that case – appearing as counsel for the trade unions – and I do not recall any of the academic literature being cited in the relevant quotes by their Lordships in the various judgments. I had invariably based myself, from my earliest days at the Bar, on the apt remarks made by O’Brien J in the Irish Supreme Court in Buckley and others (Sinn Fein) v. Attorney-General and another,9 that ‘the mani- fest object of this Article [Article 6 of the Irish Constitution of 1937] was to recognise and ordain that, in this State [which followed the Westminster model] all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive and judicial organs of the State and to require that those powers should not be exercised otherwise’. So it was thought throughout my career, until Lord Sumption, in the F A Mann lecture for 2011, asked the contrariwise argument, whether it is ‘a fundamental question about the relations between the judiciary and the two political arms of the State, the executive and the legislature’, and answered rhetorically, ‘how far can judicial review go before it trespasses [italics supplied] on the proper function of government and the legislature in a democracy?’ It is the first time that the separation of powers has
8 [2002] 1 AC 800. 9 [1950] 1 IR 67, 81.
Courts cannot be expected to carry the full burden of what might be required. In a democracy parliament and civil society [the legislature and the executive] are also defenders of the rule of law and it is essential that they should play their part in its protection.
V Judicial Review and Judicial Creativity
The development of an English style of administrative law in the 1960s marked a clear case of judicial creativity. By amendment to Rule 53 of the Supreme Court Rules – written incidentally by the legal profession through its Rules Committee – the courts were able, English-style, to fashion the ancient pre- rogative writs (later, orders) into an application for judicial review. Since then the judges, with no assistance from the legislature, have developed the greatest growth industry in our legal system. This was achieved by the exercise of legal- istic growth of the Common Law. If judicial review has not transformed the legal landscape, the Human Rights Act 1998 gave further impetus to the judi- cial power to exercise extensive powers over civil authorities. After 2000 the courts were empowered to declare any acts or decisions by Ministers and civil servants as incompatible with Articles of the European Convention on Human Rights and Fundamental Freedoms. Incompatibility was an open invitation to the legislature to reform the violation into legislation that would render the law compatible. The compromise with parliamentary supremacy in legislation was ingenious. It affirmed the constitutional arrangement of apportion of powers, not their separation. The courts’ powers to engage in law-making were not limited to activity as a secondary legislature, as indicated. A deluge of litigation, delegated by Parliament to respective Ministers, rendered such delegation supervised by the courts. Judges were able to declare the statutory instrument, drafted by ministerial officialdom, as ultra vires the primary legislation, thus conferring a further control by the courts of the scope of Parliamentary legislation. None of this answers the question: what then are the limitations on the power of the courts over acts of government? Is there such a thing as a judicial restraint that operates to restrict the ambit of judicial power over executive and (in certain circumstances) legislative actions? If so, where is the boundary line to be drawn? The question is often asked, and never given a definitive answer. It was first discussed in the House of Lords in the Fire Brigade case in 1987 – most informatively in the dissenting judgment of Lord Mustill. The judgment of Lord Mustill in 1984 (the date is important) in R v. Home Secretary, ex parte Fire Brigades Union – the fact that it is a dissenting judgment is of no consequence, since it accords with judicial expression of the need to observe the precise nature of our constitution – is of immense significance.
If, on the face of it, it discloses a traditional approach to our constitutionality, on close analysis it bears usefully in the present-day view of the constitution. His opinion (actually it is a peroration) suffices to explain the purpose that lay behind 300 years of developing democratic rule. I quote the words of Lord Mustill:
It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their dis- tinct and largely exclusive domain.10
While the phrase ‘sovereignty of powers’ is the familiar expression of the law- yer and the constitutionalist, the use of the final word ‘domain’ is instructive. The separation is of all three. It is thus institutional, not a matter of their func- tioning. The word does not purport to express any operational or functional activity of the institutions. It is heritable property held in possession, lands or dominion. It is an institution, an area of influence or rule. The meaning of the sentence is that all three parts of the constitution are separate institutions while their powers (as I will demonstrate) are shared and not distinct or dis- crete. No dissociation of the two ‘political’ arms from the judicature (presum- ably, but inaccurately described as non-political). They are all three concerned with ‘good government’; the fact that the trio are complementary in member- ship (Parliamentary and executive officers) and the third unelected is of no significance in terms of their functioning. The three are institutionally sepa- rate: their powers are complementary. What those powers constitute is for professional discussion in 2014. Lord Mustill then explains the separate functions of the three institutions in familiar traditional form, and adds that ‘it requires the courts on occasion to step into the territory which belongs to the executive [institution], to verify not only that the powers asserted accord with the substantive law created by Parliament but also that the manner in which they are exercised conforms with the standards of fairness which Parliament must have intended [fairness or proportionality being a power shared by all the branches]’. He ends the para- graph with the words ‘…it is the task of Parliament and the executive in tan- dem, not the courts, to govern the country. In recent years, however, the employment in practice of these specifically Parliamentary remedies has on occasion been perceived as falling short, and sometimes well short, of what was needed to bring the performance of the executive into line with the law,
10 p 567D of [1985] 2 AC 513.
VI The Challenge of Demarcating the Boundary Line between Executive Action and Court Intervention
Absent a written constitution that marks out the boundary line between exec- utive action and court intervention in the exercise of the powers of govern- ment, is the prime occupation of the distribution of powers. Lord Mustill concludes his observation of the unwritten constitution by stating – pre- Human Rights Act 1998 and devolutionary powers – that the political and social landscape has changed beyond recognition, but the boundaries [note the plural] remain; ‘they are of crucial importance’. What then are the bound- aries of power that are not separate but complementary in 2014? The best reason for the development of the Common Law, acting as a secondary legislature, is the case of Jones v. Kaney.11 It is a good illustration of the duty of a judge (particularly an appellate judge). As Benjamin Cardozo explained graphically in the 1930s, a judge must be both sensitive of precedent and be creative (I much prefer the term ‘creativism’ to ‘activism’. Who wants a judge to be inactive?) At least Lord Cooke (the distinguished New Zealander who sat in the judicial House of Lords) said that he had a positive distaste for ‘activism’, which he described as ‘a term of dubious import but often having a connotation of remedy’. I have cited in extenso the remarks of Lord Dyson MR on his observation in the Supreme Court in a separate assenting judgment, simply because of his willingness (with others) to alter the law of immunity for legal liability of expert witnesses before the courts, without more ado. The two out of seven
11 [2011] 2 AC 398.
VII Inactivity of Parliament on Expert Evidence in Criminal Proceedings
I gave examples of how the activities (or inactivities) of Parliament, often prompted by political decisions, should not, in themselves, constitute defer- ment to Parliamentary discussion, debate and decision-making. The reasons, good or bad, for non-activity of Parliament should never be regarded as good government. The courts themselves, in considering passing the buck to Parliament, must take account of the passage of time that is the inevitable
12 1554 Plowden 118. 13 [1995] 2 AC 296.
VIII Parliament Inactivity on the Offence of Homicide
The second example is the more telling and socially important. It involves the basis of our law on homicide. As long as 20 years ago, Lord Mustill began his judgment referring to the English law as ‘a conspicuous anomaly’ and went on to explain that the law was ‘permeated by anomaly, fiction, misnomer and
IX Judicial Restraint
Judicial restraint is one of those familiar phrases that is full of meaning and in practice determines too little substance. It has its place, but needs to be used wisely. It depends on the emanation of the precise sense: does it come from a
The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions.
It has the great merit of being based on an articulated awareness of the contri- bution each of the institutions of good government can make to constitutional checks and balances. To close one’s eyes to the frequent inactivity, not to say impotence, to the activities of Parliament (often dictated by political whimsy and motivation that does not induce good government) is not an adequate response of the judge. The instant case in the court of law must always operate; it defends initially the individual against the State. It depends for its constitu- tional effectiveness on the existence of the restraints within Parliament. Absent parliamentary restraint, judges operate a constitutional logic for a rule that intrudes on behalf of the individual. And the citizen expects that the pow- ers of the State are shared among the constitutional institutions according to the nature of the exercisable powers. What should be the principles of judicial restraint? Nothing generally should be barred from judicial restraint, if only because any remedy against
14 [2005] 2 AC 68, 102.
Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately it is grounded in social and moral values. These val- ues, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next.
X Judicial Role in Statutory Interpretation
Much of the problem focuses on the construction of the statutory power of parliamentary language. Until 2000 the rule of statutory construction was the
15 [2006] UKHL 24, at para 4.
16 [1986] AC 484.
If it had, would it not have inserted the qualification? They stressed, not unnat- urally, that this was the first occasion on which the elected government had engaged in housing legislation, a factor of novelty in the search for modern intervention by the State in personal affairs. But if the approach was not that of an interpreter of the legislation, without regard to the Rule of Law which imparted a sense of humanity towards the public’s need for reasonable housing, then the Law Lords could not be faulted. There was some satisfaction from the proponents of Mr Justice Hodgson, that in the Housing and Planning Acts 1986 – the year after Puhlhofer – Parliament promptly disclosed its true hand by reversing the Law Lords. So much for par- liamentary intention, or the literal rule of statutory construction of the 1977 legislation!
XI Conclusion: The Scope of Judicial Review
What particularly disturbed the commentators of that period was the Law Lords’ dampener of the concept of judicial review. Put aside the Lord Chancellor’s desire to curb the use of judicial review by the instrument of lim- iting the time for applying and reducing the scope of the remedy, by filtering out of the system of access the cases that are insufficiently arguable. Through Lord Brightman’s single judgment they said, with vigorous endorsements, that they were ‘troubled by the prolific use of judicial review for the purpose of challenging the performance of local authorities in their function’, and no doubt (for the time immediately thereafter) they would have included central government activities in their injunction. But all that changed in the 21st cen- tury with the arrival of the Human Rights Act 1998. Not only did that Act rein- force the use of judicial review, it also encouraged the judiciary to view its new-found functions of elevating human rights and fundamental freedoms from its international law perspective by determining ‘as near as possible’ the compatibility of those rights with English legislation. Events were thereafter (if not before) assumed to share, in dialogue with executive government and leg- islature, the burden of good government. Lord Bingham’s 2011 book, The Rule of Law, was the beginning of the shared responsibility. In the 1990s, as a Deputy High Court Judge, I heard a number of judicial reviews in the homeless person legislation, which was overtaken by the Housing Act 1996. In the course of these reviews I attempted – not always suc- cessfully in the view of the Court of Appeal – to encourage improvements in the quality of administration of some local authorities towards the homeless population. I did not experience the problem of excessive jurisdiction of this
Anton Cooray*
I The Genesis
“Courts ought not to enter this political thicket. … The Constitution has many commands that are not enforceable by courts, because they clearly fall outside the conditions and purposes that circumscribe judicial action. … The Con stitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action, and, ultimately, on the vigilance of the people in exercising their political rights.” So wrote Justice Felix Frankfurter famously in Colegrove v. Green,1 denying a suit to declare unlawful the failure of Illinois to revisit the 1901 apportionment of seats in the legislature and its resultant failure to attain fair representation.2 It is true that Colegrove v. Green was narrowly construed by Justice Frankfurter himself in Gomillion v. Lightfoot,3 and subsequently overruled in Baker v. Carr:4 But the principle that political questions are non-justifiable remains unscathed. Justice Brennan in Baker v. Carr described the nature and scope of the political question doctrine as follows: “The non-justiciability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the ‘political question’ label to obscure the need for case-by- case inquiry. Deciding whether a matter has in any measure been committed
* Anton Cooray, Law School, City University London, was until recently Professor of Law and 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. 1 328 US 549 (1946). 2 The Court described the suit as an “an appeal to the federal courts to reconstruct the electoral process of Illinois in order that it may be adequately represented in the councils of the Nation. Because the Illinois legislature has failed to revise its Congressional Representative districts in order to reflect great changes, during more than a generation, in the distribution of its population, we are asked to do this, as it were, for Illinois.” 3 364 US 339 (1960). 4 369 US 186 (1962).
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_014
5 Ibid., 210–211. 6 Ibid., 217. 7 National Federation of Independent Business v Sebelius 567 US __ (2012), decided on 28 June 2012. 8 For a useful commentary on “political questions” from a UK point of view see Paul Daly, “Justiciability and the ‘Political Question’ Doctrine” 2010 PL 160.
II Developments in the UK and Hong Kong
Courts of England and Hong Kong have expressed similar sentiments. In the recent case of R (on the application of MM, Majid and Javed) v. Secretary of State for the Home Department,9 which concerned Immigration Rules which pre scribed a minimum income requirement to sponsor an immigration applicant, Justice Blake referred to “the tensions between the competing calls for judicial respect for sensitive issues of policy-making by the democratically account able executive and judicial scrutiny with an appropriate degree of intensity of rules that affect the enjoyment of a fundamental human right.”10 In the Hong Kong case of Clean Air Foundation Ltd & Another v. Government of HKSAR Harman J said: “It has long been accepted that policy is a matter for policy- makers and that to interfere with the lawful discretion given to policy-makers would amount to an abuse of the supervisory jurisdiction vested in the courts.”11 In a recent case dealing with the question whether certain restrictions in a land use plan severely constrained the building design on the applicant’s land Reyes J said that “whether restrictions ‘severely constrain design’ is not a ques tion appropriate to a judicial review. The question is subjective in nature. It is for the Board, to the extent needed for a planning decision, to assess whether a restriction which it intends to impose will or will not unduly constrain design. The Court can claim no expertise on matters of design and must accord all due deference to the Board’s assessment of such question.”12
III Separation of Powers
The demarcation of areas of competence of the three branches of government derives from the doctrine of separation of powers, which plays a crucial role in the constitutional order throughout the common law world. It has featured more prominently in the USA and the Commonwealth countries13 than in the UK, which has no written constitution as such. The reason for the somewhat
9 [2013] EWHC 1900; [2013] WLR (D) 280. 10 Ibid., [94]. 11 [2007] HKEC 1356, [32] 12 Hysan Development Co Ltd v. Town Planning Board [2012] HKEC 1266, [18]. 13 For the most recent reference to the concept of separation of powers as a “fundamental principle” in Westminster Model constitutions, see Surratt and others v. Attorney General of Trinidad and Tobago [2008] 1 A.C. 655, PC. See also Seepersad v. Attorney General of Trinidad and Tobago [2013] 1 AC 659, PC.
14 R v. Hinds [1977] AC 195, PC, the “Jamaican Gun Court Case” is a frequently cited case to illustrate this principle. 15 The most celebrated decision is that of the Privy Council in the Ceylon case of Liyanage v. R [1967] 1 AC 259, PC. 16 [2007] QB 783, CA. 17 For instance, as noted by Judge lcj, in the context of witness anonymity in the criminal courts, the Criminal Evidence (Witness Anonymity) Act 2008 in effect set aside the deci sion of the House of Lords to the contrary effect in R v. Davis [2008] 1 AC 1128, HL.
18 R (on the Application of Rob Evans) v. Her Majesty’s Attorney General [2013] EWHC 1960 (Admin), 12]. 19 Ibid., [9]. Judge lcj noted that freedom of information legislation in several common wealth jurisdictions including Canada and Australia, however, provide for an executive override. 20 Ibid., [89] 21 Office of Government Commerce v. Information Commissioner [2008] EWHC 737. See also Mereworth v. Ministry of Justice [2011] EWCA Civ 1796, CA and R v. Chaytor [2011] 1 AC 684, SC.
IV From Common Law to Constitutional Government
Under the common law, the doctrine of separation of powers had to operate within the overriding doctrine of supremacy of Parliament, in the sense that legislative acts were non-justiciable and that administrative action could not be impugned so long as the administrative agency had acted within the powers conferred on it by the parent legislation. To the extent that administrative action was legislation-compliant, the only constraint upon it was the funda mental concept of the Rule of Law which required that administrative action had to be interpreted, as far as circumstances permitted, to uphold and not to restrict citizen’s rights. As a result of the UK’s European Union membership, the fairly narrow scope of judicial control of administrative action under the common law has given way to an ever-expanding supervisory role especially in respect of Convention rights, which are specifically incorporated through the Human Rights Act. UK courts do not have the power to declare UK legislation invalid for infringement of Convention Rights, unlike in the USA or Commonwealth countries such as India or Australia where inconsistency with the Constitution invalidates legis lation. However, the primacy of European law has put the common law doc trine of supremacy of Parliament in serious jeopardy. In relation to administrative action, there has been serious criticism of the traditional view that judicial review is based on ultra vires or legality. The crit ics have argued that wider principles of good governance must provide the yardstick for determining validity of administrative action. They have argued that the judiciary must have regard not so much to Supremacy of Parliament as to the supremacy of individual rights. There has not only been an academic debate to which eminent judges also have contributed: Judicial decisions themselves have had to confront and deal with the debate.22 As a starting point, courts have recognized that there are certain areas which are best reserved to the legislature or the administration. These “forbidden areas”23 include, for instance, “making treaties, making war, dissolving parlia ment [and] mobilising the armed forces.”24 The courts have, however, at the
22 See for an informative survey of the literature and a useful commentary, Murray Hunt, “Sovereignty’s Blight: Why Contemporary Public Law Needs the Concept of ‘Due Deference’?” in Bamforth and Layland (eds), Public Law in a Multi-Layered Constitution (2003: Hart), pp. 337–370 and more recently T R S Allan, “Judicial Deference and Judicial Review: Legal Doctrine and Legal Theory” (2011) 127 LQR 96. 23 See R (on the application of Abbasi) v. Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76, [106] per Lord Phillips, CA. 24 See Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, HL.
25 See Taylor LJ in R v. Foreign Secretary, Ex p Everett [1989] QB 811 at 820. 26 [2006] EWCA Civ 1689 (CA), [85]. See the stimulating essay by David Dyzenhaw on “The Politics of Deference: Judicial Review and Democracy” in Michael Taggard (ed), The Province of Administrative Law (1997: Hart), Chapter 13, where he draws a distinction between “submission” and “respect.” 27 [2001] 2 WLR 1622, [28], CA. 28 See for instance Daly v. Secretary of State for the Home Department ;[2001] 3 All E.R. 433; [2001] 2 WLR 1622, [27], HL and Jeffrey Jowell, “Due Deference under the Human rights Act” in J Jowell and J Cooper (eds), Justice/UCL Seminars (2003: Hart). 29 [1986] 1 All ER 199; [1986] AC 240, HL. 30 Article 11(2) of the Basic Law provides: “No law enacted by the Legislature of the Hong Kong Special Administrative Region shall contravene this law.” Chief Justice Andrew Li
V Some Illustrative Cases from Hong Kong
Operating within a constitutional and administrative structure, whose guiding principles are similar to those obtaining in the UK, the Hong Kong courts have had to deal with the question of judicial role in relation to legislative and administrative action in a number of interesting cases. We will now set out some of these interesting cases and evaluates the principles which guided the courts in the exercise of judicial review powers.
A Worsening Air Pollution and Government’s Slow Response
Clean Air Foundation Ltd & Another v. Government of HKSAR31 concerned a judicial review application seeking court’s intervention to force the govern ment to take immediate and meaningful action to combat Hong Kong’s wors ening air pollution. For this purpose the applicants asked two declarations, first that the government has an obligation to protect the “right to life” of Hong Kong residents from harmful effects of air pollution and secondly that the existing environmental legislation is invalid for failure to comply with this con stitutional obligation. Hartmann J, a judicial review specialist, had no hesita tion in refusing leave to proceed. Hartmann J observed that under the Basic Law it is for the Government to formulate and implement policies (Article 62) and for the Chief Executive to decide whether, and to what degree, a government policy was to be executed (Article 48). He emphasised that a government policy is beyond judicial reproach so long as it is lawful and that a policy is not to be regarded as unlaw ful merely because it is unwise or shortsighted or retrogressive.32 In support of this he quoted from the judgment of Lord Hailsham in Chief constable of the North Wales Police v. Evans33 where it was said that judicial review
emphatically stated in the Court of Final Appeal decision in Ng Ka Ling and Others v. Director of Immigration [1999] 1 HKC 291, at 322, that Hong Kong courts undoubtedly have the jurisdiction to examine constitutionality of legislative and administrative action. He said that “the exercise of this jurisdiction is a matter of obligation, not of discretion.” 31 [2007] HKEC 1356. 32 Ibid., [32]. 33 [1982] 1 WLR 1155, at 1160, HL.
“is intended to see that the relevant authorities use their powers in a proper manner…[and not] to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question.” In essence, Hartmann J viewed the judicial review application as an invita tion for the court to judge the merits of government policy or more accurately to inquire why the government had failed to pursue some of its policies. The judge dismissed the application for leave to proceed with a judicial review application and said that courts would not entertain a request to “review the merits of policy in an area in which Government must make difficult decisions in respect of competing social and economic priorities.”34 In the more recent case of Chu Yee Wah v. Director of Environmental Protection,35 which concerned the validly of the environmental impact assess ment report of the proposed “Hong Kong-Zhuhai-Macau Bridge project,” the Court of Appeal, while it was prepared to examine whether the assessment had complied with the statutory requirements, refused to enter into a discus sion on the desirability or adequacy of government policy. The Court of Appeal agreed with the view expressed by Fok J in the Court of First Instance: “Nor is this case a debate about the adequacy of the air quality objectives currently in force in Hong Kong under the Air Pollution Control Ordinance (Cap.311). That is a matter of policy and, so long as lawfully determined and executed, policy is not a matter for the courts. No one can seriously question that air quality in Hong Kong is a matter of concern. But [as Reyes J said in Ng Ngau Chai v. Town Planning Board]36 the Judiciary cannot manage the environment. That is the role of the Executive.”37
B Sexual Discrimination and Legislative Policy
Leung v. Secretary of Justice38 is a case where constitutionality of legislation was successfully challenged on a judicial review application. There, the applicant challenged the constitutionality of certain sections of the Crimes Ordinance. His argument was that the prohibition contained in the ordinance against
34 [2007] HKEC 1356, [43]. This is reminiscent of the view expressed by Hoffmann J in Stoke on Trent City Council v. B & Q [1991] 1 AC 49; [1990] 2C.M.L.R. 377 (dealing with legality of Sunday trading). 35 [2011] 5 HKLRD 469, CA. 36 [2007] HKEC 1207, [28]. 37 [2011] 5 HKLRD 469, [30]. 38 [2006] HKEC 1763, CA. A UK parallel is Sutherland v. United Kingdom (The Times, 13 April 2001), ECHR.
(1) While as a general rule judicial review concerns some administrative act, there may be circumstances where legislation itself may be the subject of review. (2) Courts’ function being to settle disputes, they would not generally decide purely academic or hypothetical legal questions. However, where the legal issue can be determined without reference to a disputed facts situa tion and where legal arguments for and against the legal challenge are well presented to the court, there is no objection to the court assuming jurisdiction. In fact, Article 35(1) of the Basic Law refers to the right of access to courts and the need for timely protection of rights through judicial remedies. (3) Where the court is convinced that the impugned legislation is clearly unconstitutional, it may be a travesty of justice to refuse to grant the application merely because the applicant has not been the victim of an unlawful administrative act. As Advocate General Jacobs had said in Union de Pequenos Agricultores v. Council of the European Union “individ uals clearly cannot be required to breach the law in order to gain access to justice.”39 (4) In exceptional circumstances a declaration may be directed to any pos sible unlawful action in the future. In the present case there was a real likelihood of such action being taken not only against the applicant but any other homosexual.
39 [2003] QB 893, [43].
Unlike in the case of Clean Air the court ventured to declare the impugned legislation invalid. Hartmann J rejected the argument that the legislature must be given a free hand in determining whether it was in the public interest to regulate more strictly consensual sex between males, reflecting the conserva tive attitude of the Hong Kong community. While agreeing that in the generality of cases the courts would defer to legislative policy, Hartmann J was of the view that the present legislation which predated the Hong Kong Bill of Rights seri ously compromised the basic democratic value of equality. Citing Lord Hope in the leading case of R v. DPP ex p Kebilene & Others40 Hartmann J said that in cases involving rights of high constitutional importance courts would give less deference to the legislature, unlike in cases concerning social or economic pol icy where courts more readily recognise “a discretionary area of judgment.” Hartmann J held that even where the majority supported a discriminatory measure judges must stay steadfast to protect individuals from unjustified dis crimination, following the view expressed by Lord Hoffmann in R (Alconbury Development Ltd & Others) v. Secretary of State for the Environment, Transport and the Regions.41 In the recent case of W v. Registrar of Marriages,42 the Court of Final Appeal considered whether the statutory requirement that a marriage can be con cluded only between a male and female was unconstitutional. In a lengthy judgment, whose reasoning need not be set out here, the court decided that it was so. However, instead of invalidating the relevant statutory provisions, namely Section 20(1) (d) of the Matrimonial Causes Ordinance and Section 40 of the Marriage Ordinance, the court decided that they must be read and given effect so as to include within the meaning of the words “woman” and “female” a post-operative male-to-female transsexual person whose gender has been certified by an appropriate medical authority to have changed as a result of sex reassignment surgery. Recognising the inevitable role that the legislature must play in formulation of policies in an important area such as marriage, the court suspended the coming into effect of the declaration by twelve months giving time to the legislature to come up with a comprehensive legislative framework to deal with all aspects of sex discrimination against trans-sexuals in the context of marriage. The court explained that while the courts have no diffi culty in deciding whether a claimant satisfies the criteria for entering into mar riage,43 it would be rather unsatisfactory for the court to set out tests of general
40 [2000] 2 AC 326,381, HL. 41 [2001] UKHL 23; [2001] 2 WLR 1389, 1411, HL. 42 [2013] HKEC 716, CFA. 43 Ibid., [147].
C Miscellaneous Cases
There have been several cases where the courts had to consider their jurisdic tion in relation to legislative or administrative policy decisions and exercise of discretion. The principles emerging from a survey of these cases are:
1. Public authorities are entitled to adopt policies as guidance for the exer cise of discretionary powers. So long as discretion is exercised lawfully, courts will not intervene simply because the court would have exercised that discretion differently. Nor would the courts question the adoption of a policy so long as the decision-maker has an open mind in dealing with a factual situation calling for the exercise of their discretion. In Chu Hoi Dick & Another v. Secretary of Home Affairs it was argued that the Secretary for Home Affairs had been wrong not to declare the Queen’s Pier a monu ment under the Antiquities and Monuments Ordinance which would have ensured that the Pier had to be preserved in situ. The Secretary had not made such a declaration, although the advisory committee had rec ommended such action. As a result, the government was able to disman tle the pier and reconstruct it at another place, enabling a new harbour development to take place. The court refused to be drawn into a merits review of government policy. Lam J said: “In judicial review, the court is concerned with the legality of administrative action. The court can exam ine whether an administrative decision has been made in accordance with the relevant legislative provisions and other common law principles securing the procedural and substantive fairness of the process. However, it cannot substitute its own view as regards what decision should be made. Provided that the administrative decision is one a minister or an executive body can lawfully make, the court cannot interfere.”45 2. An area where the courts have been prepared to allow an area of fairly unrestricted operation relates to immigration. Chu Woan Chyi & Others v. Director of Immigration46 provides a good illustration. The case
44 Ibid., [127]–[146]. 45 [2007] HKEC 1471, [1]. 46 [2007] HKEC 553.
concerned Falun Gong activists who were refused entry visas to partici pate in a conference organised by the Falun Gong, which is a proscribed organisation in China, but not in Hong Kong. Hartmann J said that in the area of immigration aliens had restricted rights and immigration authori ties must enjoy wide powers to screen visa applicants. He was of the view that in dealing with a visa application the immigration authorities exer cise an administrative power and therefore there would not necessarily be a right to a hearing. Hartmann J pointed out that courts have consis tently accepted that Hong Kong’s unique geographical, physical, social and economic circumstances make it legitimate for the Director of Immigration to manage a restrictive policy of immigration. It was held that the Director had not acted unlawfully: he had refused entry to the applicants not because of their religious beliefs, but because in his assess ment permitting the applicants to enter Hong Kong would not be in the public interest: “He came to that determination on the basis that, in his view, there were no exceptional circumstances outweighing the impera tives of the intelligence assessment. Whether his determination was, on the merits, right or wrong, is not the issue. The issue is solely whether he acted within the limits of his broad discretionary power and clearly he did.”
Recently the Court of Final Appeal has reiterated the position that the courts would not question immigration policies of the government, for instance the policy not to grant asylum in Hong Kong. The court, however, emphasised its duty and power to question whether govern ment officials exercising immigration related powers have acted law fully and consistently with the Rule of Law.47
3. The extent to which administrative officers may consider themselves bound by government policy came up for discussion in Lai Tak Shing v. Director of Home Affairs.48 There, the Minister had refused the applicant’s request to amend a Schedule of the Village Representative Elections Ordinance by adding a certain village to the list of indigenous villages in it, because that village could not be considered an indigenous village according to the relevant government policy. If a village is an indigenous
47 D v. Director of Immigration [2013] HKEC 428, CFA. 48 [2006] HKEC 1873, CA.
village, there is provision for the election of an indigenous villager to represent their interests in addition to the election of a representative to generally look after the village affairs. The Court of Appeal affirmed the decision of the Court of First Instance refusing the application. On the question whether the Minister had fettered his discretion by follow ing a government policy, which had been endorsed by the Legislative Council, the Court of Appeal observed that the adoption of a legislative or administrative policy provides for certainty. But at the same time, there must be sufficient flexibility in the application of such a policy in order to accommodate any special circumstances of a particular case. It is only an inflexible policy that would fetter administrative discretion. Thus, it was open to the government to adopt a policy regarding what criteria should be used in determining whether a village is an indigenous village.
VI Conclusion: How does Independence of the Judiciary Fit into all this?
We uphold the independence of the judiciary for a very special reason: namely, for courts to be able to perform their function as the guardian of the constitu tion and law. For this purpose, first, people must have unobstructed access to the judiciary, which is almost universally regarded as a fundamental right whether such right is expressly protected by the constitution or not. Secondly, the judiciary must have the power to decide whether or not the legislature, the executive, an individual or a legal entity has acted lawfully. It is because the judiciary has to decide on legality of legislative and administrative action that constitutions have to provide special safeguards to prevent the government from interfering with the performance of judicial functions. The core of the doctrine of separation of powers is that judicial power is vested exclusively in the judiciary—subject to special exceptions like privi leges jurisdiction of Parliament—and is not to be shared, or interfered with, by the other two branches of government. The flip side of the coin is that legisla tive powers are vested in the legislature, subject to legislative powers— described as secondary legislation—that are expressly or impliedly vested in the executive to supplement primary law. Apart from some powers of a legisla tive nature—such as making rules of court—the judiciary has no legislative powers. As far as judicial power is concerned, some dispute resolution pow ers that used to be part of the ordinary jurisdiction of courts have been taken away and granted to special tribunals and executive agencies that have been
49 Of course, courts use the language of “null and void” in relation to a law that it finds unconstitutional and for all practical purposes such a law will have no effect. 50 [2013] HKEC 716, CFA. 51 Ibid., [116]. 52 Recently the Home Secretary announced plans to exclude power to deport from the application of Section 8 of the Human Rights Act, which protects the right to family life. See “May lays down the law over foreign criminals’ human rights: Judges will be forced to reject claims to a family life” Daily Mail of 18 February 2013: http://www.dailymail.co.uk/ news/article-2280291/Theresa-May-lays-law-Judges-forced-reject-claims-family-life -foreign-criminals-human-rights.html. 53 A commentator argued that prisoners’ voting rights ought to be decided by Parliament and not by courts. See “Prisoners’ Right to Vote: A Commentary” in Daily Telegraph of 2 November 2010. http://www.telegraph.co.uk/news/uknews/law-and-order/8104458/ Prisoners-right-to-vote-commentary.html.
So long as independence and integrity of the judiciary remains unimpaired, and judicial decisions are reasoned and based on ideas of good governance and the Rule of Law, judges will not feel inhibited in inquiring into all aspects of governance. Our survey of a selection of Hong Kong and UK cases show that courts have taken a clear stand on the implications of the separation of pow ers: namely that the legislature and the administration are subject to judicial review but that the fundamental principle that guides judicial review is the respect for legitimate decision making by these two branches of government.
Fryderyk Zoll1
I The Problem
It is a characteristic problem for Poland in the last 20 years that the jurists appear in different roles in the society. One person can be a law professor and an advocate or a professor and a judge at the same time. There are judges who write commentaries on the statutes or even the notes to the judgements of the courts or reviews of the case law. The judges in Poland are prominent members of the law commissions, drafting the laws. One may ask whether it is healthy for the system of justice when the jurists trespass the border line of their pro- fessions and appear in different roles in the society. This question is quite a fundamental one for the functioning of the system of justice and for the under- standing of the role of the lawyers and other jurists in the system of the society. The answers to all these questions are not self-evident. It depends on the fun- damental assumption of the legal system and the general expectation towards the jurists. In this paper I would like to discuss the question of whether judges should be active as participants in the discussion about law outside of the courtroom. To clarify certain points of this discussion I would also like to indicate another potential conflict between the role of the law professor and practicing lawyer. It is an important introduction to present the whole picture of the various conflicts appearing when different legal professions are exercised simultaneously.
II The Role of the Different Legal Professions
The Polish legal system belongs to the Civil Law tradition. It is characterized by the important role of the academic legal doctrine in the formulation of the
1 Professor of law, Jagiellonian University and University of Osnabrück, Member of the Polish Codification Commission.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_015
III Can Law Professors be Practicing Lawyers?
Before presenting the problem related to the judges, I would like to focus on the problem whether or not professors should be practicing lawyers. It shows that the question of the conflict of roles played by various legal professions is not restricted only to judges. Formally, there are no obstacles for the professors of Polish law schools to run a legal practice. The economic conditions of the transition time in the early 90s, however, have forced many scholars to seek additional sources of income. At this time the profession of professor had rather become a hobby or side-activity. This situation has produced various effects. The participa- tion of highly qualified academic jurists in the legal profession has had a positive influence on the quality of the system of justice. The universities have undeniably benefitted from the newly gained practical experience of the professors, but they have also suffered due to the fact that a large part of the academic body did not have its focus on the law school any more.3
2 On the principles of the Continental Law, see the script of the Ministry of Justice on the “Continental Law – global, predictable, flexible, cost-effective,” editorial team (responsible): Jean-Marc Baïssus (Fondation pour le Droit Continental), Rechtsanwalt Axel C. Filges (Bundesrechtsanwaltskammer), Rechtsanwalt Prof. Dr Friedrich Graf von Westphalen (Deutscher Anwaltverein), Vorsitzender Richter am Landgericht Berlin Lothar Jünemann (drb), Notar Dr Timm Starke (Bundesnotarkammer), Notar Dr Oliver Vossius (Deutscher Notarverein) published by the Association des Juristes Français et Allemands (ajfa), Bundesnotarkammer (bnotk), Bundesrechtsanwaltskammer (brak), Conseil National des Barreaux (cnb), Conseil Supérieur du Notariat (csn), Deutscher Anwaltverein (dav), Deutscher Notarverein (dnotv), Deutscher Richterbund (drb), Fondation pour le Droit Continental (fdc), Université Paris Panthéon-Assas Paris II, Berlin/Paris 2011; C. Graf v. Bernstorff, Deutsches Recht – Globales Recht, Anw-Prax 2011, str. 274–276. 3 F. Zoll, The Challenges of the Mass University and the Civil Law Country Model of Legal Education: How Open Is the Polish University Model to Innovative Teaching and Nurturing
Nevertheless, this is not the place to discuss the result of this development for the legal education in Poland which is an issue of its own. From the per- spective of this paper it is much more important to analyse briefly, whether or not combining these two functions is in compliance with their objectives. In the continental legal tradition, or more precisely in its Germanic variant, the university plays an important role in the system of justice. The professors formulate their opinions concerning the interpretation of the law (in the form of academic writings, but also, what is more controversial in the form of private opinions for the court on behalf of the client) and these opinions are an important factor in the process of the making of legal decisions. This role of the professors requires, however, that the impartiality of the law pro- fessors is secured. In case of the academic professors who also act as advo- cates, the professional roles become unclear and the reliance in the impartiality of the professors suffers. In some Civil Law systems there are some essential limits on allowing the law professors to practice law4 (such limits are also in the USA, enforced by the accreditation rules of the aba).5 Admittedly, these restrictions predominantly serve the protection of the educational and academic purpose of the university. They have, however, quite an important function if the professor should serve as a kind of inde- pendent authority explaining the ambiguities of the legal system. This func- tion is underestimated today and it is rather a side-effect and not the primary purpose of these restrictions. In Poland there are no such restrictions. Albeit there are no surveys concerning the position and prestige of the particular group of law professors, the existing situation must affect the reliance to the professors. They cannot claim to have the status of being an independent arbitrator over the legal system any more. It is sometimes difficult to distin- guish in which role the person is arguing in public – as a lawyer or as inde- pendent researcher.6
of Clinical Programs?, in: D. Ikawa/L. Wortham, The New Law School, Reexamining Goals, Organization and Methods for a Changing World, Cracow 2010, pp. 81 (83–86). 4 German Federal Court (bgh), decision from 10. October 2011, AnwZ (B) 10/10, in: NJW 2012, p. 615 and decision from 13. February 1995, AnwZ (B) 77/94, in: NJW-RR 1995, p. 888; On the incoherency of the work as a professor and the legal profession, see: Federal Constitutional Court (bverfg), decision from 30 June 2009, 1 BvR 893/09. 5 Standard 402 (b) of the aba Standards for Approval of Law Schools 2013–2014, American Bar Association, Chicago Illinois 2013. 6 F. Zoll, in: D. Ikawa/L. Wortham, pp. 81 (82–83); German Federal Court (bgh), decision AnwZ (B) 77/94, in: NJW-RR 1995, p. 888.
IV The Conflicts of the Role Caused by the Judges
Principally, the judges must not exercise other professions.7 There is only an explicit exception for the academic function (also containing specific restric- tions). One may say that the judges are basically not allowed to cause such a confusion of the role played in the system of justice, since they are limited by the law. The truth is, however, that the judges are not free from situations, where there is a confusion concerning the role of the person in the system of the justice, either. Various constellations of these activities may be named. Judges in Poland actively take part in academic discussions. They publish com- mentaries to the laws and statutes, notes to the court decisions etc. There is a growing number of jurists who simultaneously fulfil the duties of university professors and are members of judiciary. Further, the judges in Poland actively participate in the process of legislation, being member of (law) codification commissions. In a certain sense one may argue that the judges in Poland make the law, apply the law and comment the law. Is this multiplication of functions a problem?
A The Judges as Legislators
The judges in Poland often participate in the process of drafting the law. They are members of the law commissions for civil and criminal law and essentially influence the shape of the statutes. Although the judgments in Poland do not have the effect of a precedent, the confusion in the system of the partition of powers is visible. The judges are not the legislators in the narrow sense, but practically they play an extremely important role in the process of legislation. Their participation in such bodies is important due to their practical experi- ence. The judges were always present in the Polish codification commissions. Today, however, their role is increasing. Numerous judges take seats in this com- mission. Their role in drafting the rules on civil procedure is immense. Despite their practical experience, the question arises whether the principle of the sep- aration of powers, rooted in the Polish constitution,8 does allow such an active participation. This principle is not absolute and should rather be understood as certain guidance or direction for the organization of the state. The participation of judges in the process of legislation may also have the consequence that a
7 Art. 86 Ustawy o Ustroju Sądów Powszechnych (Statute on the Structure of Judiciary), Statute from 27 July 2001, Official Gazette 2001 no 98 pos. 1070. 8 Art. 10 of the Constitution from 1997, see on the seperation of power in Poland: B. Banaszak, Konstytucja Rzeczypospolitej Polskiej. Komentarz, Vol 2, Warsaw 2012, Art. 10, para. 1–16.
B Judges Writing Commentaries
In the market of the legal writings, there are numerous commentaries and other books or articles written by judges. Without any doubt, they immensely enrich the discussion on legal matters. They present the views which are not influenced by the particular clients’ needs. They regularly accomplish a high standard of objectivity. Nevertheless, there are some controversies about these writings. The positions presented there are not only supported by the power of the arguments. They are also supported by the formal authority of the judge. The parties may trust the court to decide the dispute according to the positions presented in the papers, not because the arguments are especially convincing but because the judge deciding the case (or the judge of the higher court, who may review the case) has expressed a certain view. It is a kind of rationes imperli which also influences the judge him- or herself, who may feel bound by the opinion presented in the literature. Sometimes the judges write notes to the decisions of other judges. It may undermine the reliability of the judiciary system. But I do not see a problem in this – despite of the issue discussed above. The fiction of one possible legal position or interpretation cannot seriously be maintained. The criticism towards the decision of a colleague obscures the clarity of the decisions from the perspective of the addressees and may weaken the feeling that the decision is “just” but such decision is not released from the discussion. The other judge criticising such a decision, however, finds him- or herself in an unclear situa- tion, whether the source of the criticism results from the authority of the author as a judge or from the quality of arguments. By allowing the judges to be professors at law schools this conflict seems to be accepted by the legislator. The professors are obliged to publish their views and to take part in the legal discussion; the judges should settle their cases in the independent way.
9 It may be disputed whether this situation in Poland would violate Article 7.1. of the Mt. Scopus Approved Revised International Standards of Judicial independence from March 19, 2008, if they would be applicable to this case; the rules are available at http://www .cristidanilet.ro/docs/MtScopusInternationalStandrds.pdf, visited on September 2013.
V Should the Judge Speak Only Through the Judgment?
If such a restriction was accepted in Poland, it would mean a serious revolution in the discussion on law. Its radicalism would probably go too far. The judges in the continental tradition do not have this extremely elevated position as com- mon law judges do. The situation that the same jurists appear in different roles lasts so long that everybody regards this situation as normal. However, it can- not be disregarded that this permanent mixing up of positions of people par- ticipating in the judicial system influences the functioning of the system in negative way as well. At least all Polish jurists should be more reflective about the role which they fulfil in the delicate system of justice. The trespassing of the border between different legal professions produces numerous positive effects, enriching the discussion and improving the law. The picture of the jus- tice system, however, becomes less clear and the rules of finding justice and the law are also inflected by the existing permanent conflict created by the confusion of too many roles in one person. This situation cannot be changed at once. In the period of the transition of the legal system there were just not enough people with sufficient compe- tences to draw clear lines. But we are approaching the point that there are suf- ficient human resources to handle and develop the system without creating the confusions described above. This does not mean that it is necessary to deprive judges from participating in the academic dispute and to entirely exclude them from the process of the drafting of law. A certain proportion, however, must be maintained and also the awareness must grow that such situ- ation despite of all unquestionable benefits still bears risks to the quality of the justice system.
Sergey Nikitin*
I Introduction
Procedural remedies play an important role in the system of procedural independence and impartiality of judges when carrying out justice. This means that the standards that procedural law regulates should provide an objective, impartial and independent review of court proceedings. Of all the procedural remedies, we will look more closely at the matters of the legal procedure of recusing judges, and also some aspects of ensuring judi- cial independence when rendering decisions. Grounds for recusing a judge or for self-recusal are circumstances that give rise to doubt of impartiality, including reasons to suspect the direct or indirect interests of a judge in a case. A judge should not participate in proceedings when there are questions of partiality or potential partiality.1
II Recusal of Judges to Insure Impartiality
The general principles should, to some extent, be elaborated by domestic law and judicial precedent. Indeed, domestic law should contain rather specific and concrete grounds for the recusal (self-recusal) of a judge, and also a sepa- rate (special) legal procedure of establishing the existence or lack of specific grounds and making the decision to recuse a judge. It is thus important that the grounds and procedure of recusal (self-recusal) of a judge have generalities and that they are equally applied irrespective of the type of legal proceedings (criminal or civil).
* Doctor of Law, Professor, Honoured Jurist of the Russian Federation, Pro-Rector of the Russian Academy of Justice, Member of the Higher Qualification Commission of Judges of the Russian Federation. Academic interests – judicial control over legal acts, judicial evi- dence, bankruptcy legislation. 1 Judicial Independence Standards, s. 8.2.
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The concepts of partiality and self-interest may be defined. Conclusions on the partiality (potential partiality) or self-interest of a judge are based on objective and/or subjective factors (circumstances). In this regard, it is very important to specify thoroughly in domestic law and judicial precedent the circumstances that may testify to the partiality or self-interest of a judge in a process. First of all, objective circumstances have to be directly incorporated in pro- cedural law that directly and unambiguously exclude the possibility of a judge participating in a case. Such circumstances could be a) the previous participa- tion of a judge in a case as a lawyer, prosecutor, expert, witness, etc.; b) the previous participation of a judge in considering a specific case in other judicial instances as well as in other arbitration courts; c) the existence of family ties of the judge to any of the participants in a process; or d) a judge being currently under, or previously under, the service of, or otherwise dependent on, one of the parties participating in a case. In addition, it is possible to consider whether a judge has previously spoken publicly or commented on the substance of a case being considered. Other circumstances of the direct or indirect interest of a judge in a case, or grounds for doubting the impartiality of a judge, may also be implemented in procedural law and judicial precedent. The procedure for rendering a decision on recusal is an important element of the legal mechanism of recusing a judge. It is very important that the process used to recuse a judge be regulated by procedural legislation. On the one hand, the procedure should allow those participating in a case the possi- bility of filing well-reasoned petitions on recusing a judge; while, on the other hand, the procedure should exclude the possibility of abusing proce- dural law when filing such a petition, including those that would unreasonably protract proceedings. A judge from a different court should be assigned to review a petition to recuse a judge and to render a corresponding decision, which, for the most part, guarantees an objective review of the matter on recusing a judge.
III Ground for Recusal Under Russian Law
The process of recusing a judge in the procedural legislation of the Russian Federation lacks general regulations. A judge may not review a case in civil proceedings and must be recused if said judge:
1) has participated in a case previously as a prosecutor, courtroom secretary, attorney, witness, expert, specialist and/or an interpreter/translator; 2) is a relative or in-law of one of the parties participating in the case or their attorneys; 3) is personally or indirectly interested in the outcome of a case or there are other circumstances that cause to doubt a judge’s objectivity and impartiality.2
A judge may not participate in criminal proceedings if said judge:
1) is an injured party, a civil plaintiff, a civil defendant or a witness in the current legal proceedings; 2) has been a member of a jury, expert, specialist, interpreter/translator, witness, courtroom secretary, defendant, legal representative of a sus- pect/accused, a representative of an injured party, a civil plaintiff and/or a civil defendant, and a judge also as an interrogating officer, investigator, prosecutor in the proceedings of the current criminal case; 3) is a close relative or relative of any of the parties participating in the pro- ceedings of the current criminal case; 4) is involved in other circumstances that give cause to believe that the judge is personally, either directly or indirectly, interested in the outcome of the current criminal case.3
Arbitration (commercial) court proceedings have a wider range of grounds for recusing a judge. According to article 21 of the capc of the rf,4 a judge may not review a case and must be recused if said judge:
1) has participated in the previous review of a case as a judge and has repeated a review of a case under the requirements of the current code; 2) has participated in the previous review of a case as a prosecutor, judicial assistant, courtroom secretary, representative, expert, specialist, inter- preter/translator or witness; 3) has participated in the previous review of a case as a judge of a foreign court or arbitration court;
2 Civil Procedure Code of the Russian Federation. 2002, art. 16. 3 Criminal Procedure Code of the Russian Federation, 2001, art. 61. 4 Commercial Arbitration Procedure Code of the Russian Federation, 2002.
4) is a relative of a party involved in a case or its representative; 5) is directly or indirectly personally interested in the outcome of a case or there are other circumstance that give rise to doubting a judge’s impartiality; 6) is or previously was under the service of or dependent on a party involved in a case or its representative; 7) has spoken publically or commented on the matters of a case under review.
The indicated different ways to establish grounds to recuse a judge could not likely be fully justified by the specifics of one or another type of judicial pro- ceedings and could give rise to grounds to criticize the procedural doctrine.5
IV The Procedure of Recusal
A single process for deciding to recuse a judge is not embodied in procedural legislation. Therefore, when a court is reviewing a civil or criminal case collec- tively, the matter of recusing a judge is decided by this very same group of judges without the recused judge. A decision to recuse a judge, as petitioned by several judges or by the entire group of judges, is decided by this very court as an entire group of judges by a simple majority of votes. If a judge is reviewing a case individually, then the matter of recusal, as petitioned to a judge, is decided by this very same judge.6 In arbitration (commercial) legal proceedings, the matter of recusing a judge considering a case individually is decided by the chair of an arbitration court, the deputy chair of an arbitration court or the chair of a judicial struc- ture. The issue of recusal declared to several judges or the entire structure con- sidering a case of an arbitration court is similarly resolved. The greatest doubts are raised by a process during which a petition to recuse a judge is resolved individually by the very judge considering a civil or criminal case. It is obvious that if a judge is really interested in the outcome of a case or there are other circumstances giving rise to doubt objectivity, then the judge will not be able to be impartial when resolving the matter of recusal.7 In this
5 Voskanyan M.Zh, “Procedure to resolve self-recusal and recusal of a judge during civil and commercial arbitration proceedings” (2008) 1 Yurist. 6 Criminal Procedure Code of the Russian Federation, 2001, art. 61. See also note 2 above. 7 Eseva E.Yu. “Recusal of a judge during a civil procedure: reality or function?” (2012) 1 Court Administrator.
V The Transfer of the Case to another Judge
An important procedural guarantee of a judge’s independence is restricting the recusal of a judge from a case:
A judge may not be recused from a particular case without sufficient grounds, such as cases of serious illness or a conflict of interest. Any simi- lar reasons as well as a response procedure must be stipulated by the law, and this may not depend on any interests of the government or adminis- tration. The decision to recuse a judge from a case has to be accepted by a body that uses the same judicial independence as the court.9
Implementing this principle envisages the need to embody in domestic legisla- tion the grounds and procedure for transferring a case from one judge to another one. The ban on recusing a judge from a case is not formally set in Russian proce- dural legislation, and there are not norms to the general rules to transfer a case to another judge. A number of special norms are available, which establish separate grounds and procedures to transfer a case to another judge, and in
8 A.T. Bonner in M.S. Shakaryan (ed.), Commentary on the Civil Procedure Code of the Russian Federation (Welby TC; Prospect Press, 2007) p. 62. 9 Judicial Independence Standards, s.7.10.
VI Insuring Judical Independence
Russian procedural legislation lacks sufficient regulation of the grounds and procedure to recuse a judge from a case, meaning that a court manager may take voluntary action; and this could be a factor in decreasing the level of guar- anteed judicial independence. Procedural norms intended to provide judicial independence when review- ing a case and rendering a decision play an important role in the system of guaranteeing legal independence. Russian procedural legislation states directly the principle of judicial inde- pendence and reviewing and resolving a case:
Judges are independent when carrying out justice, and they answer only to the Constitution of the Russian Federation and federal law. Any outside interference of judges, interference in their work for state bodies, self-governing bodies or other bodies, organizations, administra- tive officials or citizens is forbidden and may be prosecuted under the established law. The Constitution of the Russian Federation and federal law establish the guarantee of judicial independence.10
Judicial independence and impartiality when rendering justice is also pro- vided by the principle of the open evaluation of evidence in a case, private chambers, the right of a judge to his/her own opinion, etc.
10 Civil Procedure Code of the Russian Federation. 2002, art. 8. Commercial Arbitration Procedure Code of the Russian Federation, 2002, art. 5.
The principle of judicial independence and answering only to the Constitution of the Russian Federation and federal law is also evident when a judge, having established that the accepted regulatory acts are not consistent with the Constitution of the Russian Federation or federal law, must refuse to apply such acts and must render a decision on a case based on the Constitution of the Russian Federation or federal law.
VII The Issue of Clarification
Along these lines, within the context of judicial independence, I would like to discuss the matter of Russian courts applying so-called clarifications of the higher courts that they render on various matters of applying the norms of material and procedural rules; as well as matters of the obligations of the indi- cated higher-standing judicial instances (cassation or supervisory), which it grants to lower-standing instances when canceling its decision and transfer- ring a case for a new review. Among established Russian legal traditions is when higher judicial bodies publish clarifications of judicial precedent in abstract form without reference to a specific case. In this case, we are talking about the legal documents of the higher judicial bodies that contain clarifications on practice: decrees of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, and reviews of judicial precedent approved by the Judicial Board of the Supreme Court of the Russian Federation. It should be noted here that clarifications of the higher judicial bodies carry substantial regulatory significance for judicial precedent as well as for other enforcement practice. They play a substantial role in overcoming the breaches in legal legislation that contradict and conflict with current and functioning legislation, and they act as the most important instrument for ensuring the unity of judicial precedent and the predictability of decisions rendered by the Russian courts. For a long period of time, matters of judicial legislation in Russian jurispru- dence have been under discussion, including the matter of the legal nature of the clarifications of the higher judicial bodies. One of the main discussions concerns whether these clarifications should be considered as sources of law, and how legally binding these legal acts are for a court that is reviewing a specific case. Those who support judicial precedent consider the acts of the higher courts of the Russian Federation to be a source of Russian law, and that they contain
11 Zhuikov V.M. “On the matter of judicial precedent as a legal source” in Judicial precedent as a legal source (Moscow 1997). pp. 16–23. Marchenko M.N. Judicial legislation and mag- isterial law (Moscow 2008) pp. 418–419. 12 Gros L.A. “On the Decree of the Plenum of the Supreme Court of the Russian Federation ‘On the judicial ruling’” (2004) 10 Arbitration and civil procedure. pp. 37–43. Nersesyants V.S. “Russian courts do not have law-making powers” in Judicial precedent as a legal source (Moscow 2000) p. 111. 13 Bonner A.T. “Legal precedent in the Russian legal system” (2004) 3 Russian annual of civil and arbitration proceedings. p. 160. Cherdantsev A.F. Interpretation of the law and con- tracts. P. II. (Yekaterinburg 2000) pp. 55–56. 14 paragraph 6, article 58 of the Law of the rsfsr “On Judicial Administration of the RSFSR,” paragraph 2, article 13 of Federal Constitutional Law No. 1-fcl “On Arbitration Courts in the Russian Federation” of 28 April 1995. 15 Bulletin of the Supreme Court of the Russian Federation (2004) 2.
HP Lee*
In Australia, the judiciary at Commonwealth, State and Territory level, can be seen to be a branch of government which is separate from the legislative and executive branches and independent of them. The relationship between the judiciary and the other branches of government is generally one of mutual respect and there is a general subscription by all branches to the fundamental importance that there should be no unprincipled intromission into each oth- er’s sphere of functions. The Commonwealth judiciary and the Commonwealth Parliament are pro- vided for in the Commonwealth Constitution, an instrument described by Dixon J in the Australian Communist Party case2 as an instrument framed in accordance with many traditional conceptions. He added: “Among these I think that it may fairly be said that the rule of law forms an assumption.”3 In McGraw-Hinds (Aust.) Pty Ltd,4 Murphy J referred to the operation of the rule of law as an implication arising from the nature of Australian society.5 In attempting to understand the relationship between the judiciary and the legislature in Australia, it is essential to appreciate some fundamental proposi- tions. The first is that the doctrine of parliamentary sovereignty is subject to the Constitution which provides a federal polity. The division of legislative powers between the Commonwealth and the States must of necessity require the judiciary to act as an arbiter when there is a conflict over the exercise of powers by the national parliament and a State parliament. Furthermore, as the
1 This article is a revised and expanded version of a paper delivered at a conference on judicial independence in Vienna, 19–21 May 2011. * HP Lee holds the Sir John Latham Chair of Law at Monash University. Professor Lee’s publica- tions include The Australian Judiciary (2nd ed. Cambridge University Press, 2013) (co-author) and Judiciaries in Comparative Perspective (Cambridge University Press, 2011) (editor). 2 Australian Communist Party v. Commonwealth (1951) 83 CLR 1. 3 Ibid., at p. 193. 4 (1979) 144 CLR 633. 5 Ibid., at p. 670.
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I Judicial Intervention in the Law-Making Process
The High Court of Australia in Egan v. Willis8 remarked that “the primary role of Parliament is to pass laws.”9 In Australia some doubts have been expressed as to whether Australian courts have a jurisdiction to intervene in the law- making process by, for instance, issuing an injunction to restrain the presenta- tion of a Bill to the Governor (at State level) or the Governor-General (at fed- eral level) for the royal assent. An injunction is a remedy which has coercive effect. Lord Diplock, speaking for the majority of the Privy Council in Rediffusion (Hong Kong) Ltd v. Attorney-General of Hong Kong,10 said that in Australia, the question was not one of jurisdiction rather than of a “settled practice.”11 This issue in Australia has arisen in the context of an application for
6 (1952) 86 CLR 169. 7 Ibid., at p. 179. 8 (1998) 195 CLR 424. 9 Ibid., at pp. 451–452 per Gaudron, Gummow and Hayne JJ. 10 [1970] AC 1136. 11 Ibid., at p. 1155.
It is in this way that the Courts of Australia have achieved an appropriate balance between: (a) The fulfilment of their role as guardians of the rule of law, including in respect of any requirements that may be laid down by law and which parliament is obliged to obey in respect of the passage of a particular law; and (b) The respect which is conventionally accorded to a separate branch of Government with its own ancient rights and privileges reflected in the Bill of Rights of 1689, established by longstand- ing tradition and recognised in many places, including in the law of Parliament.15
12 (1990) 20 NSWLR 188. 13 Ibid., at p. 193. 14 Ibid., at p. 199. 15 (1990) 20 NSWLR 188, 198–199. The cases referred to by Kirby P included Attorney-General (NSW) v. Trethowan (1931) 44 CLR 394; McDonald v. Cain [1953] VLR 411; Hughes and Vale Pty Ltd v. Gair (1954) 90 CLR 203; Clayton v. Heffron (1960) 105 CLR 214; Cormack v. Cope (1974) 131 CLR 432; Rediffusion (Hong Kong) Ltd v. Attorney-General of Hong Kong [1970] AC 1136.
Despite adopting a policy of judicial restraint in relation to intervention in the law-making process, a caveat was expressed by Barwick CJ in Cormack v. Cope16 to ensure that the courts retain their role as guardians of the Constitution:
Whilst it may be true the court will not interfere in what I could call the intra-mural deliberative activities of the Parliament, it has both a right and a duty to interfere if the constitutionally required process of law- making is not properly carried out…17
Barwick CJ was not prepared to accept that judicial intervention was confined to declaring a law void only after it had completed the process. He said:
I[I]n an appropriate, though no doubt unusual, case when moved by par- ties who have an interest in the regularity of the steps of the law-making process at the time intervention is sought, the Court is able, and indeed in a proper case bound, to interfere.18
In Victoria v. Commonwealth (pma case)19 the High Court invalidated the impugned legislation on the basis that it failed to comply with the interval of three months between when the Senate first rejects or “fails to pass”20 the Bill and the second passage of the Bill in the House of Representatives as set out in Section 57 of the Commonwealth Constitution. Section 57 provides a mechanism for resolving “deadlocks”21 between the two houses of parliament. On this occasion, the law was challenged after it had been assented to. If it had been a challenge to restrain the further deliberations of the proposed law when it was clear that the three months interval was not satisfied, arguably this would amount to a likely case for the courts to intervene even before all the steps in Section 57 had been completed as this would be a case where the “constitutionally required process of law-making”22 has not been properly carried out.
16 (1974) 131 CLR 432. 17 Ibid., at p. 453. 18 Ibid., at p. 454. 19 (1975) 134 CLR 81. 20 Ibid., at p. 124. 21 Ibid., at p. 195. 22 (1974) 131 CLR 432 453.
II Legislation Impacting on Courts and Court Decisions
In Australia there is no equivalent of the provision in the United States Constitution which prohibits both the United States Congress and the State legislatures from passing such legislation. Nevertheless, in Polyukhovich v. Commonwealth,23 the High Court expressed the view that federal legislation amounting to a Bill of Attainder would be invalid.24 Such legislation would be viewed as amounting to an unconstitutional “usurpation”25 of the judicial power. However, there is judicial authority that an ex post facto law is valid.26 In Australian Building Construction Employees’ and Builders Labourers’ Federation v. Commonwealth,27 the High Court said:
It is well established that Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution…It is otherwise when the legislation in question interferes with the judicial process itself, rather than with the substantive rights which are at issue in the proceedings.28
In Chu Kheng Lim v. Minister for Immigration,29 a statutory provision that required a court “not to order the release from custody of a designated person” was held to be invalid as it amounted to “a direction by the Parliament to the courts as to the manner in which they are to exercise their jurisdiction.” There are judicial indications that legislative attempts by parliament to require a court “to proceed in the manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to the facts determined in accordance with rules and procedures which truly permit the facts to be ascertained”30
23 (1991) 172 CLR 1. 24 A Bill of Attainder is “a legislative enactment which inflicts punishment without a judicial trial”: ibid at 535 per Mason CJ. A Bill of Pains and Penalties is one where the penalty is other than death. 25 (1991) 172 CLR 1 708. 26 R v. Kidman (1915) 20 CLR 425. 27 (1986) 161 CLR 88. 28 Ibid., at p. 96 per Gibbs CJ, Mason, Brennan, Deane and Dawson JJ. 29 (1992) 176 CLR 1. 30 Nicholas v. The Queen (1998) 193 CLR 173, 208–209 per Gaudron J.
The fact that Australia is bound by, or a party to, a particular interna- tional instrument, or that an enactment reproduces or refers to a particular international instrument, does not give rise to a legitimate expectation, on the part of any person, that: (a) an administrative deci- sion will be made in conformity with the requirements of that instru- ment; or (b) if the decision were to be made contrary to any of those requirements, any person affected by the decision would be given notice and an opportunity to present a case against the taking of such a course.33
The Commonwealth Parliament subsequently abandoned these attempts. The High Court in a subsequent case has foreshadowed a retreat from the Teoh ruling regarding the use of ratification of a treaty by the Australian polity.34 Although “the role of international treaties in generating a legitimate expecta- tion”35 was not in contention in Lam, the extent to which the High Court in
31 Ibid. 32 (1994) 183 CLR 273. 33 Administrative Decisions (Effect of International Instrument) Bill 1995s. 4, s. 4(a), s. 4(b). 34 Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex part Lam (2003) 214 CLR 1. See A Duxbury, “The Impact and significance of Teoh and Lam” in M Groves and H P Lee (eds), Australian Administrative Law – Fundamentals, principles and Doctrines (Cambridge 2007) 299, 307. 35 Ibid., at p. 315.
Lam dealt with the issue “is an indication of the depth of feeling regarding the need to maintain the proper constitutional functions of the executive, the par- liament and the judiciary.”36
III Protecting the Integrity of State Courts
The High Court has imposed a constraint on the legislative capacity of state parliaments by invalidating legislation enacted by state parliaments which affects the integrity of state courts. An ad hominem piece of legislation, the Community Protection Act 1994 (nsw) of the New South Wales Parliament was invalidated in Kable v. Director of Public Prosecutions.37 The legislature, through the extraordinary enactment, was creating a perception that the judiciary was “apt to be seen as but an arm of the executive which implements the will of the legislature.”38 In South Australia v. Totani,39 French CJ said that “judicial inde- pendence is an assumption which underlies Ch III of the Constitution, con- cerning the exercise of the judicial power of the Commonwealth”40 and that it should be maintained in “reality and appearance for the courts created by the Commonwealth and for the courts of the States and Territories.”41
36 A Duxbury, “The Impact and significance of Teoh and Lam” in M Groves and H P Lee (eds), Australian Administrative Law – Fundamentals, principles and Doctrines (Cambridge 2007) 299, 315. 37 (1996) 181 CLR 51. For an analysis of Kable see HP Lee, “The Kable Case: A Guard-Dog that Barked But Once?” in G Winterton (ed), State Constitutional Landmarks (Sydney 2006), pp. 390–415. The literature on Kable is extensive. See generally: G Carney, “Wilson and Kable: the Doctrine of Incompatibility – an Alternative to the Separation of Powers?” (1997) 13 Queensland University of Technology Law Journal 175; R Hardcastle, “A Chapter III Implication for State Courts: Kable v DPP” (1998) 3 Newcastle Law Review 13; P Johnston and R Hardcastle, “State Courts: the Limits of Kable” (1998) 20 Sydney Law Review 216; P Johnston, “State Courts and Chapter III of the Commonwealth Constitution: Is Kable’s Case Still Relevant?” (2005) 32 University of Western Australia Law Review 211; R Orr, “Kable v DPP: Taking Judicial Protection Too Far?” (1996) 11 AIAL Forum 11; K Walker, “Persona Designata, Incompatibility and the Separation of Powers” (1997) 8 Public Law Review 153, 164–166; F Wheeler, “The Kable Doctrine and State Legislative Power Over State Courts” (2005) 20(2) Australasian Parliamentary Review 15; A A McCunn, “The search for a single standard for the Kable principle” (2012) 19 Australian Journal of Administrative Law 93. 38 Ibid., at p. 134 per Gummow J. 39 State of South Australia v. Totani (2010) 242 CLR 1. 40 (2010) 242 CLR 1, 20 per French CJ. 41 Ibid.
Given that the text and structure of Ch III of the Constitution postulate an integrated Australian court system for the exercise of the judicial power of the Commonwealth, French CJ said that there should be “no distinction, so far as concerns the judicial power of the Commonwealth, between State courts and federal courts created by the Parliament.” He added “that the consequences of the constitutional placement of State courts in the integrated system” include the following:
2. A State legislature cannot confer upon a court of a State a function which substantially impairs its institutional integrity and which is therefore incompatible with its role as a repository of federal jurisdiction. 3. State legislation impairs the institutional integrity of a court if it confers upon it a function which is repugnant to or incom patible with the exercise of the judicial power of the Com‑ monwealth. 4. The institutional integrity of a court requires both the reality and appearance of independence and impartiality. a. The principles underlying the majority judgments in Kable and fur- ther expounded in the decisions of this Court which have followed after Kable do not constitute a codification of the limits of State leg- islative power with respect to State courts. Each case in which the Kable doctrine is invoked will require consideration of the impugned legislation because [citation omitted]: ‘the critical notions of repugnancy and incompatibility are insus- ceptible of further definition in terms which necessarily dictate future outcomes’”.
He continued:
For legislators this may require a prudential approach to the enactment of laws directing courts on how judicial power is to be exercised, particu- larly in areas central to the judicial function such as the provision of pro- cedural fairness and the conduct of proceedings in open court. It may also require a prudential approach to the enactment of laws authorising the executive government or its authorities effectively to dictate the pro- cess or outcome of judicial proceedings.42
42 Ibid., at p. 169.
IV Restricting Parliamentary Intrusions into Fundamental Guarantees
It is well known that there is no equivalent of a comprehensive Bill of Rights at the federal level. Only Victoria and the Australian Capital Territory have a stat- utory form of a Bill of Rights. Sir Gerard Brennan said:
So long as the fundamental postulate of the Constitution continues to be the rule of law in the hands of the Courts, the individual can be protected against an unlawful exercise of power. However, the Courts are subject to the statutory directions of the Parliament. The consequence is that, if the statute is oppressive, injustice must follow. There can be some ameliora- tion of oppression by judicial interpretation of statutes and development of the common law so as to preserve human rights and fundamental free- doms. But under our present Constitution, it would be impermissible to strike down laws simply because they offend human rights and funda- mental freedoms. That may be the function of a court armed with a Bill of Rights.43
In Nationwide News Pty Ltd v. Wills44 Brennan J said:
A court will interpret laws of the Parliament in the light of a presumption that the Parliament does not intend to abrogate human rights and funda- mental freedoms but the court cannot deny the validity of an exercise of a legislative power expressly granted merely on the ground that the law abrogates human rights and fundamental freedoms or trenches upon political rights which, in the court’s opinion, should be preserved.45
The High Court in Union Steamship Co of Australia Ltd v. King46 observed that the constitutional formula “peace, order and good government”47 does not confer on a court a jurisdiction to strike down legislation as the words con- tained in the formula are not words of limitation. The High Court tantalisingly
43 G Brennan, “The Parliament, the Executive and the Courts: Roles and Immunities” (1997) Bond Law Review 136, 147 (footnotes omitted). 44 (1992) 177 CLR 1. 45 (1992) 177 CLR 1, 43; See G Brennan, “Human Rights, International Standards and the Protection of Minorities” in P Cane (ed), Centenary Essays for the High Court of Australia (Brisbane 2004), 33, 4. 46 (1988) 166 CLR 1. 47 Ibid., at p. 4.
V Parliamentary Attempts to Restrict Courts’ Jurisdiction
Relations between the courts and parliament become more difficult when a parliament desires to restrict the role of the courts in exercising the power of judicial review of administrative decisions by enacting “privative” or “ouster” clauses. It has been said that the Australian case law on privative clauses is “best understood as a site of power struggles between courts and legislatures.”55 Generally, a state of equilibrium has been reached in reconciling the exercise of sovereign power by the parliament and the maintenance of the rule of law by the courts. Judicial decisions highlight the accommodation through a restrictive construction of such clauses and an insistence that only clear words
48 Ibid., at p. 10. For a discussion on this case and Durham Holdings v New South Wales (2001) 205 CLR 399 and Broken Hill Proprietary v. Dagi [1996] 2 VR 117, 204 per Hayne JA (dissent- ing), see G Taylor, The Constitution of Victoria (Sydney 2006) 214–217. 49 (1992) 177 CLR 1. 50 (1992) 177 CLR 106. 51 L Zines, “A Judicially Created Bill of Rights?” (1994) 16 Sydney Law Review 166,180. 52 Commonwealth of Australia Constitution Act, s. 24. 53 Ibid., at s. 7. 54 See e.g. Stephens v. West Australian Newspapers (1994) 182 CLR 211. 55 P Cane and L McDonald, Principles of Administrative Law – Legal Regulation of Governance, 2nd ed., (Oxford 2012) p. 206.
56 (1945) 70 CLR 598. 57 Ibid., at p. 615. 58 A Mason, “The Foundations and the Limitations of Judicial Review” (2002) 31 Australian Institute of Administrative Law Forum 1, 20. See: E Campbell and M Groves, “Privative Clauses and the Australian Constitution” (2004) Oxford University Commonwealth Law Journal 51. 59 [2003] HCA 2, (2003) 211 CLR 476. 60 P Cane and L McDonald, Principles of Administrative Law – Legal Regulation of Governance, 2nd ed., (Oxford 2012) pp. 193. 61 [2003] HCA 2, (2003) 211 CLR 476, 514.
In any written constitution, where there are disputes over such matters, there must be an authoritative decision-maker. Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this Court. The Court must be obedient to its consti- tutional function. In the end, pursuant to s 75 of the Constitution, this limits the powers of the Parliament or of the Executive to avoid, or con- fine, judicial review.62
The approach of the High Court was viewed by Peter Cane and Leighton McDonald as amounting to a “political compromise.”63 They said:
On the one hand, the court upheld the constitutional validity of the clause. Striking the clause down as invalid may have elicited further attacks against the judiciary which may ultimately have adversely affected the High Court’s political legitimacy. On the other hand, the clause was restrictively interpreted, enabling the court to maintain its declared com- mitment to the rule of law.64
In Kirk v. Industrial Relations Commission (nsw),65 the High Court of Australia enunciated a degree of constraints on the enactment by State legislatures of privative clauses in relation to the exercise of supervisory jurisdiction by the State Supreme Courts. Kirk v. Industrial Relations Commission (nsw) dealt with Section 179(1) of the Industrial Relations Act 1996 (nsw) which pro- vides that a decision of the Industrial Court “is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal.”66 The High Court said: “Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.”67
62 Ibid., at [104]. See: Bodruddaza v. Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 in which the High Court construed a time-limit clause as being inconsistent with s 75(v) of the Commonwealth Constitution. 63 P Cane and L McDonald, Principles of Administrative Law – Legal Regulation of Governance, 2nd ed., (Oxford 2012), p. 206. 64 Ibid. 65 (2010) 239 CLR 531. 66 s. 179. 67 (2010) 239 CLR 531, 100.
In essence, the High Court held that “a privative clause in State legisla- tion cannot deprive the Supreme Court of the State of its supervisory jurisdic- tion over inferior courts, tribunals or administrative decision-makers, where the decision under challenge is affected by jurisdictional error,”68 leading to the observation: “Just as the Commonwealth Parliament cannot deny the High Court’s minimum supervisory jurisdiction, so State Parliaments cannot deny an equivalent jurisdiction to the Supreme Courts of the States.”69 In the context of privative clauses in the United Kingdom, Professor Christopher Forsyth said that “the courts have been forced to rebel against Parliament.”70 The relationship of the legislature and the judiciary is aptly put by him in the following way which has resonance in Australia:
Parliament is mostly concerned with short-term considerations and is strangely indifferent to the paradox of enacting law and then preventing the courts from enforcing it. The judges, with their eye on the long term and the rule of law, have made it their business to preserve a deeper constitutional logic, based on their repugnance in allowing any subordi- nate authority to obtain uncontrollable power. Needless to say, they have maintained throughout that they are correctly interpreting Parliament’s true intentions.71
VI Accountability of the Judiciary to the Parliament
While the courts exercise an oversight role regarding the legislation enacted by the parliaments, they are subject to a degree of accountability in the parlia- mentary forum, either in terms of individual capacity or as an institution. That accountability can take the form of annual reports of the operations of the courts, comments and observations by ministers and other parliamentarians during question time. On occasions, critical comments have been made by parliamentarians and these in turn give rise to controversy as to the need to
68 R Sackville, “The constitutionalisation of State administrative law” (2012) 19/3 Australian Journal of Administrative Law 127,128. 69 Ibid. 70 H W R Wade & C FR Forsyth, Administrative law, 10th ed., by C Forsyth, (Oxford 2009) p. 616. 71 Ibid., at 617.
[T]he Houses of parliament have the power and responsibility of decid- ing whether any conduct of a judge which is the subject of a motion to address amounts to misbehaviour. That does not however make them masters of the law: it means rather that they must conscientiously accept the legal test of what is misbehaviour and decide, as a matter of fact and degree, whether behaviour proved against the judge meets the criteria embodied in the test. It is no part of this ruling that the Houses of Parliament may vary that test from case to case.75
A narrow construction of “misbehaviour” would indubitably constrain the scope for removing a judge. A broad view is one which is preferred by the Parliamentary Commission of Inquiry. Sir George Lush expressed the broad view as follows:
If their conduct, even in matters remote from their work, is such that it would be judged by the standards of the time to throw doubt on their own suitability to continue in office, or to undermine their authority as
72 E Campbell and M Groves, “Attacks on Judges under Parliamentary Privilege: a Sorry Australian Episode” [2002] Public Law 626–639. 73 HP Lee and E Campbell, The Australian Judiciary, 2nd ed., (Cambridge 2012), pp. 117–120. 74 The other members were Sir Richard Blackburn and Sir George Lush. 75 “Parliamentary Commission of Inquiry Re The Honourable Mr Justice Murphy” (1986) Australian Bar Review 203; Lee and E Campbell The Australian Judiciary 2nd ed., Cambridge 2012), pp, 117–120. “Parliamentary Commission of Inquiry Re The Honourable Mr Justice Murphy” (1986) Australian Bar Review 203, 249.
judges or the standing of their courts, it may be appropriate to remove them.76
In 1989 the Queensland Parliament voted to remove Justice Angelo Vasta from the Supreme Court of Queensland.77 The Standing Orders of the Australian Senate and House of Representatives expressly provide that no member of the House may use “offensive words” against any judicial officer and that “all imputations of improper motives and all personal reflections” on such officers should be considered “highly disor- derly.”78 This rule “is based on the need for comity and mutual respect between the legislature and the judiciary, and the requirement that judicial officers be protected from remarks which might needlessly undermine respect for the judiciary.”79 A “sorry episode”80 occurred in 2002 when a senator (Bill Heffernan), under the cover of parliamentary privilege, launched a baseless attack on a highly respected Justice of the High Court of Australia (Justice Michael Kirby), who is a professed homosexual. The senator strategically left the naming of the judge till the end of his speech in the house to avoid being stopped in his tracks for violating the Standing Order. In the end it was established that the allegations were unfounded and the document obtained by and relied on by the senator turned out to be fabricated. The controversy led to the standing down of the senator from his position of parliamentary secretary to the Cabinet and his eventual resignation from the position.81 While not all Houses of Australian legislatures have adopted Standing Orders of this kind, their Standing Orders commonly include one which declares that where the Standing Orders do not cover a particular matter, the practices of the House of Commons of the Parliament of the United Kingdom are to be applied.82 In that House, it is accepted that, in debate, reflections must not be cast upon the conduct of judges, or their character or motives, or charges of a personal nature made against them. However, this general rule does not apply where a substantive motion is moved, for example, to appoint
76 Ibid., at p. 210. 77 HP Lee and E Campbell, The Australian Judiciary, 2nd ed., (Cambridge 2012), pp. 120–122. 78 Senate SO 193(3); HR SOs 75 and 78. 79 AR Browning (ed), House of Representatives Practice, 2nd ed. (Canberra 1989) p. 231. 80 This episode is discussed in E Campbell and M Groves, “Attacks on Judges under Parliamentary Privilege: A Sorry Episode” (2002) Public Law, 626. 81 Ibid., at 629. 82 See, eg, Standing Orders and Rules of the Legislative Assembly of Victoria, r 50.
VII Parliamentary Restructuring of Courts
In the final analysis, a parliament desirous of controlling a court which is per- ceived by it of exceeding its remit may legislate to abolish such a court. Fortunately, this has never occurred in Australia. Recently, the Commonwealth Parliament legislated to rename the Federal Magistrates Court as the Federal
83 Erskine May’s Treatise on the Laws, Privileges, Proceedings and Usage of Parliament, 21st ed. (London 1989) 379–380. 84 E Campbell, “Judges at the Bar of Parliament” (1999) 18 Australian Bar Review 131. 85 Senate Select committee on Allegations Concerning a Judge, report to the Senate, October 1984, p. 44. 86 Courts Legislation Amendment (Judicial Complaints) Act 2012 (Cth); Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth).
Circuit Court of Australia.87 As this was purely a name change it did not evoke any controversy. However, a government on occasions, may feel the need to restructure the court system with a view to improving efficiency in the system or providing another tier of appeal. However, a restriction is placed on a state legislature regarding the Supreme Court of the state. In Kable, McHugh J said that because Section 73 of the Commonwealth Constitution provides for a right of appeal from the Supreme Court of each state to the High Court of Australia the continued existence of the State Supreme Court is implied. He added:
It necessarily follows, therefore, that the Constitution has withdrawn from each State the power to abolish its Supreme Courts or to leave its people without the protection of a judicial system. That does not mean that a State cannot abolish or amend the constitutions of its existing courts. Leaving aside the special position of the Supreme Court of the States, the States can abolish or amend the structure of existing courts and create new ones. However, the Constitution requires a judicial sys- tem in and a Supreme Court for each State and, if there is a system of State courts in addition to the Supreme Court, the Supreme Court must be at the apex of the system.88
Controversy may arise when a government seeks to abolish an existing tier of courts or independent tribunals and their replacement by the creation of new courts or tribunals. On one such occasion, the practice was denounced as representing a “shocking erosion of the principle of independence of judicial and like decision-makers.”89 The New South Wales government had sought to reorganize the magistracy in the state by enacting the Local Courts Act 1982 (nsw). However, five of the serving magistrates who applied were not appointed to the new Local Courts based on the policy that serving magistrates who applied would be appointed to the new Local Courts unless they were
87 Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth). In the state of Victoria, the state legislature enacted legislation to restrict the appointment of reserve judges to persons who previously have held judicial appointments, deviating from a past practice of appointing them from a wider pool which included barristers, solici- tors and legal academics: Courts Legislation Amendment (Reserve Judicial Officers) Act 2013 (Vic). 88 (1996) 189 CLR 51, 111. 89 The Ronald Wilson Lecture 1994, published as “Abolition of Courts and Non- reappointment of Judicial Officers” (1995) 12 Australian Bar Review 181, 183.
90 Only one magistrate did not apply. 91 Attorney-General (NSW) v. Quin (1990) 170 CLR 1 (Mason CJ, Brennan and Dawson JJ; Deane and Toohey JJ dissenting). 92 (1990) 170 CLR 1, 19. 93 Ibid., at p. 24. Justice Kirby has described the majority decision of the High Court as a “most unfortunate decision”: M Kirby, “Abolition of Courts and Non-reappointment of Judicial Officers” (1995) 12 Australian Bar Review 181, 193. 94 See Constitution Act 1902 (NSW) s. 56 as affected by the Constitution (Amendment) Act 1992 (No 106).
Chief Justice Doyle of the Supreme Court of South Australia pointed out that the replacement or restructuring of a court “could be a convenient way to achieve indirectly what could not be achieved directly.”95 He added that the convention is “that the existing judges of the court that is abolished or restruc- tured must be appointed to a court of equivalent status or to the new replace- ment court. Failing that, they should continue to hold office in the former court, even if the work of that court has come to an end.”96
VIII Conclusion
The courts in Australia seek to ensure that the parliaments operate within the parameters of the powers provided by the constitutional framework at both federal and state level. It does this through exercising the power of judicial review, which extends to the invalidation of legislation of the federal and state legislatures. Decisions of the courts invalidating legislation of a parliament are, despite the occasional murmurings of disquiet about “judicial activism,” accepted and obeyed. Because Australia operates under a written constitution which constrains the powers of the other arms of government, the courts gen- erally display “qualified judicial deference to the will and the judgment of the legislature.”97 Sir Anthony Mason remarked:
In determining whether legislation is within constitutional power or con- sistent with constitutional prohibition and guarantees, courts allow a margin of appreciation for legislative judgment where appropriate.98
Overall, the relationship of the judiciary and the parliamentary institutions in Australia can be described as a healthy relationship characterized by mutual respect.
95 “Judicial Independence” (1997–1998) 16 Australian Bar Review 212, 215. 96 Ibid. 97 A Mason, “Courts, Constitutions and Fundamental Rights” in G Lindell (ed), The Mason Papers (Sydney 2007), p. 226. 98 Ibid.
∵
Chapter SEVENTEEN Relations between the Court and the Parties in the Managerial Age
Neil Andrews*
I Introduction
This article is dedicated to Marcel Storme1 and to Shimon Shetreet.2 Marcel Storme has consistently advocated, with great eloquence, the need for the
* Professor of Civil Justice and Private Law, Faculty of Law, University of Cambridge; Fellow of Clare College, Cambridge; Bencher of Middle Temple, 2007; Member of the American Law Institute; Vice-President, International Association of Procedural Law. 1 Former, and heroically long-standing, President of the International Association of Procedural Law; and Emeritus Professor, Gent, Belgium; for example, M. Storme (ed.), Approximation of Judiciary Law in the European Union (Gent 1994); M. Storme (ed.), Procedural Laws in Europe: Towards Harmonization, (Maklu, Antwerpen/Apeldoorn 2003); M. Storme and B. Hess (eds.), Discretionary Power of the Judge: Limits and Control (Kluwer, Dordrecht, 2003). 2 Shimon Shetreet (Greenblatt chair of public and international law, Hebrew University of Jerusalem, Israel); an expert of great eminence and a pioneering scholar in the field of judi- cial independence and ethics. Awarded the 2010 International Jurists Award for maintaining the highest standards of legal education. Has been in recent years been Herbert Smith Visiting Professor at University of Cambridge, U.K. and Senior Academic Visitor at Clare College, Cambridge; and has been visiting professor of numerous U.S.A. law schools, and elsewhere. Shetreet was called to the Israeli Bar, 1969, and he has appeared before the Supreme Court of Israel in landmark cases. As a Minister he held high public offices: 1988 to 1996, and was a Member of the Knesset, the Israeli Parliament. Main works: Judges on Trial A Study of the Appointment and the Accountability of the English Judiciary (1976) (relied upon by the House of Lords in the Pinochet Case in January 1999; this and other works have also been relied upon as well in numerous highest court cases in Canada, Australia, New Zealand and India); Judicial Independence: The Contemporary Debate (1985); The Role of Courts in Society (1988); National Security and Free Speech (1991); Justice in Israel (1994); Women in Law (1998); The Good Land Between Power and Religion (1998 Hebrew); Law and Social Pluralism (2002); On Adjudication (2004) (Hebrew); S. Shetreet and C. Forsyth (eds.), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges (Martinus Nijhoff, Leiden and Boston, 2012); Uniform Civil Code: The Challenge of Implementing Uniform Civil Code for India, to be published by Oxford University Press (with Hiram Chodosh); Judges on Trial (2nd edn., Cambridge Univeristy Press, 2013), with Dr. Sophie Turenne; Shimon Shetreet, ‘The Normative Cycle of Shaping Judicial Independence in Domestic and International Law…’
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_018
II Main Themes of this Paper
These are:
I. civil justice is now expected to be a more civilised form of contest; litigants and their lawyers are expected to avoid opportunistic and combative tactics; instead they must approach civil proceedings in a co-operative manner; II. consistent with this, legal representatives are officers of the court; and so their overriding responsibility is to the interests of justice rather than their client; III. the court is no longer required simply to adjudicate at trial; the modern court is required to manage cases and to promote a range of litigious aims, including speedy and cost-effective resolution of disputes, and the promotion of opportunities for extra-curial settlement, especially by out- of-court mediation; IV. like cinema-going, a traditional public event, trial is now in drastic decline; like the giant panda greater crested newt, trial is now an endangered species; V. expansion of mediation and arbitration has overlapped with the failure of the court system to control costs; but mediated settlements and confidential arbitral awards are beyond public scrutiny.
III Players and Officials
Who are the players? For the most part the parties will be legally represented. But litigants-in-person are quite common. They pose problems for the court
(2009) 10 Chicago J. of Int. L. 275–332. Shetreet is responsible for the (continuing) project on judicial independence, Mt. Scopus International Standards of Judicial independence. 3 http://law.huji.ac.il/upload/InternationalStandardsofJudicialInd2008.doc.
4 Jury trial is confined to serious criminal cases (for example, murder, rape, armed robbery) and civil actions for defamation or misconduct by the police (the torts of defamation, mali- cious prosecution, and false imprisonment). 5 Rule 25: accessible at: http://www.unidroit.org/ensh/principles/civilprocedure/main.htm. Also published as American Law Institute/unidroit’s Principles of Transnational Civil Procedure (Cambridge University Press, 2006), 137 et seq.; the members of the drafting group were: Neil Andrews, University of Cambridge, U.K.; Professor Frédérique Ferrand, Lyon, France; Professor Pierre Lalive, formerly University of Geneva, sometime Goodhart Professor of Legal Science, Cambridge, in practice as an international commercial arbitrator, Switzerland; Professor Masanori Kawano, Nagoya University, Japan; Mme Justice Aida Kemelmajer de Carlucci, Supreme Court, Mendoza, Argentina; Professor Geoffrey Hazard Jr., now Hastings College of the Law, San Francisco, U.S.A.; Professor Ronald Nhlapo, formerly of
IV Lawyers as Officers of the Court
Barristers and solicitors owe duties not just to the client but to the court and to the interests of justice. Their overriding duty is to the wider interests of justice. Lawyers must not allow themselves to be sucked down into a maelstrom by an over-commitment to their client. Thus all advocates (barristers or solicitors) owe: ‘a duty to the court to act with independence in the interests of justice’, as well as a duty to comply with prescribed professional rules, and ‘[both sets of duties] shall override any obligation which the person may have…if it is inconsis- tent with them’.6 Earlier the Court of Appeal had said: ‘the balance between the advocate’s duty to the client and the advocate’s duty to the court must reflect evolutionary change within the civil justice system. If evolutionary shifts are necessary to match civil justice reforms they should…be towards strengthening the duty to the court’.7 However, the modern system of remuneration of lawyers tolerates parties’ legal representatives having a financial interest in the case’s outcome. The Courts and Legal Services Act 1990 permitted lawyers to agree with litigants ‘conditional fee agreements’ (‘CFAs’), and this paved the way for implementa- tion in 1995 in the case of personal injury litigation, and in 1998 expansion to most civil litigation. Recent legislation, the Legal Aid, Sentencing and Punishment of Offenders Act 2012, introduces into ordinary civil proceedings the USA-style contingency fee arrangements. Restraint and discipline are required in pleading a case. Claim forms and other species of a ‘statement of case’ (whether by a claimant or defendant) must be verified by a statement of truth.8 A dishonest statement exposes a person to contempt proceedings.9 If a party’s lawyer signs the statement of case, he might be liable for contempt if the client has authorised the lawyer to make a false statement and if the lawyer has made a statement in the truth of which he has no honest belief.10
the Law Commission, South Africa; Professor Dr. iur. Rolf Stürner, University of Freiburg, Germany, and Judge at the Court of Appeals of the German State Baden-Württemberg, Karlsruhe; the assistant to these discussions was Professor Antonio Gidi, now University of Houston Law Center. 6 s. 42, Access to Justice Act 1999. 7 Vernon v. Bosley (No. 2) [1999] QB. 18, C.A., per Thorpe L.J. 8 C.P.R. 22.1(1)(a): on the question of inconsistent statements of case by one party, see Clarke v. Marlborough Fine Art (London) Ltd. [2002] 1 W.L.R. 1731, Patten J. 9 C.P.R. 32.14. 10 P.D. (22) 3.1, 3.7, 3.8; C.P.R. 32.14.
Allegations of dishonesty should be pleaded only if there is clear evidence. The Bar Council’s Code of Conduct of the Bar of England and Wales states:11 ‘A practising barrister…must not draft any…pleading…containing…any allega- tion of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud…’. In Medcalf v. Mardell (2002), Lord Bingham said that this provision estab- lishes: ‘an important and salutary principle… Counsel is bound to exercise an objective professional judgement whether it is…proper to lend his name to the allegation… [A]t the preparatory stage the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel to conclude that seri- ous allegations could properly be based upon it’.12 Lawyers are also required to research the law. They must comb the sources for relevant precedent decisions and statutory rules. They should not get into the habit of filing away the law reports without reading them. They must actively seek out the latest law. In Copeland v. Smith (2000) Brooke LJ reminded lawyers that it is the duty of an advocate to draw relevant authority to the judge’s attention even if it the relevant authority is adverse to his client’s case.13 In this case, neither counsel had been aware of a particular decision because both had failed to research a point exhaustively. Court decisions must be adequately reasoned. But counsel must offer sup- port to the court in the rendering of accurate judgments. In Re A (Children) (2011), Munby LJ said:14 ‘it is the responsibility of the advocate, whether or not invited to do so by the judge, to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge’s reasoning process’. More generally, the CPR (1998) was intended to change the culture of English court-based litigation. One of the aims of the Woolf reforms was that English civil procedure should abandon an antagonistic style and embrace co-operation between litigants and their lawyers. It was a bold, some might contend even a preposterous, idea that the parties’ lawyers should co-operate. However, after the Woolf changes were introduced in 1999, former Senior
11 (8th edn., 2004), para. 704(c)); on-line: see www.barcouncil.org.uk. 12 Medcalf v. Mardell [2003] 1 A.C. 120, H.L. at [22], per Lord Bingham. 13 Copeland v. Smith (Practice Note) [2000] 1 W.L.R. 1371, C.A. 14 [2011] EWCA Civ 1205, [2012] 1 W.L.R. 595; [2012] C.P. Rep. 6; [2012] 1 F.L.R. 134; [2012] 1 F.C.R. 379; [2012] Fam. Law 8, at [16].
Master Robert Turner saw evidence of such co-operation. But not everyone was prepared to co-operate. It was difficult to change the mind-set of some senior advocates. Although lawyers have adapted to the judicial expectation that they should no longer pursue their clients’ interests in a relentless and aggressive manner, practitioners report15 that the adversarial nature of the underlying contest remains a daily reality. It is true that correspondence between rival parties, which might be seen by the court in due course, is no longer couched in the aggressive terms which characterised pre-CPR dealings between adversaries. But the softer and more conciliatory tone of written exchanges under the CPR regime masks an intensely fought battle. The CPR system was applied top-down. Lord Woolf’s ‘CPR lieutenants’, for example, Brooke LJ, May LJ, and Lord Scott of Foscote, were very influential. This was a group of judges who enthusiastically promoted the CPR system’s new values. They ensured that those values percolated throughout the court system. Under their guidance early case law applications of the new code reflected the CPR’s core elements of efficiency, procedural discipline, and cost-effectiveness. Lord Neuberger MR (as he then was), in a lecture (2012),16 suggested that a sea-change has occurred since 1998:
‘The judiciary, and lawyers, have adapted pretty well to active case manage- ment over the last decade… It is something now with which we are all familiar; and more importantly we now have a generation of solicitors and barristers who know nothing other than a system where there is active case management. There are also many judges who have been appointed since 1999, who know no different approach to carrying out their judicial role… What was once novel is for many not just the norm but the only one they have known. It is unsurprising therefore that we have all got better at it…’
V Constraints upon the Courts and upon Arbitral Tribunals
Judicial and arbitral decision-makers are required to render a judgment or award, following representations from the parties. Six fundamental
15 For example, London litigation partner, seminar, Cambridge March 2010. 16 Lecture entitled ‘Docketing: Completing Case Management’s Unfinished Revolution’ (2012), at [11]: http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mor -speech-solicitors-cost-conference-lecture-feb2012.pdf. at [14].
ADVICE AND ACCESS: EMPOWERING THE PARTIES
(1) Rights of Legal Consultation and Representation (2) Access to Court and to Justice (3) Protection against Bad or Spurious Claims and Defences
CONDITIONS FOR SOUND DECISION-MAKING
(4) Judicial Independence (5) Judicial Impartiality (6) Publicity and Open Justice (7) Judicial Duty to Give Reasons
AN EFFICIENT PROCESS
(8) Judicial Control of the Civil Process to Ensure Focus and Proportionality (9) Avoidance of Undue Delay
A FAIR PROCESS
(10) Judicial Duty to Avoid Surprise: The Principle of Due Notice (11) Procedural Equality (equal respect for the parties) (12) Equal Access to Information, including Disclosure of Information between Parties (13) Fair Play between the Parties (14) Accuracy of Decision-making
UPHOLDING JUDGMENT
(15) Finality (16) Effectiveness
The only principle which is not court/tribunal-centric is the principle of fair play between the parties. But in practice this principle is likely to require intense support by the courts if it is not to become an empty procedural piety.
VI The Managerial and Multi-Tasking Court
Courts now adjudicate, hear appeals, make decisions regarding costs, make decisions concerning enforcement, and in much litigation they are expected to manage the progress of the case. Before 1999, too many cases had been left to drift without official direction. These disputes had become the (lucrative) play-thing of rival teams of lawyers. If one goes back to the conduct of English civil proceedings in the 1960s, 70s and 80s, it had been common under that pre-cpr system for the action to com- mence just before expiry of the limitation period and to delay service of the ‘writ’ (now known as a ‘claim form’) for another twelve months. There would be no time-tabling. The first intervention of a judge would be at trial. Under the pre-cpr system, before the system of witness statements had been intro- duced, the trial judge would come to the case with a mind like a blank sheet. There was very little to read in advance. It was perceived that the judicial task was to sit at trial, listen, and give judgment. Under the 1998 procedural code, the Civil Procedure Rules (‘CPR (1998)’), also known as the ‘Woolf Reforms’,17 English judges have been granted wide- ranging powers to manage development of civil cases, especially in large actions. This was a fundamental change because, before 1998, English proce- dure had generally avoided pre-trial judicial management (although, even before the Woolf reforms, case management had emerged as a convenient and necessary technique in, notably, the Commercial Court, part of the High Court).18
17 Lord Woolf’s two reports are: Access to Justice: Interim Report (1995) and Access to Justice: Final Report (1996) both available on-line at: http://www.dca.gov.uk/civil/reportfr .htm. 18 On the C.P.R. system from the perspective of the traditional principle of party control, N. Andrews, ‘A New Civil Procedural Code for England: Party-Control ‘Going, Going,
English courts possess extensive ‘case management’ powers. In his reports of 1995–9619 Lord Woolf adopted this technique as the mainstay for actions on the ‘multi-track’, thus including all High Court litigation (this track covering more expensive county court litigation and all High Court actions). Case man- agement has three main functions: to encourage the parties to pursue media- tion,20 where this is practicable; secondly, to prevent the case from progressing too slowly and inefficiently; finally, to ensure that judicial resources are allo- cated proportionately, as required by ‘the Overriding Objective’ in cpr Part 1. This requires the court and parties to consider the competing demands of other litigants who wish to gain access to judges, the court’s ‘scarce resources’. In his 2011 lecture, ‘Achieving a Culture Change in Case Management’21 Sir Rupert Jackson noted that efficient case management requires: (i) judicial experience; (ii) adequate pre-hearing reading by judges and proper prepara- tion by lawyers; (iii) the same judge should deal with each successive hearing (see also discussion below of docketing); (iv) there should be consistency between courts; (v) ‘robust but reasonably fair’ case management orders should be upheld by the Court of Appeal.22 In the same lecture23 Jackson noted the criticism that case management, if not applied efficiently, might itself become a drain on the system and increase the overall cost of litigation.24 He suggested that the legal system must steer a middle course between Scylla and Charybdis: ‘in this context Scylla is officious intermeddling by the courts, which gobbles up costs to no useful purpose’ and ‘Charybdis is laissez-faire litigation, which leaves the parties to swirl around in uncontrolled litigation—with all the problems which Lord Woolf identified in his Reports.’
Gone” (2000) 19C.J.Q. 19–38; N. Andrews, English Civil Procedure (Oxford University Press, 2003), 13.12 to 13.41; 14.04 to 14.45; 15.65 to 15.72. 19 Lord Woolf’s two reports are: Access to Justice: Interim Report (1995), and Access to Justice: Final Report (1996): for comment, A Zuckerman and R Cranston, The Reform of Civil Procedure: Essays on ‘Access to Justice’ (Oxford University Press, 1995); R. Cranston, How Law Works (Oxford University Press, 2006), ch. 5. 20 Generally, K. Mackie, D. Miles, W. Marsh, A. Allen, The ADR Practice Guide (2007), esp. ch.’s 5, 6, 7. 21 http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lj-jackson-speech -achieving-culture-change-case-management.pdf. 22 Ibid., at 4.1. 23 http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lj-jackson-speech -achieving-culture-change-case-management.pdf. 24 Ibid., at 1.8, noting M. Legg, Case Management and Complex Civil Litigation (Federation Press, Sydney, 2011).
VII Docketing: Seamless Judicial Assistance, from Commencement to Conclusion
Lord Neuberger, in his 2012 lecture on this topic,25 proposed intensification of case management in complex multi-track cases. ‘Docketing’ would involve individual judges taking charge of the case, from inception to trial, including the conduct of the trial process. He said:26 ‘as a revolution in our approach to the conduct of civil litigation, introduction of case management is one which is unfinished. It is the introduction of a form of docketing or, in the terms of the Jackson Report, of ‘measures…taken to promote the assignment of cases to desig- nated judges with relevant expertise’, which will help to complete that revolution’.
Lord Neuberger also referred to the encouraging results achieved in a Leeds pilot scheme,27 experiences within the Technology and Con struction Court,28 and to rule changes in the Commercial Court,29 as well as experience in the USA.30
Lord Neuberger MR (as he then was) identified four main benefits of docketing:
(1) lawyers’ determination to adhere to deadlines will be reinforced by the fact that judges are known to be ‘on top’ of the case at all stages;31 (2) less judicial time will be spent ‘getting up to speed’ because the same judge will have acquired familiarity with the minutiae of the case;32 (3) case management decisions will be better informed; and ‘formulaic’ managerial decisions will decline;33 this is connected to the observation that complex cases require better tailored case management;34
25 ‘Docketing: Completing Case management’s Unfinished Revolution’ (2012): http://www .judiciary.gov.uk/Resources/JCO/Documents/Speeches/mor-speech-solicitors-cost -conference-lecture-feb2012.pdf. 26 Ibid., at [15] (referring to Sir Rupert Jackson, Review of Civil Litigation Costs: Final Report (December 2009), vol. II, at 469). 27 Ibid., at [26], citing a 2012 study. 28 Ibid., at [27], noting Sir Rupert Jackson’s experience in that court between 2004 and 2007. 29 Admiralty and Commercial Courts Guide (London, 2011), section D4, at 25–26. 30 Ibid., at [17], but especially at [20], citing U.S. materials. 31 Ibid., at [15]. 32 Ibid., at [22]. 33 Ibid. 34 Ibid.
(4) the case will be more likely to be handled in a consistent way, rather than being subject to different judicial interventions, in a spasmodic and hap- hazard manner.35
VIII Surviving Factes of Party Autonomy Under the English System of Judicial Management
The cpr (1998) case management revolution has not abrogated fundamental aspects of party-autonomy. English judges must respect various procedural rights concerning the definition and substantiation of the case, including enforcement of judgments or appeals against decisions. First, the scope of the litigation is determined by the parties pleadings rather than dictated by the court. Secondly, the parties formulate legal submis- sions concerning the claim or defence, and to present statutory or case law authority to support those submissions (this contrasts with the more active involvement of some civil law courts). Thirdly, the parties select relevant witness and documentary evidence; under the English system, witness state- ments and expert reports are prepared in consultation with the parties’ law- yers but without judicial supervision; if the court gives permission for expert evidence to be used in the case, the parties are free to select the relevant party- appointed expert whose opinion will be used at trial;36 and at trial, factual witnesses and experts are examined and cross-examined by the parties (normally by their advocates) in the presence of a judge whose task is to listen. Indeed the trial judge must only ask occasional questions, for the purpose of clarification. Thus the Court of Appeal in the Southwark London Borough Council case (2006) affirmed that if the judge were to intervene excessively during presentation of oral evidence, he would ‘arrogate to himself a quasi- inquisitorial role’, something which is ‘entirely at odds with the adversarial sys- tem’.37 Fourthly, the decision concerning how a favourable judgment will be enforced is left to the successful claimant. The court does not enforce its own judgments.38 Fifthly, the court does not take the initiative in taking judgments on appeal. However, in England a dissatisfied first instance party must obtain
35 Ibid., at [24]. 36 Under the C.P.R. system the main rule is that no expert evidence can be presented in a case unless the court has granted permission: C.P.R. 35.4(1) to (3). 37 Southwark London Borough Council v. Kofi-Adu [2006] EWCA Civ 281, [2006] HLR 33, at [148]. 38 Andrews on Civil Processes (Intersentia, Cambridge, 2013), 17.01.
IX Procedural Discipline and Sanctions
Adrian Zuckerman has contended that the courts have not been consistent and tough enough in exercising their powers of case management.40 Similarly, in his 22 November 2011 lecture, ‘Achieving a Culture Change in Case Management’,41 Sir Rupert Jackson conceded that there had been some undue clemency and that the provision concerning ‘relief from sanctions’ (cpr 3.9) needed to be simplified and to place more emphasis upon the need for procedural compliance.42 He also attractively suggested that courts should become more active in ‘following up’ their directions and orders by seeking confirmation from parties that these measures are being respected and that everything remains ‘on track’.43 However, in Summers v. Fairclough Homes Ltd. (2012),44 Lord Clarke (in a passage which hardly endorses a Stalinist procedural approach of zero- tolerance) observed:45
‘the court has a wide discretion as to how to exercise its case manage- ment powers. These include the power to strike out the whole or any part
39 C.P.R. 52.3(1): except decisions affecting a person’s liberty; Andrews on Civil Processes (Intersentia, Cambridge, 2013), 15.31 et seq. 40 A. Zuckerman, ‘Litigation Management under the C.P.R.: a Poorly-used Management Infrastructure…’, in D. Dwyer (ed.), The Civil Procedure Rules: Ten Years On (Oxford University Press, 2010), 89–108; A. Zuckerman, in M. Andenas, N. Andrews, R. Nazzini (eds.), The Future of Transnational Commercial Litigation: English Responses to the American Law Institute/Unidroit Draft Principles and Rules of Transnational Civil Procedure (British Institute of Comparative and International Law, London; re-printed 2006), ch. 12; and in N. Trocker and V. Varano (eds.), The Reforms of Civil Procedure in Comparative Perspective (Torino, 2005), 143 et seq., and Zuckerman on Civil Procedure (2nd edn., 2006), ch. 10, especially at 10.139 and 10.164 et seq.; D. Piggott, ‘Relief from Sanctions…’ (2005) C.J.Q. 103–129. 41 http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lj-jackson-speech -achieving-culture-change-case-management.pdf. 42 Ibid., at 3.1 et seq. 43 Ibid., at 3.3. 44 [2012] UKSC 26, [2012] 1 W.L.R. 2004. 45 Ibid., at [49].
of a statement of case at whatever stage it is made… However, the cases stress the flexibility of the CPR…[for example] Aktas v. Adepta [2011] QB 894, at [92], where Rix LJ said: “…one of the great virtues of the CPR is that, by providing more flexible remedies for breaches of rules as well as a stricter regulatory environment, the courts are given the powers and the opportunities to make the sanction fit the breach…..”’
This view also chimes with the (non-binding) American Law Institute/ UNIDROIT’s ‘Principles of Transnational Civil Procedure’, which recommend that:46 ‘Sanctions should be reasonable and proportionate to the seriousness of the matter involved and the harm caused and reflect the extent of participation and the degree to which the conduct was deliberate’.
X Decline of the Trial System
English civil judges have traditionally devoted time to hearing trials or appeals. But both forms of activity are now endangered. Instead the great bulk of court litigation involves avoidance of trial and appeal. The judges have become drawn into facilitating and managing trial avoidance. Most English civil litiga- tion occurs without the parties enjoying their ‘day in court’, the ‘plenary ses- sion’ known within the Common Law tradition as ‘trial’ (and the vanishing trial has been noted in the USA).47
46 Principle 17.2; accessible at: http://www.unidroit.org/english/principles/civilprocedure/ main.htm. Also published as American Law Institute/Unidroit’S Principles of Transnational Civil Procedure (Cambridge University Press, 2006), 38. 47 S. Burbank, ‘Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Towards Bethlehem or Gomorrah?’ (2004) 1 Jo. of Emprirical Legal Studies 591; M. Galanter, ‘The Vanishing Trial…in Federal and State Courts’ (2004) 1 J. Empirical Legal Studies 451; J. Langbein, ‘The Disappearance of Civil Trial in the United States’ (2012) Yale LJ 524; A. Miller, ‘The Pre-trial Rush to Judgment: Are the “Litigation Explosion”, “Liability Crisis”, and Efficiency Cliches Eroding our Day in Court and Jury Commitments?’ (2003) 78 N.Y.U.L.Rev. 982; J. Resnik, ‘For Owen M. Fiss: Some Reflections on the Triumph and Death of Adjudication’ (2003) 58 Miami U.L.Rev. 173; J. Resnik, ‘Whither and Whether Adjudication’ (2006) 86 Boston U.L.Rev. 1101, 1123 et seq.; J. Resnik, ‘Uncovering, Discovering and Disclosing How the Public Dimensions of Court-Based Processes are at Risk’ (2006) 81 Chicago-Kent L.R. 521 and J. Resnik and D.E. Curtis, ‘From “Rites” to “Rights” of Audience: The Utilities and Contingencies of the Public’s Role in Court Business’ in A. Masson and K. O’Connor (eds.), Representation of Justice (Brussels, 2007).
In fact not only do many actions end without trial, but most disputants do not bring or become embroiled in formal civil proceedings. Of those who do become parties to court proceedings, in most the case is either settled, or a form of summary judgment or dismissal terminates the case before a final hearing. When these vast numbers of non-litigated disputes and litigated but untried cases are subtracted from the pile, all that remains is a tiny trickle of cases which reach trial. Only in this small percentage of cases will a trial judge have the opportunity to pronounce final judgment on the merits, after hearing witness testimony. Some might find this surprising. Has not the central character of common law civil procedure, the trial, disappeared? After all, would it not be a theatri- cal non-event to attend a performance of Shakespeare’s ‘Hamlet’, in which the troubled Prince had been excised from the entire script (unless the play were Tom Stoppard’s ‘Rosencrantz and Guildenstern Are Dead’,48 a satel- lite play). Nevertheless, the bed-rock assumptions of the modern civil system of jus- tice are: avoidance of litigation; encouragement of pre-trial settlement; trial has become an endangered species.
XI Expansion of Arbitration and Mediation
Before the 1990s, mediation was regarded in England in ordinary civil disputes as an exotic and even an eccentric practice. It was promoted by London judges in the late 1990s, following a visit from an American mediator. Influenced by this, Senior Master Turner went on a mediation course in London. He then exhorted his Masters to do the same. Now it is necessary, where appropriate, for judges to remind litigants that they should consider mediation. The rise of mediation and consolidation of commercial arbitration have occurred despite a sustained determination to control court proceedings and to render them more efficient. In England the four main manifestations of the struggle to control court liti- gation and render it more efficient are: (i) an institutional bias against trial (avoidance of trial and promotion of settlement and mediation); (ii) greater use of pre-trial case management by judges; (iii) expanding the ‘no-win-no-fee’ system of remunerating litigation lawyers, and curbing public civil legal aid
48 ‘Rosencrantz and Guildenstern Are Dead’, ‘an absurdist, existentialist tragicomedy’, by Tom Stoppard, was first staged in 1966, at the Edinburgh Festival.
(although critics might say that the no-win-no-fee system has excited more bad claims than the legal aid system and that the new filter has been less effec- tive); and (iv) restrictions on appeals. It is perhaps ironic that despite intense activity aimed at reforming, improv- ing and refining civil proceedings, demand for alternative sources of civil jus- tice has not abated but in fact grown. Modern court systems (sources of ‘public justice’) are unlikely to improve to the point that mediation and arbitration (sources of ‘private justice’) cease to be attractive alternative forms of justice. Expansion of mediation is not confined to England. The European Directive on Mediation (2008),49 implemented in England,50 reflects the pan-European and indeed global rise of this technique. Furthermore, there is an official bias against court proceedings. The pre- action protocols state:51 ‘Starting proceedings should usually be a step of last resort, and proceedings should not normally be started when a settlement is still actively being explored. Although ADR is not compulsory, the parties should con- sider whether some form of ADR procedure might enable them to settle the matter without starting proceedings. The court may require evidence that the parties considered some form of ADR’.52 A leading reason for the rise of commercial mediation is the wish to escape the crippling expense of formal court litigation, or of complex arbitration. Both forms of dispute-resolution, court litigation and arbitration, remain expensive and problematic means of resolving many types of civil dispute. Costs and expense are in the forefront of most people’s minds whenever litiga- tion becomes even a remote prospect. Certainly in England, the rise of media- tion, notably in high value disputes, is largely attributable to the sheer expense of traditional court litigation. In a lecture (2012) Lord Neuberger concluded:53 ‘Over the last ten years, civil litigation costs have continued to increase. In that respect the Woolf reforms, one
49 ‘Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters’: Official Journal L 136, 24/05/2008 P 0003 – 0008. N. Trocker and A. De Luca (eds.), La Mediazione Civile alla Luce della Direttiva 2008/52/CE (Firenze University Press, 2011). 50 Cross-Border Mediation (E.U. Directive) Regulations 2011/1133. 51 For an empirical study, T. Goriely, R. Moorhead and P. Abrams, More Civil Justice? The Impact of the Woolf Reforms on Pre-Action Behaviour (Law Society and Civil Justice Council, London, 2001). 52 Practice Direction-Pre-action Conduct, para. 8.1. 53 Lecture entitled ‘Docketing: Completing Case management’s Unfinished Revolution’ (2012), at [3]: http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mor -speech-solicitors-cost-conference-lecture-feb2012.pdf.
(1) the success fee and the ATE premium (after-the-event legal expenses insurance) would cease to be recoverable by the victorious party from the defeated party in cfa-funded (conditional fee agreement) litiga- tion; but the successful client will need to pay his lawyer that success fee; (2) US-style contingency fee agreements would be lawful, that is, victori- ous lawyers receiving a percentage slice of the victory cake (limited to a maximum of 25 per cent of damages); but the level of the fee would be regulated; a defeated defendant would be liable to pay the victorious party’s ordinary costs (rather than the percentage success fee).
The Jackson report’s recommendations were severely criticised by Zuckerman in the Civil Justice Quarterly.55 However, despite these criticisms, and following a general consultation,56 the Government announced in 2011 (press release of 29 March 2011 by the Ministry of Justice, London) that it would implement the Jackson Report’s main proposals.57 These changes are contained in Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. In a lecture (2012) Lord Neuberger MR (as he then was) suggested that ‘the vast majority of the reforms will, assuming Parliamentary approval is forth- coming, now come into force in April 2013’.58
54 Sir Rupert Jackson’s Review of Civil Litigation Costs: Final Report (London, 2010). 55 A. Zuckerman, ‘The Jackson Final Report on Costs—Plastering the Cracks to Shore up a Dysfunctional System’ (2010) 29C.J.Q. 263. 56 Proposals for reform of civil litigation funding and costs in England and Wales (Consultation Paper 13/10: November 2010: Cm 7947). http://www.justice.gov.uk/docs/ jackson-consultation-paper.pdf. 57 http://www.justice.gov.uk/news/press-release-290311a.htm. 58 Lecture entitled ‘Docketing: Completing Case Management’s Unfinished Revolution’ (2012), at [3]: http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mor -speech-solicitors-cost-conference-lecture-feb2012.pdf.
XII Civil Justice beyond Public Scrutiny
The process of settlement, including mediated settlements, is not perfect. Possible objections to settlement (including mediated settlements) are:59 (1) parties to settlement might not fully understand their respective positions; (2) the parties might be significantly unequal in various ways;60 (3) a party might have procured the settlement by underhand dealing;61 (4) a party’s full civil entitlement should not be reduced by compromise;62 (5) assessment of the ‘merits’ must be measured, precise, and exacting;63 (6) the public search- light at trial should be shone upon serious wrongdoing. It would be unfortunate if the system of private justice were invariably to shield from public view last-minute settlements designed to avoid scandal or
59 For a convenient collection of literature addressing these points, H. Genn, ‘Understanding Civil Justice’ (1997) 50C.L.P. 155, 186–187. 60 Genn has said: ‘…studies highlight…the ways in which power influences the outcome of set- tlement negotiations… Factors which are important are: legal intelligence—getting the right lawyers and experts; financial resources-paying for the [same]; and having the psychologi- cal, social, and economic ability to endure litigation’: H. Genn, ‘Understanding Civil Justice’ (1997) 50C.L.P. 155, 179; see also H. Genn, Hard Bargaining: Out of Court Settlement in Personal Injury Actions (Oxford University Press, 1987) (reviewed N. Andrews [1989] C.L.J. 506) and other studies cited by Genn (1997) ibid.; see also H. Genn, The Paths to Justice: What People Do and Think About Going to Law (Hart, Oxford, 1999); H. Genn, ‘Court-Based ADR Initiatives for Non-Family Civil Disputes: The Commercial Court and the Court of Appeal’ (Department for Constitutional Affairs Research Reports 1/2002, 2002): www.hmcourts-service.gov.uk/docs/adr_initiatives.pdf (this last piece in exam- ined briefly in Section 5 of the author’s paper on the Commercial Court and case management). 61 For example, an aggrieved party to a compromise ‘threw the contractual book’ at the opponent, in an attempt to overturn the compromise, Halpern v. Halpern (No. 2) [2007] EWCA Civ 291 (distribution of estate among family members; allegation that not all rele- vant assets were revealed and that the compromise should be regarded as vitiated on numerous suggested grounds; the report at [2007] 3 All E.R. 478 concerns a specific aspect of the case; consult the online version at [1] et seq. for the numerous contractual chal- lenges); cf also for an allegation that a mediated settlement had been procured by duress, Farm Assist Limited (in liquidation) v. The Secretary of State for the Environment, Food and Rural Affairs (No. 2) (2009) [2009] EWHC 1102 (TCC), [2009] B.L.R. 399; 125 Con. L.R. 154. 62 One of Jeremy Bentham’s anxieties: S. Roberts, ‘Settlement as Civil Justice’ (2000) 63 M.L.R. 739, 743 n. 11, W. Twining, ‘Alternatives to What?…’ (1993) 56 M.L.R. 380, 384 (exam- ining various theorists’ accounts of the civil process, notably, Bentham, Llewellyn, Fuller, and Damaska). 63 For a stimulating account of accuracy and legality, J.A. Jolowicz, ‘The dilemmas of civil litigation’ in On Civil Procedure (Cambridge University Press, 2000), ch. 4.
64 See the ‘Halford’ affair, July 1992, discussed N. Andrews, Principles of Civil Procedure (London, 1994), 26. 65 Such complaints have received publicity: for Parliamentary comment in 2006 on a Q.C.’s report into one set of incidents, http://www.publications.parliament.uk/pa/ld199900/ ldhansrd/pdvn/lds06/text/60329-05.htm. 66 Typically, customer’s garage failing to fit replacement mechanical part bearing manufac- turer’s ‘logo’, even though part in fact fitted has same objective specification as the manu- facturer’s named part; facts told to the author: for the legal background to this, see the Office of Fair Trading’s comments at http://www.oft.gov.uk/News/Press+releases/2003/ PN+170-03.htm. 67 Examples must be legion; for example, English Churches Housing Group v. Shine [2004] EWCA Civ 434. 68 [2011] EWHC 668 (QB), Slade J. 69 s. 120, Equality Act 2010, and s. 203, Equality Rights Act 1996.
XIII Concluding Remarks
I. Parties and their lawyers are required to be—cynics might say ‘appear to be’—co-operative. II. The higher vocation of litigation lawyers places them in a special cat- egory of professional. Although paid by clients, or vanquished oppo- nents (under the loser-must pay or costs-shifting rule), lawyers owe their overriding duty to the interests of justice. III. Court proceedings are now conducted under the watchful eye of judi- cial case managers. Civil judges have been required to multi-task. They are no longer merely adjudicators at trial. IV. A rich and impressive canon of procedural principles has emerged. There is international agreement on most of this canon. V. Judges have greater responsibility heaped upon them. They enter a bureaucracy, a system of intense public regulation. It has become more difficult to attract the best to become leading judges. VI. The procedural code, the vast apparatus of the cpr (1998), has become heavy and convoluted. VII. The expense of going to law has not diminished. If they have a choice, people shop around. VIII. Privatised justice has flourished. Demand for confidential and more flexible forms of dispute resolution is unlikely to diminish. But pri- vate results—whether settlements, mediated settlements, or arbitral awards—are shielded from public scrutiny. IX. Neither the private system nor the public system of civil justice is in perfect shape. There is a manifest need for radical improvement of each system, and the connections between them.
Dmitry Magonya**
I Introduction
The matter concerning goals and objectives of the civil procedure that may include ensuring of justified public court proceedings conducted by an independent and unbiased court may seem old and trite. However, Professor A. Uzelac believes that the interest to the matter has recently grown and there is an obvious connection between a detailed discussion or even full reconsid- eration of goals and objectives of the civil procedure, on one hand, and success of procedural reforms undertaken in many countries, on the other hand.1 As Professor M. Treushnikov noted at the recent Moscow conference, the comparative law method under contemporary conditions and globalization first requires the learning of procedural values of procedural systems common for all nations.2 Such values include the fundamental norms (principles) rec- ognized and recorded in international documents; such as the principle of
* This report is a result of professional discussions with colleagues from various countries taken during the Moscow Conference of the International Association of Procedural Law that took place on 18–21 September. As it was determined that foreign colleagues somehow misunderstood the civil procedure development trends in Russia which is caused by insignificant number of Russian scientists’ works translated to working languages and not very active participation of Russian colleagues in international professional discussions. As stated Marcel Storme in his introductory report in Moscow, the situation has been recently changed, and I am very thankful to Professor Storme for his positive assessment and invitation to participate in this conference. M. Storme, “Best Science, Worst Practice?,” Civil Procedure in Cross-cultural Dialogue: Eurasia Context: IAPL World Conference on Civil Procedure, Russia: Conference book (Moscow, 2012), p. 17. ** Dmitry Magonya is the Managing Partner of ART DE LEX Law Firm (Russia), concentrating on civil (arbitration) procedural law and corporate and competition law. Mr Magonya also over- sees Social Responsibility and Pro Bono, including professional higher education projects. 1 A. Uzelac, “Goals of Civil Justice. General Report,” Civil Procedure in Cross-cultural Dialogue: Eurasia Context: IAPL World Conference on Civil Procedure Russia: Conference book (Moscow, 2012), p. 113. 2 Michael Treushnikov, “Evolution of the Russian Civil Procedure at the Beginning of the XXI Century,” Civil Procedure in Cross-cultural Dialogue: Eurasia Context: IAPL World Conference on Civil Procedure Russia: Conference book (Moscow, 2012), p. 28.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_019
II Goals and Objectives of the Civil Procedure
As S. Nikitin stated in his report, civil proceedings are carried out in the Russian Federation by courts of general jurisdiction and arbitration courts. Courts of general jurisdiction consider civil cases with public involvement.6 In contrast to foreign arbitration courts, arbitration courts of the Russian Federation are state-owned courts, not tribunals, and consider economic disputes involving
3 Universal Declaration of Human Rights [1948] unga, at. [10]//www.un.org/en/documents/ udhr/; European Convention on Human Rights [2002] Council of Europe, at. [6]//www.echr .coe.int/Documents/Convention_Eng.pdf; International Covenant on Civil and Political Rights [1966] unga, at. 14//http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg _no=IV-4&chapter=4&lang=en. 4 D. Maleshin, “Civil Procedural System of the Russian Federation” (2011). 5 See note 5 above. 6 S. Nikitin, “Appointment of Judges and Juridical Responsibility of Judges in the Russian Federation” (2012), International Conference on Judicial Independence: Impartiality and Fairness of the Judicial Process Ghent (2012), Conference Materials.
III Independence
The principle of independence of judges is announced in Article 120 of the Constitution of the Russian Federation that states the following: “Judges are independent and shall only obey the Constitution and federal laws.”11
7 Constitution of the Russian Federation 1993, s. 15 (4) amended by the laws No. 6-FKZ 2008 and No. 7-FKZ 2008, No. 7 Russian newspaper (2009). 8 Universal Declaration of Human Rights 1948, s. 10//www.un.org/en/documents/udhr/. 9 European Convention on Human Rights 2002, s. 6//www.echr.coe.int/Documents/ Convention_Eng.pdf. 10 International Covenant on Civil and Political Rights 1966, s. 14//http://treaties.un.org/ Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en. 11 Constitution of the Russian Federation 1993 amended by the laws No.6-FKZ 2008 and No. 7-FKZ 2008, No. 7 Russian newspaper (2009).
The independence of judges is guaranteed by the Law of the Russian Federation on the Status of Judges of the Russian Federation. Independence consists of two components: external independence (from an outside pressure) and inter- nal independence (from an inside pressure). Nowadays, international standards determine that state and other institu- tions should respect and keep the judiciary independent.12 На европейском уровне international standards provide for six elements guaranteeing inde- pendence of judges: procedure for appointment of judges; non-removability of judges; binding nature of court resolutions; equality within the judicial power; freedom from improper external influence; and correct arrangement of financ- ing of the judicial system.13 There are also remarkable international standards developed by non- government organizations. One of the interesting samples that the Russian legislative and judiciary community should pay attention to is Mt. Scopus International Standards of Judicial Independence.14 For the last twenty years, Russia has undertaken significant efforts to ensure court independence.15 Meanwhile, there are known cases when foreign courts and arbitration courts were chosen for resolution of cases of clearly Russian
12 Basic Principles on the Independence of the Judiciary [1985] United Nations//http://www .ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx. 13 Recommendation N (94)12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges [1994], Council of Europe, Committee of Ministers//https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet .CmdBlobGet&InstranetImage=534553&SecMode=1&DocId=514386&Usage=2. 14 Mt. Scopus International Standards of Judicial Independence (2008)//www.jiwp .org/#!mt-scopus-standards/c14de. 15 The beginning was set when the Supreme Soviet of the rsfsr approved the resolution No. 1801–1 dated October 24, 1991 that endorsed the concept of judicial reform in the rsfsr. In 1993 in principle the new Constitution of the Russian Federation was accepted, and it secured the transmission of Russia to the new economic and political system different than the previous soviet system. After 10 years since adoption of the concept of judicial reform in Russia, a number of documents on the further development of current judicial system was accepted according to accumulated experience of court activity. Federal tar- get programs on development of judicial system in Russia 2002–2006 and 2007–2011 are among them. The most important areas of judicial reform in particular include: creation of the federal judicial system; recognition of the right of every person to take proceedings before a jury trail in cases established by law; expanding the possibilities to appeal in the court on misconduct by officials; organization of the legal proceedings on the principles of competitiveness and equality of parties; differentiation of forms of legal proceedings; improving the system of judges independence guarantees and their subordination only to the law, assignment the principle of irremovability.
16 Cherney v. Deripaska [2008] EWHC 1530 (Comm), [2009] EWCA Civ 849; Yukos Capital SARL v. OJSC Rosneft Oil Company [2011] EWHC 1461 (Comm); VTB Capital Plc v. Nutritek International Corp & Ors [2011] EWHC 1887 (Comm); Slutsker v. Haron Investments Ltd & Anor [2012] EWHC 2539 (Ch). 17 Information was received by author as a result of his own research and communications with the judicial bodies of the Russian Federation, Judicial Department of the Supreme Court of the Russian Federation; it has never been published. 18 Piersack v. Belgium (Application No. 8692/79) [1982] echr http://hudoc.echr.coe.int/ sites/eng/pages/search.aspx?i=001-57557#{“itemid”:[“001-57557”]}.
IV Fairness
In the formation of the concept of a fair trial, the Universal Declaration of Human Rights (1948) played a decisive role recognizing the human right that everyone is entitled: to full equality to a fair and public hearing by an indepen- dent and impartial tribunal, in the determination of his rights and obligations. The principle of judiciary independence, subject to its effective implemen- tation, is fundamental for fair court proceedings. However, justice sounds dif- ferently in Russia. The Russian words truth (правда [pravda]) and fairness (справедливость [spravedlivost]) contain the same root. G. Vernadskiy, an outstanding Russian historian, wrote that both terms were originally used in Ancient Russia as synonyms, which provides specific perception of the judicial power since ancient times up to date. It is connected not only with quality of fairness, but also with the role of courts in the society and their powers. As the socio-cultural aspects of Russian society determine, as we noted above, signifi- cant collective elements in the society, the mentality of litigants does not pro- vide for the parties’ activity in the process. They associate protection of rights with a court that has to resolve a case on a fair basis. In the legal theory,20 the above provision was understood as the require- ment for judges to ensure that their decisions strictly and fully comply with the objective truth. Such approach has been included in the soviet civil procedural laws when the principle of material (objective) truth was considered an impor- tant part of the legality principle which was shown on practice in effective role of courts in evidence gathering to find the material truth as the key task of the court.21 As a result of procedural reforms of the last twenty years, the approach has significantly changed as the definition of the material (objective) truth clearly contradicts the permissive rule and adversarial principle of the modern civil procedure. Meanwhile, the role of courts continues to be moderately active which is expressed in their effectiveness in evidence gathering and revi- sion of cases in exercise of supervisory powers.22
19 A. Barak, Judicial Discretion (Moscow, 1999), p. 163. S. Shetreet, “Creating a Culture of Judicial Independence,” The Culture of Judicial Independence (Leiden-Boston, 2012), p. 34. 20 See, for instance, V. Ryazanovsky, Unity of the process (Moscow, 2005), p. 35; T. Yablochkov, Manual: Russian civil proceedings (Yaroslavl, 1910), p. 27; Manual: The Civil Procedure (ed.) by M. Treushnoikov (Moscow, 2010), p. 73. 21 Civil Procedural Code of the rsfsr 1923, s. 5; Civil Procedural Code of the rsfsr 1964, s. 14. 22 V. Yakovlev, Jural state: questions of foundation (Moscow, 2012), p. 226.
Modern conditions underline the goal to reach efficient court proceedings, that is, to resolve as many cases as possible during a certain period of time. E. Silvestri states that the situation in Italy where any procedural goals are directed only at one thing, namely, fight with a flow of new cases and reduction of huge lists of unresolved cases, is the most dramatic.23 We can observe some- thing similar today in Russia where judges themselves describe their scope of work as monstrous. Practical requirements absolutely displace the old doc- trine of searching for objective (material) truth that is now replaced by, so called, formal truth and the principle of access to fairness and requirement of reasonable timeframe for consideration and resolution of cases.24
V Impartiality
Impartiality is an evaluating category characterizing the decision-making pro- cess and attitude of a judge to parties arguments. Most lawyers agree that the more effective the guarantee of the independence of the judiciary, the more likely it is to be impartial. And further, the higher the level of the guarantee of fair hearing, the greater chance of a fair trial. According to the Russian codes of practice, the conditions ensuring the impartiality of the court are the rule of inadmissibility of trying a case by the judges, if there are reasonable doubts on the part of their impartiality,25 right of challenging,26 and the inadmissibility of a judge’s repeated participation in the consideration of the case.27 The principles of equality of the parties, con- tentiousness and discretionary norms of civil litigation serve the guarantee of the impartiality of the judiciary.28
23 E. Silvestr, “Goals of Civil Justice. Italian National Report,” Civil Procedure in Cross-cultural Dialogue: Eurasia Context: IAPL World Conference on Civil Procedure Russia: Conference book (Moscow, 2012), p. 189. 24 “Superiors’ disputes. Chairmans of the Supreme and Supreme Commercial Courts Vyacheslav Lebedev and Anton Ivanov were divided in opinions on the way of improving judicial system”//http://www.arbitr.ru/press-centr/smi/36111.html. 25 Arbitration Procedural Code of the Russian Federation, s. 21 (1); Civil Procedural Code of the Russian Federation, s. 16 (1). 26 Arbitration Procedural Code of the Russian Federation, s. 24 (1); Civil Procedural Code of the Russian Federation, s. 19. 27 Arbitration Procedural Code of the Russian Federation, s. 22; Civil Procedural Code of the Russian Federation, s. 17. 28 Arbitration Procedural Code of the Russian Federation, s. 4, 8–9; Civil Procedural Code of the Russian Federation s. 3, 12.
VI Conclusion
With strengthening the court’s role in resolving social conflicts, the impor- tance of legislative guarantees of judicial independence grows. According to Valery Zorkin, the Chairman of the Constitutional Court of the Russian Federation, independence of courts and judges is the most important guaran- tee of civil rights to judicial protection and to a fair trial as a prerequisite for making a fair decision. Of course, independence, impartiality and fairness, presume real protection of the court against any attempt to apply pressure from the outside. The effective solution to this problem requires the combina- tion of knowledge and experience of experts in procedural law from different countries to understand and test all worthy ideas and approaches.
Cyrus Das*
The English common law, in some form or other, is applied in about 55 coun- tries around the world which house about one-third of the world’s population. The courts of these countries show a remarkable similarity in their approach towards judicial bias and the recusal of judges. The variance is in the differ- ence, somewhat slight, in the tests formulated by their superior courts to deter- mine bias or recusal. These tests may broadly be stated as the ‘real danger of bias’, ‘real possibility of bias’, ‘real likelihood of bias’, ‘real suspicion of bias’ or ‘reasonable apprehension of bias’ tests. Their application is, of course, entirely situational. Nevertheless there is near uniform acceptance that the tests are to be applied objectively from the standpoint of a reasonable and informed observer. It reduces the exercise to a matter of perception by the judges who are to put themselves in the shoes of the reasonable bystander. In the result, it often appears that the real test is the perception of the judges influenced by their own experiences and background rather than a clinical application of the legal tests. For example, the handing of a bouquet of flowers by a juror to the mur- der-victim’s mother saw a sharp division of opinion in the High Court of Australia on a 3:2 basis with the majority holding that it was an excusable albeit imprudent act of sympathy and the minority saying it was an act of solidarity that disqualified the juror.1 The only reality may well be the observation by the South African Constitutional Court that ‘absolute neutrality is a chimera’:2
* 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. 1 Webb v. R[1994] 122 A.L.R. 41. 2 South African Commercial Catering Workers Union v. Irvin & Johnson Ltd. [2000] 3 S.A .705 (cc) at [13].
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_020
I The Usual Grounds of Recusal
A useful tabulation of the likely circumstances of disqualification was given by Deane J. in his dissent in the Webb case.3 He identified four usual areas of disqualification: i. disqualification by interest ii. disqualification by conduct iii. disqualification by association; and iv. disqualification by extraneous information.
As Deane J. explained the characterisations above may overlap but they could also be recognised as distinct categories which occur in the following circumstances: i. On disqualification by interest it is ‘where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a rea- sonable apprehension of prejudice, partiality or prejudgment.’ ii. Disqualification by conduct, includes ‘published statements’ and ‘con- sists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias’. iii. Disqualification by association ‘consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect rela- tionship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings’. iv. Disqualification by extraneous information overlaps with the third, but commonly ‘consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias’.
A The Tests for Recusal
As stated, the tests formulated for judicial bias or recusal in the Commonwealth courts show a remarkable unity or consistency and vary only in degree and emphasis. They relate of course to apparent bias as opposed to actual bias. If it is the latter, as Lord Goff said ‘it is the end of the case’.4 The tests are generally made applicable to all tribunals sitting in a judicial or quasi-judicial capacity without distinction between judges and jurors.
3 Webb v. R. [1994] 122 A.L.R. 41. 4 R. v. Gough (1993) 2 All E.R. 724 at p. 730.
The leading case of R v. Gough,5 in the United Kingdom was a jury case and saw a definitive pronouncement by the House of Lords that the governing test is the ‘real danger of bias’ test. It sought to clarify the so-called ‘legacy of confu- sion’ left behind by Lord Denning’s judgment6 on whether that case did stipu- late the ‘real likelihood’ test. For example, Lord Widgery CJ7 had declared that he was left uncertain after Lannon whether the prevailing test was the ‘real likelihood’ test or the ‘reasonable suspicion’ test. Lord Goff in Gough in opting for the ‘real danger’ test also repudiated the Denning approach that the court should look at the matter from the eyes of the reasonable man saying that ‘the court in such cases personifies the reasonable man’ (p. 737). Gough had sought to settle these matters with finality. However, a decade later Gough itself underwent a modification8 where the issue was whether the auditor’s certificate for a surcharge should be quashed for apparent bias. The House of Lords noted that Gough had ‘not commanded universal approval’ (p. 507) since its delivery and that although the opportu- nity arose,9 Lord Browne Wilkinson (p. 589) had not found it necessary on the facts of that case to deal with the subsequent decisions in Canada, New Zealand and Australia (p. 506) that had not followed Gough. The main objection from the other jurisdictions seems to have been that Gough emphasises ‘the courts view of the facts and places inadequate emphasis on the public perception of the irregular incident’.10 The ‘modest adjustment’ to Gough proposed in Magill was to make the test more objective and bring it in line with Strasbourg jurisprudence. The Gough test is to be replaced with the test of whether a fair minded and informed observer would conclude that there was ‘a real possibility’ that the tribunal was biased (p. 507). Lord Hope added the wish that the new test ‘removes any pos- sible conflict with the test now applied in most Commonwealth countries and Scotland’ (p. 507). This aspiration may have been over-ambitious. A difference has arisen in many common law countries over Magill with some adopting the Magill change and others not. For example Malaysia has declined to follow the modi- fication made by Magill on the basis of it being inspired by Strasbourg jurispru- dence which is not applicable in Malaysia. The apex court in Malaysia opted to
5 supra note 4. 6 Metropolitan Properties Ltd. v. Lannon [1968] 3 All E.R. 304. 7 R v. Altrincham Justices exparte Pennington [1975] 2 All E.R. 78. 8 Porter v. Magill [2002] 1 All E.R. 465 (Magill). 9 Pinochet No. 2 [1999] 1 All E.R. 577. 10 See criticism by High Court of Australia in Webb, supra.
“On appeal to the Privy Council the appellants invited the Board to adopt for New Zealand the adjustment of the test in Gough enunciated by Lord Hope of Craighead in Porter v Magill [2001] 2 WLR 37, namely that ‘The question if whether the fair-minded and informed observer, having consid- ered the facts, would conclude that there was a real possibility that the tri- bunal was biased’ (para [103]). This adjustment is consistent with European and Scottish jurisprudence, and is broadly in line with Australian jurispru- dence. Both tests proceed from the point of view of an informed view of the facts, and both concentrate on the possibility of bias. But the adjusted test emphasises the perspective of the fair-minded observer rather than the view of the Court. The Board does not have the benefit of the view of the Court of Appeal on the point whether the law in New Zealand should be so altered. In these circumstances, Their Lordships are not persuaded that it would be right to restate the law for New Zealand as requested.”
In the result, the differing approaches continue. The Australasia region has developed its own approach holding itself not bound by Gough or Magill. In Webb, supra, the High Court of Australia laid down the ‘reasonable apprehen- sion of bias’ test, which is now accepted as ‘settled authority’ in Australia.15
11 Dato’ Tan Heng Chiew v. Tan Kim Hor [2006] 1C.L.J. 577; Majlis Perbandaran Pulau Pinang v. Sykt. Sg. Glugor Cooperative [1999] 3C.L.J. 65. 12 Stubbs v. AG [2010] 4 L.R.C. 103. 13 Demorca v. Opportunity Equity Patners Ltd. [2007] 3 L.R.C. 1 P.C. 14 Man O’War Station Ltd. v. Auckland City Council [2002] 3 N.Z.L.R. 577. 15 Kirby J. in Ebner v. Official Trustee [2000] 176 A.L.R. 644 at [162].
In the Pacific, the Court of Appeal in Fiji16 declined to choose between the Gough test and the Webb test saying there is little practical difference between the two. Marshall JA observed (p. 287):
“The (Fiji) Supreme Court in Koya v State [1998] FJSC 2 (observed): ‘Subsequently, the New Zealand Court of Appeal, in Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142, held that it would apply the Gough test. In reaching that conclusion, the Court of Appeal consid- ered that there was little if any practical difference between the two tests, a view with which we agree, at least in their application to the vast major- ity of cases of apparent bias. That is because there is little if any differ- ence between asking whether a reasonable and informed person would consider there was a real danger of bias and asking whether a reasonable and informed observer would reasonably apprehend or suspect bias’. It is authoritative in Fiji because it is the Supreme Court and because the court consisted of the respected Sir Timoci Tuivaga and two distinguished jurists. I refer to Lord Cooke of Thorndon and Sir Anthony Mason. Authority is added by the fact that it was Sir Anthony Mason, as Chief Justice of Australia, who gave the leading judgment in Webb.”
Australia has also departed from the United Kingdom on the automatic dis- qualification rule where a judge has a direct or indirect pecuniary interest in the outcome of the case based on the classic Dimes principle.17 Pinochet No. 2, supra, saw the extension of the principle to a non-pecuniary interest. In Ebner, supra, the High Court of Australia declared ‘there is no separate and free-standing rule of automatic disqualification which applies where a judge has a direct pecuniary interest, however small, in the outcome of the case over which the judge is presiding’ [54]. The Court nevertheless qualified itself by saying that ‘the circumstance that a judge has a not insubstantial, direct, pecuniary or proprietary interest in the outcome of litigation will ordi- narily result in disqualification’ [58]. The Dimes principle was moderated by the Australian High Court as follows at [55]:
“There is a difference between having an interest in the outcome of a case, and having an interest in a party to the case. Dimes and the cases which have followed it have all recognised application invariable of
16 Tikoniyaroi v. State [2012] 2 L.R.C. 280. 17 Dimes v. Grand Junction Canal [1852] 10 E.R. 301.
principle a to conclusion of statement that Elevating…difference that that interest the is What tested be never would makes it which assump- tion the that mean would the judge has in the cause? The apprehension of bias principle requires articulation of the connection between the asserted interest and the disposition of the cause which is alleged. If, on examination, the judge does have a financial interest in the outcome of the litigation, the application of the apprehension of bias principle will lead to the judge being disqualified. By contrast, where, as here, it is clear that the outcome of a case would have no bearing upon the value of the shares held by the judge in the listed public company, and there is no other suggested form of pecuniary interest involved, then the judge does not have a direct pecuniary interest in the outcome of the litiga- tion.” Canada, like Australia, adopts the ‘reasonable apprehension of bias’ test.18
In South Africa, in adopting the same test, the South African Constitutional Court explained its preference for ‘apprehension of bias’ rather than ‘suspicion of bias’ in these terms:19
“Because of the inappropriate connotations which might flow from the use of the word ‘suspicion’ in this context, we agree and share this prefer- ence for ‘apprehension of bias’ rather than ‘suspicion of bias’. This is also the manner in which the Supreme Court of Canada formulates the test….”
It is seen from the brief survey above that the ‘reasonable apprehension of bias’ test and ‘the real danger/possibility of bias’ test rule the field in most com- mon law countries. In addition to the formulated tests, we may now look at the Locabail guidelines on judges’ response to circumstances that may cause judi- cial impairment.
II The Locabail Guidelines on Judicial Impartiality
Judges come with past associations and experiences to the bench and it is gen- erally believed that a varied background would enrich their understanding and
18 R v. S (RD) [1997] 118C.C.C.(3d) 353; Canadian Pacific Ltd. v. Matsqui Indian Band [1995] 122 D.L.R. (4th) 129. 19 see Chaskalson CJ in President of Republic of South Africa v. South African Rugby Football Union [1999] (4) S.A. 147 (C.C.) at 172.
20 Locabail Ltd. v. Bayfield Properties Ltd. & Associated Cases [2000] 1 All E.R. 65.
of an objection. Nor, ordinarily, can an objection be soundly based on the judge’s social, educational, service or employment background or that of his family; his previous political associations; his membership of social, sporting or charitable bodies; his Masonic associations, his previous judi- cial decisions; his extra-curricular utterances; his previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or his membership of the same Inn, circuit, local Law Society or chambers. … v. In contrast, a real danger of bias may well be thought to arise if there is personal friendship or animosity between the judge and any member of the public involved in the case, if the judge is closely acquainted with any member of the public involved in the case, particularly if that person’s credibility may be significant in the outcome of the case; … vi. Where, following appropriate disclosure by the judge, a party raises no objection to the judge hearing or continuing to hear a case, that party cannot subsequently complain that the matter disclosed gives rise to a real danger of bias.
III How Recusal Bids Have Fared in Four Apex Courts
A quick survey of how four apex courts in common law jurisdictions, including some lesser known jurisdictions, have handled recusal applications is instructive. In the United Kingdom, in Pinochet No. 2 supra, the House of Lords ruled that Lord Hoffmann should have recused himself in the Pinochet extradition case because of his association with Amnesty International (ai), an interven- ing party in the proceedings. The apparent bias was classified as a case of auto- matic disqualification because of connection with a party. Lord Browne Wilkinson said (at p. 588):
‘If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart CJ’s famous dictum is to be observed: it is ‘of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’.21
21 R v. Sussex Justices, ex p McCarthy [1924] 1 KB 256 at 259, [1923] All ER Rep 233 at 234.
In Nigeria, its Supreme Court acceded to the recusal of its chief justice and eight other supreme court judges on the application of Chief Abiola, the victor in the presidential elections, in his bail application on treason charges.22 It was contended that the judges concerned had earlier sued a newspaper owned by Chief Abiola and there would be a perception of bias if they were to hear the criminal charges against him although no actual bias was alleged. Bello CJ applying the Denning test of ‘real likelihood of bias’ from the Metropolitan Properties case, supra, ruled that justice would not appear to be done from a reasonable man’s perspective if he and the eight other judges sat. Accordingly he and the affected judges recused themselves. However in the United States Supreme Court, because of its status as the apex court and the fact that recusal could lead to a tie vote, there is a rule against an associate justice recusing him- self out of excess of caution. This is evidently found in a declaratory note called the 1993 Statement of Recusal Policy by the Justices. The Statement was relied on by Justice Antonin Scalia to decline to recuse himself in a case pending before the Supreme Court where then Vice-President Dick Cheney was a party. The ground for recusal was that Justice Scalia had gone on a duck-hunting trip over the summer with the Vice-President and had flown as his guest in the Vice-Presidential plane. In ruling against his recusal,23 Justice Scalia relied, inter alia, on the Policy Statement, and stated (at p. 1394):
Let me respond, at the outset, to Sierra Club’s suggestion that I should “resolve any doubts in favor of recusal.” That might be sound advice if I were sitting on a Court of Appeals. But see In re Aguinda, 241 F.3d 194, 201 (C.A.2 2001). There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case. Thus, as Justices stated in their 1993 Statement of Recusal Policy: “We do not think it would serve the public interest to go beyond the requirements of the statute, and to recuse ourselves, out of an excess of caution, whenever a relative is a partner in the firm before us or acted as a lawyer at an earlier stage. Even one unnecessary recusal impairs the functioning of the Court.” Moreover, granting the motion is (insofar as the outcome of the particular case is concerned) effectively the same as casting a vote against the petitioner. The petitioner needs five votes to overturn the judgment below, and it
22 Abiola v. Federation of Nigeria [1995] 3 L.R.C. 468. 23 Cheney v. US District Court of Columbia 541 U.S. 913 [2004].
makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.
The case is also significant for the observation by Justice Scalia on whether friendship with a government official should be a recusal factor where it is an official action and the individual is cited as a party in his official capacity. On this Justice Scalia observed (p. 1394):
But while friendship is a ground for recusal of a Justice where the per- sonal fortune or the personal freedom of the friend is at issue, it has tra- ditionally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or the reputation of the Government officer.
On the complaint that he had been a guest in the Vice-Presidential plane for the summer trip, Justice Scalia made this scathing observation (p. 1403):
The question, simply put, is whether someone who thought I could decide this case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a Government plane. If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined.
On the whole, the Scalia approach seems out-of-step with established criteria in other common law jurisdictions where the predominating factor is perception. Another case of friendship with ruling politicians being raised as a disquali- fying factor was the South African Rugby Football Union case, supra, before the South African Constitutional Court. It arose in a case where there was a legal challenge to President Mandela’s appointment of a commission of inquiry into the financial affairs of the Football Union. At the hearing, recusal was sought of Chief Justice Chaskalson and some of the other judges including Justices Langa and Sachs on several grounds. A common ground against the named judges was their close association with President Mandela and the African National Congress (anc, the ruling party) both at a personal and professional level before their appointments to the Bench. Against the Chief Justice it was said that he had been President Mandela’s personal lawyer and had also acted for the President’s wife, and was on social terms with the President. The details of the other grounds for recusal are set out in extenso in the judgment. Recusal
[70] That a Judge may have engaged in political activity prior to appoint- ment to the Bench is not uncommon in most if not all democracies, including our own. Nor should it surprise anyone in this country. Upon appointment, Judges are frequently obliged to adjudicate disputes which have political consequences. It has never been seriously sug- gested that Judges do not have political preferences or views on law and society. Indeed, a Judge who is so remote from the world that she or he has no such views would hardly be qualified to sit as a Judge. What is required of Judges is that they should decide cases that come before them without fear or favour according to the facts and the law, and not according to their subjective personal views. This is what the Constitution requires. … [71] In this application much reliance was placed by the fourth respon- dent on the association of its Bench. The to appointment their to prior ANC the with Court this of members the of some necessary therefore to give further consideration to this specific complaint. … [75] As mentioned earlier, all Judges are expected to put any party political loyalties behind them on their appointment and it is generally accepted that they do so. In South Africa, so soon after our transition to democracy, it would be surprising if many candidates for appointment to the Bench had not been active in or publicly sympathetic towards the liberation struggle. It would be ironic and a matter for regret if they were not eligible for appointment by reason of that kind of activity. … [76] In our opinion it follows that a reasonable apprehension of bias cannot be based upon political associations or activities of Judges prior to their appointment to the Bench unless the subject-matter of the litiga- tion in question arises from such associations or activities. In this case that is not alleged by the fourth respondent.
It would be invidious to compare one set of circumstances with another but as comparables go it is revealing how different conclusions are arrived at by the application of somewhat similar criteria. By the austere yardstick of the South African and Scalia decisions, the recusals in the Pinochet case and the Nigerian case may well have been over-cautious. In the former cases, the self assertion of impartiality by the judges was the noticeable feature whereas in the latter cases the perception element was the key factor. The perception approach is
24 Patrick Devlin, The Judge (OUP, 1981) at p. 3.
Shimon Shetreet*
I Overview
In most common law jurisdictions there has been a shift from a practice of non-written judicial traditions on judicial conduct to a practice of written codes. In the United States, the American Bar Association (“ABA”) drafted a code of judicial conduct in 1924.1 The aba’s updated code of judicial conduct is currently embodied in the 2011 Model Code of Judicial Conduct.2 A written judicial code for Federal Judges was adopted in 19733 and there are additional
* Shimon Shetreet, LLB, LLM, Hebrew University, MCL, DCL, University of Chicago, holds the Greenblatt Chair of Public and International Law at the Hebrew University of Jerusalem, and is past chairman of the Sacher Institute of Legislative Research and Comparative Law. Author and editor of many books and articles. President International Association of Judicial Independence and World Peace email: [email protected]. 1 American Bar Association 1924 Cannons of Ethics – accessed at www.americanbar.org/ content/dam/aba/migrated/cpr/pic/1924_canons.authcheckdam.pdf. 2 See the Model Code of Judicial Conduct 2011 – accessed at www.americanbar.org/content/ dam/aba/administrative/professional_responsibility/2011_mcjc_table_of_contents .authcheckdam.pdf. 3 See the Code of Conduct for US Judges 1973, as amended – accessed at www.uscourts.gov/ Viewer.aspx?doc=/uscourts/RulesAndPolicies/conduct/Vol02A-Ch02.pdf. The Code of Conduct for United States Judges was initially adopted by the Judicial Conference on April 5, 1973, and was known as the “Code of Judicial Conduct for United States Judges.” See: JCUS- APR 73, pp. 9–11. Since then, the Judicial Conference has made the following changes to the Code: March 1987: deleted the word “Judicial” from the name of the Code; September 1992: adopted substantial revisions to the Code; March 1996: revised part C of the Compliance sec- tion, immediately following the Code; September 1996: revised Canons 3C(3)(a) and 5C(4); September 1999: revised Canon 3C(1)(c); September 2000: clarified the Compliance section; March 2009: adopted substantial revisions to the Code. This Code applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges. Certain provisions of this Code apply to special masters and commissioners as indicated in the “Compliance” section. The Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces have
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_021
adopted this Code. The Judicial Conference has authorized its Committee on Codes of Conduct to render advisory opinions about this Code only when requested by a judge to whom this Code applies. 4 See the California Cannons of Ethics 2003 – accessed at www.courts.ca.gov/documents/ ca_code_judicial_ethics.pdf, as well as the Texas Code of Conduct – Accessed at www .legalethicstexas.com/Ethics-Resources/Rules/Texas-Code-of-Judicial-Conduct.aspx. 5 Canadian Judicial Council, Ethical Principles for Judges (1998) – accessed at www.cjc-ccm .gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf. 6 Council of Chief Justices of Australia, Guide to Judicial Conduct (2002) – accessed at www .aija.org.au/online/GuidetoJudicialConduct.pdf. For the practice in Australia see Mr Justice Thomas’ study, Judicial Ethics in Australia (2nd ed., 1997). 7 See the Guide to Judicial Conduct (for General Courts) – accessed at www.judiciary.gov .uk/Resources/JCO/Documents/Guidance/guide-judicial-conduct-aug2011.pdf. 8 See the Guide to Judicial Conduct 2009 (UK Supreme Court) – accessed at www .supremecourt.gov.uk/docs/guide_to_judicial_conduct.pdf. 9 HCJ 1622/00 Yoav Yitzhak v. Aharon Barak President of the Supreme Court 54(2) P D 54. 10 The Judicial Ethical Rules are drafted by the President of the Supreme Court in consulta- tion with the Minister of justice and are approved by the Law and Justice Committee of the Knesset, The Israeli parliament.
II The Binding Force of the Guide to Judicial Conduct in England
The English Guide to Judicial Conduct is generally considered persuasive. However, there are a number of lines of thought that support the view that the Guide to Judicial Conduct is not merely persuasive, but actually rather bind- ing. These lines of thought are detailed over the course of several interviews conducted with distinguished jurists and judges for the preparation of the 2nd edition of Shetreet Judges on Trial (1976)13 to be published by Cambridge University Press. One such line of thought is that most of the rules contained in the guide to judicial conduct are declaratory of the existing law and of exist- ing standards of judicial conduct.14
11 cpio (Central Public Information Officer) Supreme Court v. Subhash Chandra Agrawal CLXII Delhi Law Times 135 (2009) Per Judge S. Ravindra Baht. 12 See the Ministerial Code approved in 2010 by Prime Minister Cameron following previous Ministerial Codes – accessed at www.cabinetoffice.gov.uk/sites/default/files/resources/ ministerial-code-may-2010.pdf. In the US written rules were enacted by the Ethics in Government Act of 1978 (Public Law 95–251), or by a subsequent amendment to that Act. 13 Shetreet and Turenne, Judges on Trial: Independence and Accountability of the English Judiciary (2nd ed. 2013). 14 For reliance on the existing law, please see Paragraph 3.7 of the UK Supreme Court Guide to Judicial Conduct. Recent UK cases include Porter v Magill [2002] 2 AC 357, Locobail (UK) Ltd v Bayfield Properties Ltd [2002] QB 451, Re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR 700 and Helow v Secretary of State for the Home Department [2008] 1 WLR 2416., R. v. Bow “Street Metropolitan Stipendiary Magistrate and others” ex parte Pinochet Ugarte (No. 2), House of Lords, [1999] 1 All ER 577, [1999] 2 WLR 272. see also S. Shetreet, Standards of Conduct of International Judges: Outside Activities, 2 The Law and Practice of International Courts and Tribunals 127 (2003).
Similarly, one can argue that the proper rules of judicial conduct are implied conditions of the judicial office. An additional argument that supports the view that the Guide to Judicial Conduct is binding and not merely persuasive is that the duty of obeying the rules of the Guide are in fact part of the judicial oath of office that is taken by every judge on appointment to the bench. In fact the Guide to Judicial Conduct emphasises the judicial oath as an important basis for the implementation of the rules of judicial ethics, as part of the judi- cial oath.15 The view that the duty to obey the rules of ethics contained in the Guide of Judicial Conduct derives from a contractual basis is not a valid view, for judges are not considered to be “persons in Her Majesty’s Service,” but rather statutory officers. This was the basis of the judges’ position in the heated controversy over whether or not the salary cuts of the 1930s would be applied to judges. The judges argued that they were not to be included in the category of “persons in His Majesty’s Service” and therefore they were not subject to the salary cuts under the National Economy Act of 1931.16 In the end, the Judges prevailed and the cuts were not applied to the judiciary branch.
III The Need for a Written Code
The need for a written code of judicial ethics has become necessary due to the substantial increase in the size of the judiciary. With this increasing size, the judiciary’s diversity has also enlarged. The result has been that the rules of con- duct which were previously well known to a small, tight knit judiciary have become less intuitive to the now much larger, more diverse judiciary. This effect has been exacerbated by the fact that the tribunal judiciary has now been included in the general judicial system, side by side with the mainstream judiciary. Beyond the issue of the size of the judiciary there is a need to clarify the rules of judicial conduct.17 Particularly, there is a need to clarify the correct
15 The reference to the judicial oath is found in Chapter 1 of Australia’s Guide to Judicial Conduct, Paragraph 1.1; in Paragraph 2.2 of the UK Supreme Court Guide to Judicial Conduct; in the Guide to Judicial Conduct, England Judges’ Council, Forward and Paragraphs 2.2 and 2.3. 16 See Shimon Shetreet, Judges on Trial; A Study of the Appointment and Accountability of the English Judiciary, 34–36 (North Holland 1976). 17 For the need for written standards see paragraph 1.2, Judges’ Council Guide to Judicial Conduct (England).
IV Enforcement of Judicial Ethics
In England, the Constitutional Reform Act of 2005 transferred certain disci- plinary powers over judges from the Lord Chancellor to the Lord Chief Justice, who is now the head of the judiciary. The Lord Chancellor and the Lord Chief Justice are assisted in the implementation of the Guide to Judicial Conduct by the Office of Judicial Conduct, which was established following the Constitutional Reform Act of 2005. In Israel, one can observe a very negative effect from the Yoav Yizthak case,21 which declared the judicial code of ethics issued by Chief Justice Shamgar in 1993 to be legally invalid. This case sent the message that individual judges are able to make their own ethical rules. In addition, there have been matters involving a very lenient policy toward judges that violated ethical obligations.
18 Chapter 1, page 1. CJ Forward Guide to Judicial Conduct, page 1. 19 For theoretical considerations in connection with ethics of judges it is stated that judges are entitled to exercise rights of citizens, see paragraph 4.1 of the UK Supreme Court Guide to Judicial Conduct. As to the duty of disclosure, see paragraph 3.15 and 3.16 of the UK Supreme Court Guide to Judicial Conduct. 20 See eg Procola v. Luxemburg for a detailed analysis see Shimon Shetreet, The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges, 10 Chicago J. of International Law, pp. 275–332 (2009). 21 See Yoav Yizthak case HCJ 1622/00 Yitzhak v President Barak 54 (2) P D 54, See Shetreet, The Status of Judicial Code of Ethics, in Medina, Fassberg and Weisman, Eds. Festschrift in Honour of Prof Avigdor Levontin, (Sacher Institiute 2013).
Notable are the recent cases of Bilha Gilor, the President of the District Court of Haifa, and Judge Varda Alshech, of the District Court of Tel Aviv. Judge Gilor intervened in cases relating to her husband through reassigning a judge in her court, Judge Ginat, after ruling against a partner in her husband’s law firm. She thereby took the power to adjudicate a certain category of cases away from this judge. In another example, Judge Alshech unduly changed the protocol of the proceeding before her in order to better support a complaint she filed against a lawyer appearing before her. In both cases the judges were not dismissed even though the findings were clear regarding their wrongdoings. In contrast, in other matters judges were dismissed or otherwise acted against (such as in the case of Judge Hila Cohen, and Judge Osnat Laufer). This has given the appearance of injustice and unequal enforcement of judicial discipline being applied vis – à– vis one group of judges in a far less lenient manner than other judges. This in turn has adversely affected public confidence in the judiciary. In the case of Judge Gilor, instead of initiating discipline against the president Gilor, the complaining judge, Judge Ginat, who had been unduly re-assigned, was transferred to the same level court in Tel Aviv.
V Conclusion
In Conclusion, though there has been a shift from oral traditions to written codes of judicial ethics. One can make a good argument that the rules embod- ied in the codes are actually an expression of the pre-existing norms and there- fore legally binding rather than persuasive. However, there remains a need to bolster public confidence in the judiciary by applying the codes of ethics in a consistent and equitable fashion.
Part Six International Courts and Cross Country Issues
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chapter TWENTY-ONE Judicial Independence in the Context of International Investment Law
Guiguo Wang*
Judicial independence is regarded as “one of the fundamental values of the administration of justice,” which values include “procedural fairness, effi- ciency, accessibility and public confidence in the courts.”1 In order to realize such values, it is important that judges and courts function without interfer- ence of other bodies or individuals. At the same time, decisions of the judiciary may not be second guessed except through the established appeal system. As the legal systems of the members of the world community differ and so do their culture, history and stage of economic development, the degree of judi- cial independence may be dissimilar. Also, in a less interdependent world, judicial independence of nations may remain unaffected by other communi- ties, international or otherwise. In a highly globalized world of today, however, domestic norms are, through treaties, agreements and other instruments, internationalized into international norms which are, through implementa- tion of treaties and agreements, domesticated into national norms.2 In such processes, domestic laws, like antidumping and countervailing duties law, which were subject to the exclusive interpretation by national judges must be interpreted in accordance with international agreements. Otherwise, the judges may violate, on behalf of their country, international obligations. This has happened in international trade and investment.
* Chair Professor of Chinese and Comparative Law, City University of Hong Kong; Chairman of the National Committee (HK) and Titular Member of the International Academy of Comparative Law; Chairman of the Hong Kong wto Research Institute; Honorary Advisor to the Ombudsman of Hong Kong; Vice President of the Chinese Society of International Economic Law and an experienced arbitrator. 1 Shimon Shetreet, “Creating a Culture of Judicial Independence: the Practical Challenge and the Conceptual and Constitutional Infrastructure,” in Shimon Shetreet and Christopher Forsyth (ed.), The Culture of Judicial Independence, Matinus Nijihoff Publishers, 2012, p. 18. 2 Harold Hongju Koh refers this process as transnational legal substance and transnational legal process through which international law concepts are “domesticated or internalized into municipal law” and certain rules originated in a domestic legal system become part of international law. See Harold Hongju Koh, “Is There a ‘New’ New Haven School of International Law?,” The Yale Journal of International Law, Vol. 32:559, at 567.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_022
Insofar as international investment is concerned, it is now an important policy of all countries. In order to create a better environment for foreign investment and to compete with other countries for limited foreign capital and technologies, individual countries have tried nearly all means, including enter- ing into bilateral investment protection treaties3 and participating in multilat- eral mechanisms relating to protection of foreign investment,4 which provide protections to foreign investors. Through the operation of investment protection mechanism— implementation of bilateral investment treaties (“BITs”) and multilateral treaties—judiciaries of the host States are inevitably affected. In most cases, investor-State arbitration involves administrative measures of the host States. Recently, however, there also have been cases in which the actions or inactions of the judiciary of the host States were judged by arbitral tribunals. Thus the independence of judiciary has been called into question. This article, by look- ing into some of such investment arbitral awards, explores the issue of how and to what extent judicial independence may be affected through the opera- tion of international investment law, in particular investment arbitration.
I Saipem v. Bangladesh
In Saipem v. Bangladesh,5 the Claimant—a company incorporated in Italy, spe- cializing in oil and gas pipeline construction—entered into a contract with Petrobangla—a Bangladeshi state-owned enterprise to build a pipeline for
3 According to unctad, 2833 bilateral investment treaties (bits) had been concluded by the end of 2011. In 2010, a total of 54 new bits were concluded. See World Investment Report 2012, unctad, p. xx. At the end of 2010, the international investment agreements (iia) universe contained 6092 agreements, including 2807 bits, 2976 double taxation treaties and 309 “other IIAs.” Twenty of the 54 bits signed in 2010 were between developing countries and/or transi- tion economies, a trend possibly related to developing countries’ growing role as outward investors. World Investment Report 2011, unctad, p. 100. Beginning with the World Investment Report 2012, unctad no longer includes double taxation treaties among its universe of iias. 4 In this regard, the Convention on the Settlement of Investment Disputes Between States and Nationals of Other Countries (“ICSID Convention”) is most important in providing mecha- nisms for investor-State arbitration. Other multilateral investment treaties include the Energy Charter Treaty, the North American Free Trade Agreement and other regional free trade agreements. 5 Saipem S.p.A. v The People’s Republic of Bangladesh, icsid Case No.ARB/05/7, Decision on Jurisdiction, 21 March 2007 (hereinafter, “Saipem, Decision on Jurisdiction”), Award, 30 June 2009 (hereinafter, “Saipem, Award”).
6 Ibid, para. 36. 7 After the dispute was submitted to icsid, the Tribunal firstly issued a Decision on Jurisdiction on 21 March 2007 and then rendered the Final Award on 30 June 2009; see, supra note 5. 8 SaliniCostruttori S.F.A. and Italstrade S.P.A. v. Kingdom of Morocco, icsid Case No. ARB/00/4, Decision on Jurisdiction, 16 July 2001. 9 Saipem, Decision on Jurisdiction, para.102. 10 SociétéOuestAfricaine des BétonsIndustriels (soabi) v Senegal, icsid Case No. ARB/82/1, Award, 25 February 1988, 2 icsid Reports 190, at para. 219.
11 Saipem, Decision on Jurisdiction, supra note 5, para. 106. 12 Ibid., para. 109. 13 Id. 14 Ibid., para. 110.
…the fact that the BIT’s definition of investment used the word ‘property’ and not ‘assets’ as in other bilateral investment treaties implies a reference to Bangladeshi law. In support of this assertion, Bangladesh submitted that the word ‘property’ was chosen because it was a notion well known in Bangladesh, thus suggesting that the word ‘property must be interpreted according to its ordinary meaning in Bangladeshi law’.15
The Tribunal maintained that the interpretation of the icsid Convention and the bit should be governed by international law.16 This approach of interpreta- tion is consistent with the practice of investment arbitration, as such treaties are international instruments, they must be interpreted in accordance with international law principles. At the same time, where there is a requirement that investment be made in accordance with domestic laws, the domestic law provisions must be interpreted with national law principles in respect of inter- pretation. The result of this exercise will impact the definition of investment under treaties. In addition to the icsid Convention, the Tribunal’s jurisdiction is also restricted by the Bangladesh—Italy bit, Article 9 of which provides that:
(1) “Any disputes arising between a Contracting Party and the investors of the other, relating to compensation for expropriation, nationaliza- tion, requisition or similar measures including disputes relating to the amount of the relevant payments shall be settled amicably, as far as possible. (2) In the event that such a dispute cannot be settled amicably within six months of the date of a written application, the investor in question may submit the dispute, at his discretion for settlement to: (a) the Contracting Party’s Court, at all instances, having territorial jurisdiction; (b) an ad hoc Arbitration Tribunal, in accordance with the Arbitration Rules of the ‘UN Commission on International Trade Law’ (uncitral),
15 Saipem, Decision on Jurisdiction, supra note 5 para. 81. 16 Ibid., para. 78.
(c) the ‘International Centre for the Settlement of Investment Disputes’, for the application of the arbitration procedures provided by the icsid Convention of 18th March 1965 on the ‘Settlement of Investment Disputes between States and Nationals of other States’, whenever, or as soon as both Contracting Parties have validly acceded to it.”
Literally, the Bangladesh—Italy bit limits icsid’s jurisdiction only to issues relating to compensation for expropriation, nationalization, requisition or similar measures, including the amount of the relevant payments. This is quite similar to the earlier practices of the former Soviet Union and some Eastern European States, as well as China.17 A number of icsid tribunals had examined such provisions before, most of which upheld icsid jurisdiction. Those that denied jurisdiction did so mostly because the investor failed to prove that juris- diction was appropriate based on prima facie evidence.18 In Saipem, the Tribunal referred to the decision in Impregilo, i.e. “whether the facts as alleged by the Claimant, if established, are capable of coming within those provisions of the bit which have been invoked.”19 In other words, if the dispute alleged by the Claimant is within the scope of the bit, the Tribunal should first exercise its jurisdiction. The issue of whether the Respondent breached the agreement should then be examined at the merits stage. This approach inevitably involves different standards to be applied at the jurisdictional and merits stages. Inter national investment arbitration practices suggest that tribunals tend to apply a lower standard at the jurisdictional stage and a more demanding one in examining the respondent’s breach of the agreement.20 Notwithstanding the
17 For discussion on China’s practice in this regard, see Guiguo Wang, “China’s Practice in International Investment Law: From Participation to Leadership in the World Economy,” in Mahnoush H. Arsanjani, Jacob Katz Cogan, Robert D. Sloane and Siegfried Wiessner (ed.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman, Martinus Nijhoff Publishers (2011), pp. 845–890. 18 For example, see, Vladimir Berschader and MoïseBerschader v The Russian Federation, Stockholm Chamber of Commerce (scc), Award on 21 April 2006; and Ros Invest Co UK Ltd v The Russian Federation, Award on Jurisdiction October 2007. 19 Saipem, Decision on Jurisdiction, supra note 5, para.84. Regarding the Impregilo case, see, Impregilo S.p.A. v Islamic Republic of Pakistan, icsid Case No. ARB/03/3, Decision on Jurisdiction, 22 April 2005. As for the criteria for whether or not the prima facie evidence of jurisdiction is established, see UPS v. Canada, Decision on Jurisdiction, 22 November 2002, paras. 33–37; Siemens v Argentina, Decision on Jurisdiction, 3 August 2004, para. 180; Plama v Bulgaria, Decision on Jurisdiction, 8 February 2005, paras. 118–120 and 132; and Bayindir v Pakistan, Decision on Jurisdiction, 14 November 2005, paras. 185–200. 20 Saipem, Decision on Jurisdiction, supra note 5, paras. 85–86.
(1) “The investments to which this Agreement relates shall not be subject to any measure which might limit permanently or temporarily their joined rights of ownership, possession, control or enjoyment, save where spe- cifically provided by law and by judgments or orders issued by Courts or Tribunals having jurisdiction. (2) Investments of investors of one of the Contracting Parties shall not be directly or indirectly nationalized, expropriated, requisitioned or sub- jected to any measures having similar effects in the territory of the other Contracting Party, except for public purposes, or national interest, against immediate full and effective compensation, and on condition that these measures are taken on a non-discriminatory basis and in conformity with all legal provisions and procedures.”
The Tribunal was of the opinion that “the guarantee against expropriation of Article 5(2) only comes into play if (i) there is an expropriation and (ii) that expropriation is not justified by ‘public purposes’ or ‘national interest’, does not conform to ‘all legal provisions and procedures’, is not adequately compen- sated, or is discriminatory.”21 The Respondent did not claim in the hearing that the intervention by the local courts was driven by public purposes or the national interest, and it was common ground that no compensation was paid.22 Therefore, the Tribunal considered that it should first consider whether the Respondent had violated Article 5(1) of the bit. The Tribunal emphasized that the Respondent, as a Contracting Party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), was obliged to “recognize” the validity of the arbitration agreement.23 Based on that obligation, it is gen- erally acknowledged that the issuance of an anti-arbitration injunction can amount to a violation of the Convention. Technically, the courts of Bangladesh did not target the arbitration or the arbitration agreement in itself, but revoked
21 Saipem, Award, supra note 5, para. 125. 22 Ibid., para. 126. 23 Ibid., para. 166.
II White Industries v. India
White Industries25 case was decided less than two years after the Saipem case and in the same year as the GEA case. It also involved enforcement of a com- mercial arbitral award through an investment treaty. The Claimant in that case was a company constituted in accordance with the laws of Australia. In the 1970s–1980s, India decided to develop its coal resources. For that purpose, it set up a wholly State-owned company—Coal India, which in the name of its sub- sidiary—entered into a contract with the Claimant for the production of coal in India. Under the contract, the Claimant had an obligation to provide ser- vices related to the production of coal including supply of equipment and technical services. The contract also contained provisions for bonuses and penalties of the Claimant depending on its performance. A dispute occurred between the Claimant and Coal India: the Claimant argued that it was entitled to bonuses and Coal India contended that it was entitled to impose penalties. The two parties submitted their disputes to the International Chamber of Commerce for arbitration which awarded the Claimant more than four million Australian dollars.26 Soon thereafter, Coal India applied to an Indian court— the Calcutta High Court—to set aside the Award, which granted Coal India leave to apply and ordered the matter returnable.27 Thereafter, with the arbi- tral award at hand, the Claimant applied to the High Court at New Delhi for enforcing the award. Then there were a number of back and forth actions by the Claimant and Coal India in different Indian courts without substantial result. On 27 July 2010, more than seven years after it requested to enforce the icc award, the Claimant instituted investment arbitration against the Respondent—India—for violation of the Australia-India bit.28 The Tribunal of White Industries started its analysis by examining whether the Claimant was a covered investor and its transaction was a
24 Ibid., para. 167. 25 White Industries Australia Limited v. The Republic of India, uncitral Case, Final Award, 30 November 2011. 26 See ibid, paras. 3.2.1–3.2.33. 27 Ibid, para. 3.2.35. 28 Ibid, para. 2.1.1.
29 Article 1 (iii) of the Australia-India bit. Ibid, para. 7.3.1. 30 Ibid, para. 7.4.9. 31 Ibid, para. 7.4.19. 32 Ibid, para. 7.6.10. 33 Ibid, para. 10.4.23. The Tribunal stated that the conduct of the Indian courts did not amount to “a particularly serious shortcoming” or “egregious conduct that ‘shocks or at least surprises, a sense of judicial proprietary’.” Ibid. 34 Ibid, para. 10.4.12. 35 Ibid, para. 10.4.22. 36 Ibid, para. 10.3.14. 37 Ibid, para. 10.3.15.
In these circumstances, and even though we have decided that the nine years of proceedings in the set aside application do not amount to a denial of justice, the Tribunal has no difficulty in concluding the Indian judicial system’s inability to deal with White’s jurisdictional claim in over nine years, and the Supreme Court’s inability to hear White’s jurisdic- tional appeal for over five years amounts to undue delay and constitutes a breach of India’s voluntarily assumed obligation of providing White with ‘effective means’ of asserting claims and enforcing rights.38
The Tribunal then went on to analyze in detail whether there was any ground for the award to be denied recognition and enforcement. With the finding that there was no ground to refuse enforcement of the arbitral award “under the laws of India,”39 the White Industries Tribunal considered India to have failed to provide “effective means” of asserting claims.40 Again it did not explain what the threshold for provision of “effective means” was and the surrounding circumstances to be considered in established whether a system failed to pro- vide the “effective means.” It should also be noted that the Tribunal concluded that there was no ground under Indian law to refuse enforcement of the award. In other words, it put itself in the shoes of Indian judges at least in this aspect. One may wonder if the Tribunal was qualified to make judgments under Indian law.
III GEA v. Ukraine
A little more than a year later after the Saipem decision, the investment arbi- tration community was faced again the request to treat a commercial arbitral award as investment—GEA v. Ukraine.41 The Claimant, a company incorpo- rated under the laws of Germany, entered into a conversion contract with a company incorporated in Ukraine, a former State-owned entity—OJSC Oriana (“Oriana”). Per the conversion contract, the Claimant was to provide Oriana
38 Ibid, para. 11.4.19. 39 Ibid, para. 14.2.66. 40 Ibid, para. 14.4.4. 41 GEA Group Aktiengesellschaft v. Ukraine, icsid Case No. ARB/08/16, Award, 31 March 2011.
42 Ibid, para. 62. 43 Ibid, para. 7. 44 Ibid, para. 141. 45 Ibid, para. 149. Regarding the conversion contract, the Tribunal put it in the broader con- text as follows: it “was more than just goods against a tolling fee—it established a rela- tionship of ‘common interest’ whereby KCH (and, ultimately GEA) would, among other things, assist with delivery of logistics and pay for Ukrainian domestic freight, resolve customs issues, and supply the Oriana plant with necessary materials.” Ibid.
IV Appraisal
Notwithstanding the differences in other respects of the Saipem, White Industries and GEA, the three cases have one thing in common—they all involve enforcement of a commercial arbitral award. The question is whether investor-State dispute settlement mechanisms should be used for enforcing de facto commercial arbitral awards. One notes that investment arbitration and commercial arbitration are two distinctive mechanisms for resolving disputes. Commercial arbitration may deal with any dispute arising from commercial transactions. It is often the case that in such circumstances, the underlying transaction is a commercial contract with either a private party or a State, which may include sale and purchase contracts, joint venture contracts, turnkey contracts, construction, management, production, concession, revenue-sharing and other similar contracts. The essential legal basis for
46 Ibid, para. 161 (emphasis original). 47 Ibid, para. 162. 48 The GEA Tribunal considered that the Saipem Tribunal under one heading said the icc award to be part of the investment, under another heading not an investment and then under still another heading, not necessary to decide whether it was part of the invest- ment. See ibid, para. 163.
49 For discussion on the relationship between a foreign investor and a host State, see Jan Paulsson, “Arbitration Without Privity,” 10 icsid Review—Foreign Investment Law Journal 232–257 (1995). 50 For discussion on the umbrella clause, see Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law, Oxford University Press (2008), pp. 153–162; also Jarrod Wong, “Umbrella Clauses in Bilateral Investment: Of Breaches of Contract, Treaty Violations, and the Divide between Developing and Developed Countries in Foreign Investment Disputes,” George Mason Law Review, Vol. 14, No. 1 (2006), pp. 137–179. 51 For the full text of the Agreement between Japan and the Republic of Singapore for a New-Age Economic Partnership (“Japan-Singapore EPA”) (2002), see http://www.mofa .go.jp/region/asia-paci/singapore/jsepa-1.pdf.
(2004) also provides in Article 1: “investment does not mean, (X) claims to money that arise solely from (i) commercial contracts for the sale of goods or services by a national or enterprise in the territory of a Party to an enterprise in the territory of the other Party […].” The object of provisions like this is to remove any doubt on the definition of investment. One of the features of contemporary investment arbitration, as illustrated in the three cases discussed earlier, is that it impacts on the decisions of judi- ciaries, in other words, judicial independence of the host States. Such effects on judicial independence may be direct or indirect. Where an investment arbi- tration tribunal excessively interprets treaty provisions involving jurisdictional issues, it may have taken away opportunities of judiciaries of host States in terms of performing their functions of interpreting local laws and treaty provi- sions. In Saipem, the Claimant also argued that the Contract was an invest- ment as defined in the bit and that “the rights accruing from the ICC Award fall squarely within the notion of ‘credit for sums of money […] connected with investments’ set out in…the BIT.”52 The Respondent contended that these words would normally include bank deposits or book debts on a running account. The Tribunal was of the opinion that “[t]his may well be so. However, in their ordinary meaning, the words ‘credit for sums of money’ also cover rights under an award ordering a party to pay an amount of money: the prevail- ing party undoubtedly has a credit for a sum of money in the amount of the award.”53 This holding did not leave the matter with no ambiguities. The rea- son for an arbitral award to crystallize the rights and obligations of the parties is because of the underlying transaction qualified as an investment. On this basis, only when the underlying transaction constitutes an investment, could an award representing “a credit for a sum of money” be treated as an invest- ment under the bit. Without the underlying transaction being a qualified investment, the arbitral award may not be treated as representing the rights of a party. Without such restrictions, an ordinary commercial dispute which is not qualified as an investment may become an investment, after an arbitral tribunal delivers an award, which represents a claim to a sum of money or credit for sums of money. There is no evidence that the founding fathers of the icsid Convention intended to make such awards investments. In fact, even if the Claimant’s undertaking in the building project consti- tuted an investment, it still remained to prove that the dispute arose “directly out of” the investment. During the hearings, the Respondent objected to the icsid Tribunal’s jurisdiction on the ground that, among other things, the
52 Saipem, Decision on Jurisdiction supra note 5, para. 125. 53 Ibid. para. 126.
54 Ibid., para. 76. 55 Ibid., para. 95. 56 Ibid., para. 127. 57 Ibid., para. 115. 58 Ibid., para. 160.
Bangladeshi courts to revoke the results of the arbitration. This raised con- cerns that Petrobangla might have colluded with the courts. In the view of the Saipem tribunal, as the icc award did not constitute an exception under Article 5 of the New York Convention, the Bangladeshi courts had an obligation to enforce it but they did not do so and therefore “exercised their supervisory jurisdiction for an end which was different from that for which it was insti- tuted and thus violated the internationally accepted principle of prohibition of abuse of rights.”59 The Saipem Tribunal also held that the non-enforcement by the Bangladeshi courts of the icc award constituted an instance of “measures having similar effects” with expropriation within the meaning of the bit—indirect expropriation—which resulted in substantially depriving the Claimant of the benefit of the icc Award.60 Thus a non-enforcement deci- sion by local courts was elevated to a breach of treaty obligation relating to expropriation, which was subject to the judgment of investment arbitration tribunals. Albeit whether commercial arbitration awards should be treated as invest- ments is new to everybody, investment arbitral tribunals have no hesitation to cast views on decisions of domestic courts. As a result, judicial independence is unavoidably affected. Unfortunately, no treaties—bilateral or multilateral— contain provisions on such matters and thus cannot offer much help. Yet, in exercising their arbitration authorities, investment tribunals have not con- ducted detailed and persuasive analysis. The Saipem Tribunal’s crystallization theory was novel. Whilst bits and Free Trade Agreements provide very broad definition of investment, there is danger of misuse—investment dispute set- tlement mechanism being abused for enforcement of commercial arbitral awards. The GEA approach to separate commercial arbitral awards from invest- ment—articulating an investment in and of itself having an objective meaning is helpful in safeguarding the distinctiveness of the two dispute settlement sys- tems—investment and commerce. Yet, it was also subject to disagreement. White Industries, for instance, the Tribunal simply regarded the decision of the GEA case as obiter dicta and concluded that it represented “an incorrect depar- ture from the developing jurisprudence on the treatment of arbitral awards.”61 Yet, by the time the White Industries Tribunal rendered its decision, there had
59 Ibid., para. 161. 60 Ibid., para. 129. The Tribunal also pointed out that its decision was based on the fact that Petrobangla did not have any assets overseas and therefore Saipem could not seek enforcement of the icc Award in other countries in accordance with the New York Convention; ibid., para. 130. 61 White Industries v. India, Award, supra note 25, paras. 7.6.7–7.6.8.
62 Mondev International v. United States, icsid Case No. ARB(AF)/99/2, Award, 11 October 2002. 63 Chevron Corporation (USA) and Texaco Petroleum Company (USA) v. Ecuador, uncitral Arbitration, Final Award, 31 August 2011. 64 Frontier Petroleum Services Ltd. v. The Czech Republic, uncitral, Final Award, 12 November 2010. 65 White Industries v. India, Award, supra note 25, para. 7.6.8. 66 As a matter of fact, some scholars have started to challenge the investor-State arbitration mechanism: for example, Van Harten argued that “consensual arbitration…is simply inad- equate as a substitute for the public courts. The courts [and only the courts] should have the final authority to interpret the law that binds sovereign power and to stipulate the appropriate remedies for regulatory measures that lead to business loss.” He also recom- mended the creation of an international investment court of tenured judges to provide an open, accountable, and genuinely independent system to resolve investment disputes. See Gus van Harten, Investment Treaty Arbitration and Public Law, Oxford University Press (2007).
Wayne McCormack*,1
The essence of the Rule of Law is ordering affairs according to principle rather than prerogative. Thus the essence of judging is decision-making dominated by principle rather than preference. It would be foolhardy to expect any human to exclude preference entirely from her decision processes, but the dominant concern when confronted with a problem or a dispute must be principle gleaned from some recognised authoritative source, not the judge’s own pref- erences or national identity. Therein lies a challenge for judges of the many proliferating international courts.2 As others have pointed out, the initial assumption behind the creation of international courts was that judges would be selected by nationality and that balance in the court would be achieved by balancing the nationalities of the panels. If the world is to take the Rule of Law seriously, it is time to abandon that assumption in favor of professional standards by which each judge is assessed according to his or her performance on the basis of principle above national preference.3
I Importance of the Rule of Law
It is not possible to have a functioning economic system without adherence to the Rule of Law. Actors in the system must know whether they can expect their
* E.W. Thode Professor of Law at the University of Utah. He has written widely in constitu- tional law and international criminal law with emphasis on counter-terrorism. 1 Third-year law student and Quinney Fellow Lauren Hansen contributed valuable research assistance, including the chart in the Appendix and the examples of alleged national bias. My thanks to her and to the S.J. Quinney Foundation that made her work possible. 2 The prospect of actual bias or conflict of interest have been addressed in the procedures of most international courts. See Joseph R. Brubaker, “The Judge Who Knew Too Much: Issue Conflicts in International Adjudication” 26 Berkeley J. Int’l L. 111 (2008). 3 Tom Dannenbaum, “Nationality and the International Judge: The Nationalist Presumption Governing the International Judiciary and Why it Must Be Reversed,” 45 Cornell Int’l L.J. 77 (2012).
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4 Fuller presented eight propositions by which to assure the failure of a system of law: 1. The lack of rules or law, which leads to ad-hoc and inconsistent adjudication. 2. Failure to publicize or make known the rules of law. 3. Unclear or obscure legislation that is impossible to understand. 4. Retroactive legislation. 5. Contradictions in the law. 6. Demands that are beyond the power of the subjects and the ruled. 7. Unstable legislation (ex. daily revisions of laws). 8. Divergence between adjudication/administration and legislation. 5 http://www.transparency.org/whoweare/organisation
Let’s pick apart that concept of corruption. The obvious low-level of corrup- tion is exemplified by the day when the police officer stopped me on my first day in Chicago at age 25 for driving my rental truck down a street which he referred to as a “boulevard.” As he continued to insist that it was “illegal to drive a truck on the boulevard,” it slowly dawned on me that I was expected to hand over a $20 bill in lieu of receiving a traffic citation. In turn, it seemed to dawn on him that this poor college grad had no $20 bill to offer so he sent me on my way with very little hard feelings. This scenario is repeated over and over in many countries when police making a routine traffic stop have no intention of putting the driver into the legal system but simply expect a fee for allowing the driver to proceed on his or her business. What might be considered the mid-level of corruption takes that basic trans- action and escalates it to somewhat more dramatic levels. I recently was told of a mother in Russia who paid to have her son exempted from military service. This was a common practice in the U.S. during the Civil War when Union citi- zens could purchase exemption from conscription. Ironically, if written into law, this would not be labeled corruption but simply an unfairness in the law itself on behalf of the affluent. Nevertheless, when the societal norm is that “requirements” are simply statements of occasions for fees to low—or mid-level officials, the society no longer has social cohesion. That is exactly the situation in many nations of the world today where graft (bribery) is just a way of life. The high-end brand of corruption can be either blatant thievery or subtle influence peddling. Afghan officials who have spirited billions of dollars in U.S. aid out of the country to secret bank accounts in islands around the world have engaged in blatant corruption. They may have obtained that money through a series of “cutouts” in which the aid funds went to some apparently worthwhile enterprise, such as building a school or hospital, but the payments for goods, services, and even government permits siphoned off a substantial portion of the funds before any bricks and mortar hit the ground—if they ever did. The U.S. has put considerable effort into trying to trace these funds to forestall their disappearance, largely to no avail. I have spoken with U.S. officials who would love to have more clout to investigate and bring these political figures to task, but the impediments are both logistical (manpower, culture, technology) and political (protection of some critical figures in corrupt regimes). The message here is that outright thievery is not likely to end until the donor governments simply shut off the faucet. The subtle influence-peddling form of corruption is embedded in the reali- ties of political systems including even widely respected systems such as the U.S. Take, for example, Dick Cheney’s ties to Halliburton. Was he directly paid for funneling contracts to his old buddies? Surely not. But were there favors
II The Relation of Corruption to Judging
As stated earlier, the essence of judging is making decisions predominantly on principle rather than preference. Again, a judge can hardly be expected to exclude all feelings of political preference from her decisions, but the domi- nant motivation of any decision should be principle. The principles of deci- sion, consistent with the Fuller notion of law, must be visible and uniformly applied. No system that does not emphasise principle over preference is going to survive as part of the Rule of Law.
A The Challenge
So a judge operating in a corrupt regime has a formidable challenge. Take an easy example from what we found in 2007 in Afghanistan. A judge’s salary was about $60 per month while the cost of living for a family of four in Kabul was $500 per month. Do the math and you realise that the judicial position was just
6 “Halliburton gave Dick Cheney a $34 million payout when he left the company to join the presidential ticket,” Tampa Bay Time PolitiFact, http://www.politifact.com/truth-o-meter/ statements/2010/may/24/chris-matthews/chris-matthews-says-cheney-got-34-million -payday-h/ (last view 11 Sept., 2012).
1. method of appointment 2. prospects and processes for advancement 3. compensation protection 4. review of performance
B As Applied to International Courts
At the international level, methods of appointment have typically proceeded with the assumption of national affiliation, which could lead to the assumption that the judge will be more influenced by national preference than by principle. Prospects for advancement and protection for compensation have not been particularly problematic at the international level except to the extent that a judge might hope for special consideration back home in return for a favorable ruling on a case in which the home government has an interest. That leaves the system of review, which takes place primarily through the critiques of fellow judges in opinions and through the evaluations of commen- tators, a system that is familiar to Anglo-American commentators who rou- tinely critique the decisions of their judiciary. The chart set out as an appendix to this paper looks at several factors that may be taken into consideration when analyzing judicial impartiality in the international sphere. This chart takes into consideration the nationalistic focus of international, regional, and hybrid courts.
C Examples of Judicial Bias
Several empirical studies have looked into judicial impartiality and national bias in international courts. A study conducted by Il Ro Suh in 1969 showed
7 See, e.g., International Association of Judicial Independence and World Peace (Mt. Scopus Standards), http://www.jiwp.org/#!mt-scopus-standards-2007-2012/c17lh.
1 Nicaragua v. United States of America In 1986 the icj issued its opinion regarding a suit that had been brought by Nicaragua against the United States for assistance the latter provided to contras within Nicaragua. While a majority of the Court found in favor of Nicaragua, Judge Stephen Schwebel of the United States dissented against most of the clauses. Judge Schwebel repeated many of the same arguments that had been made by the United States before the Court in his dissent, stating that the United States had acted lawfully in its support of the contras as it was acting through collective self-defense on behalf of El Salvador.11 In his introduction, Judge Schwebel offered a scathing criticism of the majority decision, stating that:
To say that I dissent from the Court’s Judgment is to understate the depth of my differences with it…in my view the Judgment misperceives and misconstrues essential facts—not so much the facts concerning the actions of the United States of which Nicaragua complains as the facts concerning the actions of Nicaragua of which the United States
8 Il Ro Suh, “Voting Behavior of National Judges in International Courts,” 63 Am. J. Int’l L. 224, 228 (1969). 9 Eric A. Posner & Miguel de Figueiredo, “Is the International Court of Justice Politically Biased?” 18 (Chicago John M. Olin Law & Economics, Working Paper No. 234, 2004). 10 Erik Voeten, “The Impartiality of International Judges: Evidence from the European Court of Human Rights,” 102 Am. Pol. Science Rev. 417, 430 (2008). 11 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 86 (June 27) (dissenting opinion of Judge Schwebel).
complains. It misconceives and misapplies the law—not in all respects, on some of which the whole Court is agreed, but in paramount respects: particularly in its interpretation of what is an “armed attack” within the meaning of the United Nations Charter and customary international law; in its appearing to justify foreign intervention in furtherance of “the pro- cess of decolonization;” and in nearly all of its holdings as to which Party to this case has acted in violation of its international responsibilities and which, because it has acted defensively, has not.12
Judge Schwebel’s dissent illustrates a case where a judge clearly adopted and advocated the political and legal positions of his home nation. However, this case also illustrated an instance of bloc voting between close allies, with the United Kingdom and Japan both joining in with most of Judge Schwebel’s dissent.
2 Malaysia/Singapore In July of 2003, the governments of Malaysia and Singapore notified the icj that the nations had agreed to submit an application to the court to determine whether three groups of islands belonged to one nation or the other. As neither party had a permanent judge sitting on the bench, both nations were allowed to elect ad hoc judges for the purposes of these proceedings. Both nations claimed sovereignty over the disputed territory, but in a three-part decision the Court determined that sovereignty of some of the islands belonged to Singapore while Malaysia had claim to the others.13 The Malaysian judge voted against the clause recognizing Singapore’s claims, while the judge from Singapore voted against the clause recognizing Malaysia’s claims. This example of ad hoc judges showing national bias highlights the concern over impartiality of ad hoc judges, and in general, of international courts that place an emphasis upon nationalism in statutory framework.
3 Cambodia War Crimes Tribunal The Extraordinary Chambers in the Courts of Cambodia (eccc)14 was orga- nized under agreement between the UN and Cambodia as an independent court using a mixture of foreign personnel embedded with Cambodian staff and judges. The special court is charged with investigating and prosecuting
12 Id. at ¶1. 13 Case Concerning Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) 2008 I.C.J. 12 (May 23). 14 http://www.eccc.gov.kh/en.
III The Proposed Solutions
Dannenbaum has proposed the elimination of national representation and in particular the abolition of ad hoc judges because both of these procedures reinforce the notion of nationalist partisanship. The icj addresses the issue this way:
The right of an elected judge having the nationality of one of the parties in a case to sit in the case has not been seriously questioned by legal scholars. It is clear simply from the result of the votes taken by the Court and from the separate and dissenting opinions submitted that such judges have often voted in disaccord with the submissions of their own country. The institution of the judge ad hoc, on the other hand, has not received unanimous support. While the Inter-Allied Committee of 1943 argued that “[c]ountries will not in fact feel full confidence in the deci- sion of the Court in a case in which they are concerned if the Court includes no judge of their own nationality, particularly if it includes a judge of the nationality of the other party”, certain members of the Sixth Committee of the General Assembly of the United Nations expressed the view, during the discussions between 1970 and 1974 on the role of the Court, “that the institution, which was a survival of the old arbitral proce- dures, was justified only by the novel character of the international judi- cial jurisdiction and would no doubt disappear as such jurisdiction became more firmly established”. Nevertheless, numerous writers take the view that it is useful for the Court to have participating in its delibera- tions a person more familiar with the views of one of the parties than the elected judges may sometimes be.16
15 “UN voices concern as second judge resigns from Cambodia genocide court,” UN News Centre, http://www.un.org/apps/news/story.asp?NewsID=41578&Cr=Cambodia&Cr1=# .UE-yJbJlSi0 (19 March 2012). 16 “Judges ad hoc,” The Int’l Ct. of Justice, http://www.icj-cij.org/court/index.php?p1=1&p2= (last visited 9 September 2012).
Dannenbaum goes on to point out other solutions that have been offered: Shelton, for example, argues for the formation of a professional association of international judges and echoes Reisman’s earlier call for a code of interna- tional judicial ethics. Abi-Saab advocates the appointment of judges by a pro- fessional body rather than a political assembly or council. Those seeking to improve international judging should follow these examples by focusing on augmenting the professionalism of the international judiciary and implement- ing independence-bolstering mechanisms. In fact most of these suggestions have already been implemented. But the most important element in judicial impartiality is creation of a culture of judg- ing, a culture that emphasizes principle over preference and calls judges to task when they fail to conform to the culture. The proposed Standards promulgated by the International Association of Judicial Independence and World Peace (the so-called Mt. Scopus Standards) address many aspects of the independence of International Judges.17 In par- ticular, those Standards call for judges to maintain their judicial role without becoming advocates of their home nation.18 Although the Standards allow for choosing judges on the basis of geographic affiliation, the professional qualifi- cations should be the dominant factor in selection.19 In addition, the Standards generally repeat all the usual limitations on judges, such as recusal from cases in which they have prior interest or experience, protection for tenure and free- dom of expression, and general mandates for impartiality. The Mt. Scopus Standards, however, do allow for the appointment of ad hoc judges from nations not otherwise represented on the tribunal. The Standards merely insist that the ad hoc judge comply with the ordinary rules of impartiality.20 It would certainly be possible for the Standards to adopt the
17 International Association of Judicial Independence and World Peace (Mt. Scopus Standards), http://www.jiwp.org/#!mt-scopus-standards-2007-2012/c17lh. 18 9.5: All Judges of international courts and tribunals shall adhere to the principle that judges who are nationals of a member state of the organisation establishing the court or tribunal when exercising judicial discretion and function shall engage in fair and inde- pendent adjudication of the case and by no means in representation of the member state. 19 10.2: While procedures for nomination, election and appointment should consider fair representation of different geographic regions and the principal legal systems, as appro- priate, as well as of female and male judges, appropriate personal and professional quali- fications must be the overriding consideration in the nomination, election and appointment of judges. 20 26.1: An ad hoc judge in an international court or tribunal must act conscientiously and independently in the adjudication of the case to which that judge was assigned to sit. 26.2: The restrictions and provisions applicable to full-time international judges regarding past
Dannenbaum position of eliminating national representation, particularly in the role of ad hoc judges. The International Commission of Jurists seems the obvious place to turn for support and promotion of judicial impartiality. The icj publications thus far have concentrated on human rights and the protection of judges within their national systems. This would be an excellent organization to promulgate an international code of ethics for judges. The American Bar Association Model Code of Judicial Conduct is based on four simple propositions:
CANON 1 A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appear- ance of impropriety. CANON 2 A judge shall perform the duties of judicial office impartially, compe- tently, and diligently. CANON 3 A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office. CANON 4 A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the integrity, or impartiality of the judiciary.
These four canons are then developed further with “rules” and “commentary” regarding each topic. For our purposes, the most important rule regarding impartiality is probably the one dealing with external influences:
RULE 2.4 External Influences on Judicial Conduct (A) A judge shall not be swayed by public clamor or fear of criticism. (B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment. (C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.
links, extra-judicial activities, post-service limitations, and security of tenure shall not apply to ad hoc judges.
In the Soviet system, “telephone justice” meant that the judge merely handed down decisions as they were dictated by a party spokesperson (apparatchik). There are some indications that little has changed in the anarchical days of post-Soviet privatization. Long before the sentence was handed down in the “Pussy Riot” trial, the media had already learned that the sentence would be two years—the media reports did not know whether this sentence was coming from the Metropolitan of the Orthodox Church or from the government, but the message had been received and was implemented. Even President Medvedev during his term acknowledged the lack of judicial independence in Russia:
“As before, we must take all necessary means to strengthen the indepen- dence of judges,” Medvedev said, speaking at a conference on developing the judicial system. “It would seem that existing legislation should pro- vide for it. However, it goes without saying that pressure and influence occurs, that administrative leverage is applied, that direct bribery is often used.”21
And the Constitutional Court of Russia has been at the forefront of critiques over judicial independence:
Two justices on Russia’s Constitutional Court renounced their positions Wednesday, on the recommendations of their fellow justices, after pub- licly criticizing the nation’s lack of judicial independence. Senior justice Anatoly Kononov, whose term of office was to expire in 2017, will resign from the Constitutional Court at the end of this month. Justice Vladimir Yaroslavtsev will remain on the court, but has stepped down from his position on the country’s Council of Judges. In August, Yaroslavtsev gave an interview to Spanish newspaper El Pais, in which he criticized Russia’s judicial system, citing its lack of independence and corruption. Yaroslavtsev claimed the legislative branch is “paralyzed” and called the government “authoritarian.” Kononov, who has spoken-out about judi- ciary problems in the past, publicly defended Yaroslavtsev’s comments. In October, both justices were accused of undermining judicial authority by breaching the Judges’ Ethics Code and the Law on the Status of Judges.22
21 “Medvedev: No Independent Judiciary in Russia,” The Other Russia (15 July 2008), http:// www.theotherrussia.org/2008/07/15/medvedev-no-independent-judiciary-in-russia/. 22 “Russia judges resign after criticizing lack of judicial independence,” Jurist (3 December 2009), http://jurist.org/paperchase/2009/12/russia-judges-resign-after-criticizing.php.
But these are internal problems of a nation struggling to enter the Rule of Law, a phenomenon being played out in any number of places today. What can we learn from these experiences about the problem of impartiality in suprana- tional courts? I think the principal lesson is that pressure on judges will exist, and it is up to the legal academy to find the mechanisms of protecting judicial independence. A central component of creating a culture of judging is critique by the acad- emy. Courageous Russian law faculty are speaking out on the issues and it is up to the rest of us to support them. Again, that is within the internal affairs of Russia but a matter of concern to the entire Rule of Law community. With regard to international courts, it is the commentary of people such as those in this room who can let both judges and their home politicians know that acting from national preference is not judging. Perhaps a more formal complaint system within the icj would be appropri- ate. Reprimands and censures are very effective at the local level in the U.S. where state judicial commissions routinely review the decisions of judges for bias or response to external influence.23
• SUMMARY The International Commission of Jurists has gone a long way in developing a culture of judging. A more formal “Code of Judicial Ethics” would be a welcome additional step. • Academic and professional commentators need to take observation of international courts more seriously and apply universal standards of impar- tiality to critique of judicial decisions. • Perhaps the icj should create a formal complaint process to address charges of nationalism within international tribunals.
23 See, e.g., In re Inquiry Concerning a Judge (Young), 1999 UT 81 (1999) (public reprimand for ex parte communication).
Court Number of Members/Method of Term Limits Compensation Review & Removal Focus on National Representation Appointment
International 15 judges elected by the UN General 9-year term, fixed annual No Member of the Court can be dismissed The Court may not include more than one Court of Assembly and Security Council. A 5 members salary unless, in the unanimous opinion of the national of the same State and must reflect Justice candidate must receive an absolute elected every (US$166,596) other Members, he/she no longer fulfills the regions as follows: Africa 3, Latin America and majority of the votes in both bodies. 3 years plus expenses, required conditions. This has in fact never the Caribbean 2, Asia 3, Western Europe and All States parties to the Statute of the pension at 50% happened. other States 5, Eastern Europe 2. Although Court have the right to propose of the annual there is no entitlement to membership on the candidates. base salary part of any country, the Court has always A party which does not have a judge included judges from the permanent members of its nationality on the Bench may of the Security Council. choose a person to sit as judge ad hoc in that specific case.
International 18 judges elected by the Assembly of 9-year term Fixed annual Assignment of judges to Divisions is made All judges must be nationals to parties of the Criminal States Parties. The Assembly of States salary of on the basis of the nature of the functions Rome Statute, and no two judges may be Court Parties is required to “take into $180,000 each Division performs and the qualifica- nationals of the same state. Each regional account the need for the representa- tions and experience of the judge. A judge group of the United Nations has at least two tion of the principal legal systems of may be disqualified from “any case in which judges. It is possible that a judge may be the world, equitable geographical his or her impartiality might reasonably be recessed from overseeing a case if it is representation and a fair representa- doubted on any ground,” and a judge may determined that there may be a conflict of tion of female and male judges. They be removed from office if he or she “is found national interests. shall take into account the need to to have committed serious misconduct or a include judges with legal expertise on serious breach of his or her duties” or is specific issues, including, but not unable to exercise his or her functions. limited to, violence against women Disqualification of a judge from a particular and children.” case is decided by an absolute majority of the other judges, while removal from office requires a two-thirds majority of the 18 judges sitting on the icc and a two-thirds majority of the Assembly.
International 16 permanent judges and 9 ad litem 4-year Fixed annual A Judge may not sit on a trial or appeal in A state cannot propose two candidates of the Criminal judges. term—eli- salary consisting any case in which the Judge has a personal same nationality for the position of permanent Tribunal for UN member and observer states each gible for of a base salary interest or concerning which the Judge has judge. The nominations take into consider- the former submit up to two nominees of re-election. (US$166,596) or has had any association which might ation the adequate representation of the Yugoslav different nationalities; Security plus expenses. affect his or her impartiality. principal legal systems of the world. Republic Council selects from 28 to 42 nominees; General Assembly then elects 14 judges from that list.
Court Number of Members/Method of Term Limits Compensation Review & Removal Focus on National Representation Appointment
International 15 judges elected by the UN General 9-year term, fixed annual No Member of the Court can be dismissed The Court may not include more than one Court of Assembly and Security Council. A 5 members salary unless, in the unanimous opinion of the national of the same State and must reflect Justice candidate must receive an absolute elected every (US$166,596) other Members, he/she no longer fulfills the regions as follows: Africa 3, Latin America and majority of the votes in both bodies. 3 years plus expenses, required conditions. This has in fact never the Caribbean 2, Asia 3, Western Europe and All States parties to the Statute of the pension at 50% happened. other States 5, Eastern Europe 2. Although Court have the right to propose of the annual there is no entitlement to membership on the candidates. base salary part of any country, the Court has always A party which does not have a judge included judges from the permanent members of its nationality on the Bench may of the Security Council. choose a person to sit as judge ad hoc in that specific case.
International 18 judges elected by the Assembly of 9-year term Fixed annual Assignment of judges to Divisions is made All judges must be nationals to parties of the Criminal States Parties. The Assembly of States salary of on the basis of the nature of the functions Rome Statute, and no two judges may be Court Parties is required to “take into $180,000 each Division performs and the qualifica- nationals of the same state. Each regional account the need for the representa- tions and experience of the judge. A judge group of the United Nations has at least two tion of the principal legal systems of may be disqualified from “any case in which judges. It is possible that a judge may be the world, equitable geographical his or her impartiality might reasonably be recessed from overseeing a case if it is representation and a fair representa- doubted on any ground,” and a judge may determined that there may be a conflict of tion of female and male judges. They be removed from office if he or she “is found national interests. shall take into account the need to to have committed serious misconduct or a include judges with legal expertise on serious breach of his or her duties” or is specific issues, including, but not unable to exercise his or her functions. limited to, violence against women Disqualification of a judge from a particular and children.” case is decided by an absolute majority of the other judges, while removal from office requires a two-thirds majority of the 18 judges sitting on the icc and a two-thirds majority of the Assembly.
International 16 permanent judges and 9 ad litem 4-year Fixed annual A Judge may not sit on a trial or appeal in A state cannot propose two candidates of the Criminal judges. term—eli- salary consisting any case in which the Judge has a personal same nationality for the position of permanent Tribunal for UN member and observer states each gible for of a base salary interest or concerning which the Judge has judge. The nominations take into consider- the former submit up to two nominees of re-election. (US$166,596) or has had any association which might ation the adequate representation of the Yugoslav different nationalities; Security plus expenses. affect his or her impartiality. principal legal systems of the world. Republic Council selects from 28 to 42 nominees; General Assembly then elects 14 judges from that list.
Court Number of Members/Method of Term Limits Compensation Review & Removal Focus on National Representation Appointment
Each Trial Chamber is composed of On a motion for recusal, the President may three permanent judges and a appoint a panel of three Judges drawn from maximum of six ad litem judges. Ad other Chambers to report to him its litem judges are appointed by the UN decision on the merits of the application. If Secretary-General at the request of the decision is to uphold the application, the President of the Tribunal to sit on the President will assign another Judge to one or more specific trials. sit in the place of the Judge in question. Three judges are assigned to hear each case, and at least one judge per case must be a permanent judge. Trial Chamber may be divided into sections of three judges each, composed of both permanent and ad litem judges. The Appeals Chamber consists of seven permanent Judges, five of whom are permanent judges of the icty and two of whom are permanent judges of the International Criminal Tribunal for Rwanda (ictr). These seven judges also constitute the Appeals Chamber of the ictr. Each appeal is heard and decided by a bench of five judges of the Appeals Chamber.
International 16 judges in four chambers (3 trials 4-year Annual salary same as icty same as icty Criminal and 1 appeal) plus 9 ad litem terms—eli- consisting of a Tribunal for judges—11 of the permanent judges gible for base salary Rwanda elected by the General Assembly from re-election (US $166,596) a list submitted by the Security Council and post adjust- Appeals Chamber consists of 5 ment, with a permanent judges of the ictr and 2 special supple- permanent judges of the icty. These mentary allow- seven judges also constitute the ance of Appeals Chamber of the icty. Each US $15,000 for appeal is heard and decided by a bench the President. of five judges of the Appeals Chamber.
Court Number of Members/Method of Term Limits Compensation Review & Removal Focus on National Representation Appointment
Each Trial Chamber is composed of On a motion for recusal, the President may three permanent judges and a appoint a panel of three Judges drawn from maximum of six ad litem judges. Ad other Chambers to report to him its litem judges are appointed by the UN decision on the merits of the application. If Secretary-General at the request of the decision is to uphold the application, the President of the Tribunal to sit on the President will assign another Judge to one or more specific trials. sit in the place of the Judge in question. Three judges are assigned to hear each case, and at least one judge per case must be a permanent judge. Trial Chamber may be divided into sections of three judges each, composed of both permanent and ad litem judges. The Appeals Chamber consists of seven permanent Judges, five of whom are permanent judges of the icty and two of whom are permanent judges of the International Criminal Tribunal for Rwanda (ictr). These seven judges also constitute the Appeals Chamber of the ictr. Each appeal is heard and decided by a bench of five judges of the Appeals Chamber.
International 16 judges in four chambers (3 trials 4-year Annual salary same as icty same as icty Criminal and 1 appeal) plus 9 ad litem terms—eli- consisting of a Tribunal for judges—11 of the permanent judges gible for base salary Rwanda elected by the General Assembly from re-election (US $166,596) a list submitted by the Security Council and post adjust- Appeals Chamber consists of 5 ment, with a permanent judges of the ictr and 2 special supple- permanent judges of the icty. These mentary allow- seven judges also constitute the ance of Appeals Chamber of the icty. Each US $15,000 for appeal is heard and decided by a bench the President. of five judges of the Appeals Chamber.
Court Number of Members/Method of Term Limits Compensation Review & Removal Focus on National Representation Appointment
European 27 Judges (one per member country) 6 year term Approximately Removal by the unanimous opinion of the Each member state represented by one Court of and eight Advocates General. The renewable— £215,000. Judges and Advocates General of the Court national on the ecj. Justice Judges and Advocates General are half of the of Justice, if judge no longer fulfills the appointed by common accord of the court requisite conditions or meets the obliga- governments of the Member States re-elected tions arising from his office. after consultation of a panel every three responsible for giving an opinion on years. prospective candidates’ suitability to perform the duties concerned. The Advocates General assist the Court. They are responsible for presenting, with complete impartial- ity and independence, an “opinion” in the cases assigned to them. The Court may sit as a full court, in a Grand Chamber of 13 Judges or in Chambers of three or five Judges.
European The number of full-time judges sitting Non- Annual salary of Judges not allowed to participate in activity National judges cannot sit in a single-judge Court of in the echr is equal to that of the renewable €208,776 that may compromise the echr’s indepen- formation. Court always includes the national Human Rights contracting states to the European 9-year term. dence. Judges can only be dismissed from judge when it hears cases as a seven-judge Convention on Human Rights office if the other judges decide by a Chamber or a seventeen-judge Grand (currently 47 members). Judges are two-thirds majority that the judge has Chamber. elected by majority vote in the ceased to fulfill the required conditions. Parliamentary Assembly of the Council of Europe from the three candidates each contracting state nominates. In some situations, ad hoc judges The echr has adopted a Resolution on Ad hoc judges of the government’s nationality may be appointed by a government Judicial Ethics that applies to all judges of may also be appointed. involved in a case that does not have the echr. representation on the bench.
Inter- 7 judges elected by the oas General 6 year term; Information oas General Assembly has disciplinary States are ensured judicial national representa- American Assembly, from a list of candidates may be unavailable. authority over its judges, but may exercise tion on cases heard before the iachr. Ad hoc Court for nominated by member States. reelected that authority only at the request of the judges may be appointed. Human Rights only once. Court itself. The oas has passed disciplinary measures for all of its judges.
Court Number of Members/Method of Term Limits Compensation Review & Removal Focus on National Representation Appointment
European 27 Judges (one per member country) 6 year term Approximately Removal by the unanimous opinion of the Each member state represented by one Court of and eight Advocates General. The renewable— £215,000. Judges and Advocates General of the Court national on the ecj. Justice Judges and Advocates General are half of the of Justice, if judge no longer fulfills the appointed by common accord of the court requisite conditions or meets the obliga- governments of the Member States re-elected tions arising from his office. after consultation of a panel every three responsible for giving an opinion on years. prospective candidates’ suitability to perform the duties concerned. The Advocates General assist the Court. They are responsible for presenting, with complete impartial- ity and independence, an “opinion” in the cases assigned to them. The Court may sit as a full court, in a Grand Chamber of 13 Judges or in Chambers of three or five Judges.
European The number of full-time judges sitting Non- Annual salary of Judges not allowed to participate in activity National judges cannot sit in a single-judge Court of in the echr is equal to that of the renewable €208,776 that may compromise the echr’s indepen- formation. Court always includes the national Human Rights contracting states to the European 9-year term. dence. Judges can only be dismissed from judge when it hears cases as a seven-judge Convention on Human Rights office if the other judges decide by a Chamber or a seventeen-judge Grand (currently 47 members). Judges are two-thirds majority that the judge has Chamber. elected by majority vote in the ceased to fulfill the required conditions. Parliamentary Assembly of the Council of Europe from the three candidates each contracting state nominates. In some situations, ad hoc judges The echr has adopted a Resolution on Ad hoc judges of the government’s nationality may be appointed by a government Judicial Ethics that applies to all judges of may also be appointed. involved in a case that does not have the echr. representation on the bench.
Inter- 7 judges elected by the oas General 6 year term; Information oas General Assembly has disciplinary States are ensured judicial national representa- American Assembly, from a list of candidates may be unavailable. authority over its judges, but may exercise tion on cases heard before the iachr. Ad hoc Court for nominated by member States. reelected that authority only at the request of the judges may be appointed. Human Rights only once. Court itself. The oas has passed disciplinary measures for all of its judges.
Court Number of Members/Method of Term Limits Compensation Review & Removal Focus on National Representation Appointment
No two judges may be nationals of the same State. Special Court The statute of the court indicated that Judges are Information The guarantee for an independent and Part of the tribunal requires that nationals of for Sierra the scsl would consist of eight to appointed unavailable. impartial tribunal is stipulated in Article Sierra Leone comprise a portion of the court. Leone eleven judges. Three would serve in the for a term of 13(1) of the scsl Statute. In addition, Rule There is no reference to nationality regarding trial chamber (of which one would be three years. 15(A) and (B) of the Court’s Rules provides judges to be appointed by the United Nations. appointed by the Sierra Leonean They can be for the disqualification of scsl judges if they government and two by the UN re-appointed. lack judicial impartiality Secretary-General) and five would serve in the appeals chamber (of which two would be appointed by the Sierra Leonean government and three by the UN Secretary-General). There are currently twelve judges, of which seven are Trial Judges (five UN appointed— including one alternate—and two nominated by the Sierra Leone government). The remaining five are Appeals Judges, three of whom were appointed by the UN and two nomi- nated by the Sierra Leone government.
Extraordinary Under the agreement between All judges International A judge may be disqualified if there is an Cambodians have a majority of representation Chambers for Cambodia and the UN, the eccc is to will serve out judges receive undue conflict of interest or if it is deter- in judicial proceedings. The tribunal in the Courts of be composed of both local and their terms approximately mined that the judge has lost impartiality. Cambodia has been faced with accusations of Cambodia international judges. Investigations are until the $186,904 per Such proceedings are submitted to a Pre-Trial corruption, political interference, and a lack of performed by the Investigating Judges, eccc has year, while Chamber. The Chamber Judges of the judge truly independent judiciary. International judges who will conduct investigations and completed its national judges in question will then vote on the matter. have been rejected by the Cambodian govern- submit a closing order stating whether work. receive approxi- ment for wanting to pursue Cases 003 and 004, or not the case will proceed to trial. mately $68,052 and two international judges have resigned over Both the Pre-Trial Chamber and the per year. political interference and a lack of judicial Trial Chamber are composed of three independence on the part of their Cambodian Cambodian and two international counterparts. judges, while a Supreme Court Chamber is made up of four Cambodian judges and three interna- tional judges.
Court Number of Members/Method of Term Limits Compensation Review & Removal Focus on National Representation Appointment
No two judges may be nationals of the same State. Special Court The statute of the court indicated that Judges are Information The guarantee for an independent and Part of the tribunal requires that nationals of for Sierra the scsl would consist of eight to appointed unavailable. impartial tribunal is stipulated in Article Sierra Leone comprise a portion of the court. Leone eleven judges. Three would serve in the for a term of 13(1) of the scsl Statute. In addition, Rule There is no reference to nationality regarding trial chamber (of which one would be three years. 15(A) and (B) of the Court’s Rules provides judges to be appointed by the United Nations. appointed by the Sierra Leonean They can be for the disqualification of scsl judges if they government and two by the UN re-appointed. lack judicial impartiality Secretary-General) and five would serve in the appeals chamber (of which two would be appointed by the Sierra Leonean government and three by the UN Secretary-General). There are currently twelve judges, of which seven are Trial Judges (five UN appointed— including one alternate—and two nominated by the Sierra Leone government). The remaining five are Appeals Judges, three of whom were appointed by the UN and two nomi- nated by the Sierra Leone government.
Extraordinary Under the agreement between All judges International A judge may be disqualified if there is an Cambodians have a majority of representation Chambers for Cambodia and the UN, the eccc is to will serve out judges receive undue conflict of interest or if it is deter- in judicial proceedings. The tribunal in the Courts of be composed of both local and their terms approximately mined that the judge has lost impartiality. Cambodia has been faced with accusations of Cambodia international judges. Investigations are until the $186,904 per Such proceedings are submitted to a Pre-Trial corruption, political interference, and a lack of performed by the Investigating Judges, eccc has year, while Chamber. The Chamber Judges of the judge truly independent judiciary. International judges who will conduct investigations and completed its national judges in question will then vote on the matter. have been rejected by the Cambodian govern- submit a closing order stating whether work. receive approxi- ment for wanting to pursue Cases 003 and 004, or not the case will proceed to trial. mately $68,052 and two international judges have resigned over Both the Pre-Trial Chamber and the per year. political interference and a lack of judicial Trial Chamber are composed of three independence on the part of their Cambodian Cambodian and two international counterparts. judges, while a Supreme Court Chamber is made up of four Cambodian judges and three interna- tional judges.
Court Number of Members/Method of Term Limits Compensation Review & Removal Focus on National Representation Appointment
All international judges have been appointed by the Supreme Council of the Magistracy of Cambodia from a list of nominees submitted by the Secretary General of the United Nations. There are also Reserve judges who may be called upon to serve in the event of an emergency. Pre-trial investigations are reviewed by both Cambodian and international officials.
Court Number of Members/Method of Term Limits Compensation Review & Removal Focus on National Representation Appointment
All international judges have been appointed by the Supreme Council of the Magistracy of Cambodia from a list of nominees submitted by the Secretary General of the United Nations. There are also Reserve judges who may be called upon to serve in the event of an emergency. Pre-trial investigations are reviewed by both Cambodian and international officials.
Neil Andrews*
I Introduction
Section 69 of the Arbitration Act 1996 confers power to challenge the award before the Commercial Court on the basis of an error of English law.1 By contrast with English law, in most legal systems, and soft-law provi- sions, judicial review of arbitral awards is not possible by reference to alleged errors of substantive law.2 The 2006 report on the Arbitration Act 1996 states that a majority of respondents considered that appeals from arbitral tribu- nals to the High Court on points of English law should be retained.3 The 2006 report also rejected the proposition that the restrictive criteria for permis- sion to appeal, specified at Section 69 of the Arbitration Act 1996, might be ‘starving English Contract Law of nourishment’ and ‘hindering its development’.4 At the Tokyo arbitration symposium (19 June 2012), it was suggested, however, that an annual average of 12 out of 50 grants of permission is
* Professor of Civil Justice and Private Law, Faculty of Law, University of Cambridge; Fellow of Clare College, Cambridge; Bencher of Middle Temple, 2007; Member of the American Law Institute; Vice-President, International Association of Procedural Law. 1 s. 69(2)(3), Arbitration Act 1996; there are many cases on this provision, for example, Flaux J. in ASM Shipping Ltd of India v. TTMI Ltd of England, (‘The Amer Energy’) [2009] 1 Lloyd’s Rep. 293, at [17] to [19]; the report by V.V. Veeder and A. Sander (Lord Mance’s Advisory Committee on Section 69) (2009): see end of this note) notes (Schedule 8, p. 8 of the report) that the Commercial Court, in London, considered 36 applications in 2006, and granted leave in 9; in 2007, 58, leave granted in 13; in 2008, 57, leave granted in 14; disclosing an average of 50 a year, with permission granted in 12; report available at: (http://www.lmaa.org.uk/uploads/ documents/First%20Interim%20Report%20Mance%2024%2005%202009.pdf); for further comment on s. 69, V.V. Veeder, ‘On Reforming the English Arbitration Act 1996?’, in J. Lowry and L. Mistelis, Commercial Law: Perspectives and Practice (LexisNexis, 2006), 243, at 14.23 et seq. 2 A. Redfern and M. Hunter, International Arbitration (N. Blackaby and C. Partasides, eds.) (5th edn., Oxford University Press, 2009), 10.60 ff. 3 ‘Report (2006) on the Arbitration Act 1996’, at [66] to [69] (www.idrc.co.uk/aa96survey/ Report_on_Arbitration_Act_1996.pdf). 4 ‘Report (2006) on the Arbitration Act 1996’, ibid., at [70] to [75].
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_024
‘high’ (for these figures, see this note).5 High Court review under Section 69 is regarded by some foreign lawyers as a quite aberrant feature of English arbitration It is a major contrast with the Model Law system under which appeal to a national court is unavailable from an arbitral award on a point of substantive law (of course the Model Law is not applicable in England).6 But Veeder staunchly defends Section 69, suggesting: ‘It remains unthinkable that the symbiotic link should be broken between commercial arbitration, the development of English law and the English Commercial Court’.7 In fact Section 69 is one of three possible grounds of challenge. The triad consists of these elements: (A) lack of jurisdiction (Section 67), or (B) the
5 Figures provided in the report by V.V. Veeder and A. Sander (2009), Schedule A, p. 8; report available at: (Lord Mance’s Advisory Committee on Section 69) (http://www.lmaa.org.uk/ uploads/documents/First%20Interim%20Report%20Mance%2024%2005%202009.pdf). 6 Article 34(2), UNCITRAL Model Law on International Commercial Arbitration 1985 (as amended in 2006) states: An arbitral award may be set aside by the [relevant nominated national] court specified in article 6 only if: (a) the party making the application furnishes proof that: (i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of this State; or (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral pro- ceedings or was otherwise unable to present his case; or (iii) the award deals with a dis- pute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, pro- vided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or (iv) the composition of the arbitral tri- bunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law; or (b) the court finds that: (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or (ii) the award is in conflict with the public policy of this State. 7 V.V. Veeder, ‘On Reforming the English Arbitration Act 1996?’, in J. Lowry and L. Mistelis, Commercial Law: Perspectives and Practice (LexisNexis, 2006), 243, at 14.23; he notes that s. 69(2)(a) already permits parties to increase this flow of cases by positively nominating, in their arbitration agreements, that a reference on a point of English law should be available to the High Court by way of appeal from an award; whereupon the ‘filter’ of s. 69(3), 1996 Act ceases to apply; and such references can thus be ‘received’ without more by the court. But, with respect, such positive decisions to ‘opt in’ are not common; and their inclusion seems low down on the list of ‘things to note’ when commercial contracts are finalised by (for the most part) non-contentious legal advisors.
8 s. 69(2)(3), Arbitration Act 1996. 9 s. 70(2), Arbitration Act 1996, states that an application or appeal under ss 67, 68, 69 (juris- diction, serious misconduct, error of English law) ‘may not be brought if the applicant or appellant has not first exhausted (a) any available arbitral process of appeal or review, and (b) any available recourse under s. 57 (correction of award or additional award’. And the court’s power under s. 79(1) to extend the time-limit is not to be exercised ‘unless [the court] is satisfied (a) that any available recourse to the tribunal, or to any arbitral or other institution or person vested by the parties with power in that regard, has first been exhausted, and (b) that a substantial injustice would otherwise be done’: s. 79(3). Therefore, it might not be possible to gain such an extension where a party has failed to pursue the ‘correction’ path under s. 57(3)(a), on the basis that there has been a ‘clerical mistake or error arising from an accidental slip or omission’ or, again under s. 57(3)(a), to ‘clarify or remove any ambiguity in the award’ (on s. 57(3)(a), see Torch Offshore LLC v. Cable Shipping Inc [2004] EWHC 787 (Comm), [2004] 2 All E.R. (Comm) 365; [2004] 2 Lloyd’s Rep. 446; [2004] C.L.C. 433, Cooke J., at [28]); or the applicant for an extension of time under s. 79(1) might be precluded from seeking such an extension because that party has failed to apply for an ‘additional award’ under s. 57(3)(b) ‘in respect of any claim… which was presented to the tribunal but was not dealt with in the award’ (on which Buyuk Camlica Shipping Trading and Industry Co Inc v. Progress Bulk Carriers Ltd [2010] EWHC 442 (Comm), [2011] Bus. L.R. D99, at [46], per Gavin Kealey Q.C (Deputy High Ct. judge)). Per Cooke J. in Torch Offshore LLC v. Cable Shipping Inc [2004] EWHC 787 (Comm), [2004] 2 All E.R. (Comm) 365; [2004] 2 Lloyd’s Rep. 446; [2004] C.L.C. 433, at [28]: ‘It seems to me that Section 57(3)(a) [see preceding note for its contents] can be used to request further rea- sons from the arbitrator or reasons where none exist. The policy which underlies the Act is one of enabling the arbitral process to correct itself where possible, without the intervention of the Court. Torch contended that it was clear that the arbitrator had not decided the issue and that therefore there was no ambiguity in the award which required clarification, but the very existence of a genuine dispute on this question militates against that argument. If there was unarguably a clear failure to deal with an issue, it could be said that there was no ambi- guity in the award, but…an award which contains inadequate rationale or incomplete rea- sons for a decision is likely to be ambiguous or need clarification. There was therefore room for an application by Torch under Section 57…so that the time limit of 28 days ( for which Section 57(4) provides) applied. In these circumstances Torch had available recourse under Section 57, which had not been exhausted and Section 70(2) therefore presents an insur- mountable bar to Torch’s Section 68 application’.
10 Omnibridge Consulting Ltd v. Clearsprings (Management) Ltd [2004] EWHC 2276 (Comm), at [62] (Siberry Q.C., deputy High Court judge): where a party has ‘failed to exhaust its available recourse under Section 57. Section 70(2) therefore presents an insurmountable bar to its Section 68 application’. ss 70(1),(2) of the Arbitration Act 1996 state: (1) The fol- lowing provisions apply to an application or appeal under Section 67, 68 or 69. (2) An appli- cation or appeal may not be brought if the applicant or appellant has not first exhausted— (a) any available arbitral process of appeal or review, and (b) any available recourse under Section 57 (correction of award or additional award). 11 An application for correction of the award, or the giving of an additional award, under s. 57, Arbitration Act 1996, must be made ‘within 28 days of the date of the award or such longer period as the parties may agree’ (s. 57(4), Arbitration Act 1996); an application or appeal under ss. 67, 68, 69 (jurisdiction, serious misconduct, error of English law) must be made ‘within 28 days of the date of the award or, if there has been any arbitral process of appeal or review, of the date when the applicant or appellant was notified of the result of that process’ (s. 70(3), Arbitration Act 1996). 12 Under the current legislation, the Arbitration Act 1996, the date of the award is that stated by the arbitrators (s. 52(5), Arbitration Act 1996); that date can be controlled by the arbi- trators (s. 54(1): ‘Unless otherwise agreed by the parties, the tribunal may decide what is to be taken to be the date on which the award was made’); unless the arbitrators fix such a date, the date will be that on which the arbitrator, or the last arbitrator (where there is more than one) signed the award (s. 54(2), Arbitration Act 1996); notification of the award to the parties is covered by s. 55, Arbitration Act 1996; the tribunal can withhold delivery of the award until there has been full payment of the tribunal’s fees and expenses (s. 56, Arbitration Act 1996). 13 The court has power to extend the 28 day time limit (see preceding note), under the gen- eral power contained in s. 79(1), Arbitration Act 1996. 14 [2004] EWHC 787 (Comm); [2004] 2 All E.R. (Comm) 365; [2004] 2 Lloyd’s Rep. 446, at[28]. 15 Buyuk Camlica Shipping Trading and Industry Co Inc v. Progress Bulk Carriers Ltd [2010] EHWC 442 (Comm), [2011] Bus. L.R. D99, at [42] and [43], per Gavin Kealey Q.C (Deputy High Ct. judge).
(b), the same judge noted a sub-division between instances (i) where the award does not make clear whether the tribunal has postponed its decision on a par- ticular issue and (ii) where the award is obscure on how it has been decided:16
‘There might be some cases where there is an element of real doubt as to whether or not an issue has been dealt with [in the award]…[But this] would normally arise in cases where there is doubt as to whether a tribu- nal has left over for future determination some issue or claim in the refer- ence (in which case Section 57(3)(b) might also be applicable), or where a tribunal has come to a decision but there is some inadequacy or absence of analysis in its reasoning that leaves it unclear17 whether and, if so, how it has dealt with certain issues in order to arrive at its decision.’
II The Gateway under Section 69
Permission to appeal under Sections 67 to 69 from the High Court (for qualifi- cations concerning other courts, see the end of this paragraph) to the Court of Appeal can only be given by the High Court itself,18 unless (i) the High Court decision was made outside the court’s jurisdiction,19 or (ii) consider- ation of the issue of permission involved an unfair process,20 or (iii) there is a
16 Ibid., at [43]. 17 Ibid., noting as an example of this context, Torch Offshore LLC v. Cable Shipping Inc [2004] EWHC 787 (Comm), [2004] 2 All E.R. (Comm) 365; [2004] 2 Lloyd’s Rep. 446. 18 Cetelem S.A. v. Roust Holdings Ltd [2005] EWCA Civ 618, [2005] 1 W.L.R. 3555, at [20] not- ing that: ‘This court has considered the meaning of “the court” in equivalent sub-sections on three previous occasions and has held that it means the court of first instance and not the Court of Appeal. They are Henry Boot Construction (U.K.) Ltd v. Malmaison Hotel (Manchester) Ltd [2001] Q.B. 388, CA [on s. 69(8)], Athletic Union of Constaninople v. National Basketball Association (No. 2) [2002] EWCA Civ 830, [2002] 1 W.L.R. 2863 [on s. 67(3)] and Virdee v. Virdi [2003] EWCA Civ 41 [on s. 18(5)]’. 19 In Cetelem, ibid., it was held that a decision made by the High Court under s. 44(3) which was made outside the court’s jurisdiction was not subject to s. 44(7) and so the Court of Appeal could entertain an appeal. 20 CGU International Insurance plc v. Astra Zeneca Insurance Co. Ltd [2006] EWCA Civ 1340, [2007] Bus. L.R. 162; [2007] 1 All E.R. (Comm) 501; [2007] 1 Lloyd’s Rep. 142; [2007] C.P. Rep. 4; [2006] 2C.L.C. 441; [2006] H.R.L.R. 43, at [98], per Rix L.J., concluding his long survey of this issue: ‘I can find in none of these submissions any cause for thinking that the judge’s refusal of leave to appeal was arbitrary or unfair; or was the product of a failure of intellec- tual engagement with the arguments put before him; or amounted actually or metaphori- cally to the absence of a decision on the issue; or even, for all that I have rejected this as a
possible test of unfairness, was perverse; or, for this is ultimately the test, amounted to such unfairness in the process as to amount to a breach of article 6 of the Convention’. 21 Sukuman Ltd v. Commonwealth Secretariat [2007] EWCA Civ 243, [2007] Bus. L.R. 1075; [2007] 3 All E.R. 342; [2007] 2 All E.R. (Comm) 23; [2007] 2 Lloyd’s Rep. 87; [2007] 1C.L.C. 282 (held that an exclusion clause, accompanying an arbitration agreement, had been validly incorporated into the parties’ agreement; the resulting arbitration award could not be challenged under s. 69, Arbitration Act, because the parties had in writing excluded that possibility; such exclusion was not contrary to Article 6 of the European Convention on Human Rights). 22 Ibid., at [30]. 23 (1) C.P.R. 62.1(3): Part 58 (Commercial Court) applies to arbitration claims in the Commercial Court, Part 59 (Mercantile Court) applies to arbitration claims in the Mercantile Court and Part 60 (Technology and Construction Court claims) applies to arbitration claims in the Technology and Construction Court, except where this Part provides otherwise; (2) P.D. (61), para. 2.3(2); (3) Section O, The Admiralty and Commercial Courts Guide (9th edn., 2011); (4) High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996/3215. 24 P.D. (61), para. 2.3(2): matters ‘relating to a landlord and tenant or partnership dispute must be issued in the Chancery Division of the High Court’. 25 High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996/3215. 26 Walker J. in Royal & Sun Alliance Insurance plc v. BAE Systems (Operations) Ltd [2008] EWHC 743 (Comm), [2008] 1 Lloyd’s Rep. 712; [2008] 1C.L.C. 711; [2008] Bus. L.R. D127, at [29], acknowledging that the parties can opt-in by agreement so as to create a contractual right to a s. 69 appeal on a point of English law; by contrast, the court has control of the determination whether to accede to an application under s. 45 (preliminary points of English law); and so s. 45 contrasts with the parallel provision, s. 69; Walker J. said, ibid.: ‘Section 69(2) makes it clear that there will be no need for leave of the court if there is an agreement by all parties to the arbitral proceedings that an appeal on law may be brought. It is not a question of contracting out of the need for leave. The approach taken in Section 69 is to introduce a requirement for leave only in those cases where the parties have not posi- tively agreed that there may be an appeal on law’. The relevant clause in that case stated, ibid., at [22]: ‘Any party to the Dispute may appeal to the court on a question of law arising out of an award made in the arbitral proceedings’. (This case is also noted in the report by
Leave to appeal shall be given only if the court is satisfied—(a) that the determination of the question will substantially affect the rights of one or more of the parties, (b) that the question is one which the tribunal was asked to determine, (c) that, on the basis of the findings of fact in the award—(i) the decision of the tribunal on the question is obviously wrong, or (ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and (d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question.
Commenting generally on that appeal process under Section 69 of the 1969 Act—concerning appeals to the High Court from arbitration awards on points of pure English law—Rix LJ said in CGU International Insurance plc v. Astra Zeneca Insurance Co Ltd (2006):28
‘Section 69…enacts a concern, in the interests of party autonomy, privacy and finality, that such awards should not be readily transferred to the courts for appellate review. Therefore, an appeal to the first instance court can only be brought with leave… If leave to appeal to the court is refused then an appeal to the Court of Appeal from that refusal can only be granted by the first instance court, unless that court itself gives leave to appeal from its refusal of leave.’29
V.V. Veeder and A. Sander (2009), at [13] and [14]; report (Lord Mance’s Advisory Committee on Section 69) available: (http://www.lmaa.org.uk/uploads/documents/ First%20Interim%20Report%20Mance%2024%2005%202009.pdf). 27 s. 69(3), Arbitration Act 1996. 28 [2006] EWCA Civ 1340, [2007] Bus. L.R. 162; [2007] 1 All E.R. (Comm) 501; [2007] 1 Lloyd’s Rep. 142; [2007] C.P. Rep. 4; [2006] 2C.L.C. 441; [2006] HRLR 43, at [3], per Rix L.J. 29 This Delphic last sentence seems to mean: (i) the High Court can grant permission to appeal to the Court of Appeal from its decision not to grant permission for the arbitration award to be proceed on appeal to the High Court; or (ii) the High Court can grant permis- sion to appeal to the Court of Appeal from its refusal of permission to appeal from its refusal to grant permission for the case to proceed to the Court of Appeal. Situation (ii) is analytically distinct, at least to the logicians of appellate practice.
Court of Appeal Closed Off Unless High Court Judge Grants Permission: Permission to appeal under Section 69 from the High Court to the Court of Appeal can only be given by the High Court itself. Thus Section 69(6) states that: The leave of the court is required for any appeal from a decision of the court under this section to grant or refuse leave to appeal.30 That restriction applies equally to (i) a refusal to grant permission for an appeal to the High Court (or to the grant of such permission) and (ii) to the refusal (or grant) of permission to appeal from a decision made after the High Court, having granted permis- sion at stage (i), has heard an appeal under Section 69. But see the next para- graph for the qualification based on the Court of Appeal’s ‘Residual Jurisdiction’). ‘The Residual Jurisdiction’ of the Court of Appeal: In North Range Shipping Ltd v. Seatrans Shipping Corporation (2002)31 the Court of Appeal said that civil judges, even when performing such instinctive assessments as the decision whether to grant permission to appeal, must respect minimal requirements of ‘reasoning’. And so the High Court judge in the present context must indicate the essence of the judge’s reasons for refusing permission.32 This ‘last ditch’
30 Cetelem S.A. v. Roust Holdings Ltd [2005] EWCA Civ 618, [2005] 1 W.L.R. 3555, at [20] not- ing that: ‘This court has considered the meaning of “the court” in equivalent sub-sections on three previous occasions and has held that it means the court of first instance and not the Court of Appeal. They are Henry Boot Construction (U.K.) Ltd v. Malmaison Hotel (Manchester) Ltd [2001] Q.B. 388, C.A. [on s. 69(8)], Athletic Union of Constaninople v. National Basketball Association (No 2) [2002] EWCA Civ 830, [2002] 1 W.L.R. 2863 [on s. 67(3)] and Virdee v. Virdi [2003] EWCA Civ 41 [on s. 18(5)]’. But in the Cetelem case itself, concern- ing s. 44(3) and 44(7), it was held that a decision made by the High Court under s. 44(3) which was made outside the court’s jurisdiction was not subject to s. 44(7) and so the Court of Appeal could entertain an appeal. 31 [2002] 1 W.L.R. 2397, CA, at [21] and [22]. 32 R. (on the application of Medical Justice) v. Secretary of State for the Home Department [2011] EWCA Civ 269, [2011] 1 W.L.R. 2852, per Tuckey L.J., giving the judgment of the court: ‘At the very least we think an unsuccessful applicant for leave should be told which of those tests he has failed. This accords with what David Steel J. did in Mousaka Inc v. Golden Seagull Maritime Inc [2002] 1 W.L.R. 395 and appears to be the current practice of commercial judges. But does the judge need to go further and explain in every case why the relevant threshold test has been failed? We think the answer to this question is “No”. If the question is not one of law, does not substantially affect the rights of one or more of the parties or is not one which the tribunal was asked to determine, an adequate reason for the judge’s decision will in almost all cases have been given simply by identifying the test or tests which the applicant has failed without the need to say more. The same applies we think to the question of general public importance. However, when one gets to whether the tribunal’s decision was obviously wrong or not open to serious doubt, we do not think that it is possible to give an unqualified answer to the question we have posed. It may be enough simply to refer to the statutory test,
‘If, as is accepted, there is a residual jurisdiction in this court to set aside a judge’s decision for misconduct then there can be no reason in princi- ple why the same relief should not be available in the case of unfairness. Each is directed at the integrity of the decision-making process or the decision-maker, which the courts must be vigilant to protect, and does not directly involve an attack on the decision itself.’
The Residual Jurisdiction and the High Court Judge’s Refusal to Grant Permis sion from his Substantive Hearing of an Appeal under Section 69: If the High Court judge has granted permission to examine the arbitration award under Section 69, and has made a substantive decision, but the High Court judge then refuses (or perhaps grants) permission under Section 69(8) for a further appeal to the Court of Appeal, the latter court has held that the appellate court can intervene only if there is a breach of fairness in this ‘permission’ process. This involves the Court of Appeal’s ‘residual jurisdiction’: an opportunity for a last-ditch attack on a decision on the ground that it is procedurally vitiated, rather than it is insecure or even demonstrably wrong on the factual or legal
but we do not think it is possible to say that this will always be so. It would be enough to say “For the reasons given by the arbitrators” if that was the judge’s reason. Otherwise it may be necessary to go further. But any further reasons need only be brief, so as to show the losing party why he has lost’. 33 CGU International Insurance plc v. Astra Zeneca Insurance Co Ltd [2006] EWCA Civ 1340, [2007] Bus. L.R. 162; [2007] 1 All E.R. (Comm) 501; [2007] 1 Lloyd’s Rep. 142; [2007] C.P. Rep. 4; [2006] 2C.L.C. 441; [2006] H.R.L.R. 43, at [48] ff., per Rix L.J.; and per Arden L.J. in BLCT (13096) Ltd v. J. Sainsbury plc [2003] EWCA Civ 884, [2004] 1C.L.C. 24; [2004] 2 P. & C.R. 3 at [22] and [31]. 34 Ibid., at [49], where Rix L.J. cited Tuckey L.J. in North Range Shipping Ltd v. Seatrans Shipping Corporation [2002] 1 W.L.R. 2397, C.A., at [14].
35 CGU International Insurance plc v. Astra Zeneca Insurance Co Ltd [2006] EWCA Civ 1340, [2007] Bus. L.R. 162; [2007] 1 All E.R. (Comm) 501; [2007] 1 Lloyd’s Rep. 142; [2007] C.P. Rep. 4; [2006] 2C.L.C. 441; [2006] HRLR 43, at [98], per Rix L.J., concluding his long survey of this issue: ‘I can find in none of these submissions any cause for thinking that the judge’s refusal of leave to appeal was arbitrary or unfair; or was the product of a failure of intellec- tual engagement with the arguments put before him; or amounted actually or metaphori- cally to the absence of a decision on the issue; or even, for all that I have rejected this as a possible test of unfairness, was perverse; or, for this is ultimately the test, amounted to such unfairness in the process as to amount to a breach of article 6 of the Convention’. 36 Arden L.J.’s brief discussion in a 2003 case is cited as follows by Rix L.J. in CGU International Insurance plc v. Astra Zeneca Insurance Co Ltd [2006] EWCA Civ 1340, at [52]: ‘in BLCT (13096) Ltd v. J Sainsbury plc [2003] EWCA Civ 884, [2004] 1C.L.C. 24; [2004] 2 P. & C.R. 3 the application complained of the first instance court’s decision to proceed to a decision on whether or not to grant leave to appeal against an arbitration award without an oral hearing [a decision on the permission issue on the basis of documents alone is consistent with Section 69(3)]. The applicant further argued that the restriction contained in Section 69(6) of the Arbitration Act 1996 was itself incompatible with Article 6. Arden L.J. asked herself, at para. 45, whether the Section 69(6) restriction “would apply to the refusal of a judge to recuse himself on the grounds of bias. It would certainly be very odd if the refusal of the judge to give leave against that decision meant that the appellant had no avenue of appeal to the Court of Appeal. In my judgment, the answer lies not in any incompatibility with the Convention but in the residual jurisdiction articulated in the North Range Shipping Ltd case.”’ 37 The foreign (or non-English) reader should note that the last such trophy victory was the World Cup in 1966. 38 For a trenchant examination of this topic, J. Hill, ‘Onward Appeals under the Arbitration Act 1996’ (2012) 31C.J.Q. 194. 39 Itochu Corporation v. Johann M.K. Blumenthal GMBH & Co KG [2012] EWCA Civ 996; [2013] 1 All E.R. (Comm) 504; [2012] 2 Lloyd’s Rep. 437; [2012] 2C.L.C. 864, at [18], Gross L.J.
(2011),40 and earlier in Sukuman Ltd v. Commonwealth Secretariat (2007), where Waller LJ said:41
‘[The Arbitration Act 1996 contains] many sections in which the right to appeal to the Court of Appeal is circumscribed by the necessity to obtain leave from “the court” at first instance. …[This requirement is intended] to avoid the delay and expense that such appeals can cause. …[The] philosophy is reflected in Section 1(a) of the Arbitration Act 1996, which provides that “the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay and expense “ (our emphasis).’
The English court is also given a circumscribed power under Section 4542 of the Arbitration Act 1996 to decide a point of law (that is, a point of
commenting: ‘Court intervention in the arbitral process is broadly restricted to that which is necessary either to support the arbitral process or in the public interest ( for example, a chal- lenge to an award on the ground of serious irregularity under Section 68 of the Act). Curtailing appeals to the Court of Appeal serves to avoid the delay and expense to which such appeals can give rise: see, Sumukan Ltd v. Commonwealth Secretariat [2007] EWCA Civ 243, [2007] Bus. L.R. 1075, at [15]’. 40 AMEC Civil Engineering Ltd v. Secretary of State for Transport [2005] EWCA Civ 291, [2005] 1 W.L.R. 2339, at [9], per Sir Anthony May, criticising Jackson J’s grant of permission for a second appeal under s. 67, Arbitration Act 1996. 41 [2007] EWCA Civ 243, [2007] Bus. L.R. 1075; [2007] 3 All E.R. 342; [2007] 2 All E.R. (Comm) 23; [2007] 2 Lloyd’s Rep. 87; [2007] 1C.L.C. 282, at [15]. 42 s. 45, Arbitration Act 1996 states: (1) Unless otherwise agreed by the parties, the court may on the application of a party to arbitral proceedings (upon notice to the other parties) deter- mine any question of law arising in the course of the proceedings which the court is satisfied substantially affects the rights of one or more of the parties. An agreement to dispense with reasons for the tribunal’s award shall be considered an agreement to exclude the court’s jurisdiction under this section. (2) An application under this section shall not be considered unless—(a) it is made with the agreement of all the other parties to the proceedings, or (b) it is made with the permission of the tribunal and the court is satisfied—(i) that the determina- tion of the question is likely to produce substantial savings in costs, and (ii) that the applica- tion was made without delay. (3) The application shall identify the question of law to be determined and, unless made with the agreement of all the other parties to the proceedings, shall state the grounds on which it is said that the question should be decided by the court. (4) Unless otherwise agreed by the parties, the arbitral tribunal may continue the arbitral pro- ceedings and make an award while an application to the court under this section is pending. (5) Unless the court gives leave, no appeal lies from a decision of the court whether the condi- tions specified in subsection (2) are met. (6) The decision of the court on the question of law
English law)43 arising in the proceedings before the making of the main award. Section 45(2) of the Arbitration Act 1996 states:
An application under this section shall not be considered unless—(a) it is made with the agreement of all the other parties to the proceedings, or (b) it is made with the permission of the tribunal and the court is satisfied— (i) that the determination of the question is likely to produce substantial savings in costs, and (ii) that the application was made without delay.
Section 45 can be excluded by agreement and there is a restriction on appeal to the Court of Appeal, as noted en passant by Waller LJ in Sukuman Ltd v. Commonwealth Secretariat (2007).44 According to Mustill & Boyd, the court should assert sovereign command of the Section 45 gateway and, where appro- priate, decide to override the parties’ agreement to obtain a judicial ruling:45 ‘The court is not obliged to determine a question of law even if the conditions imposed by [Section 45] are satisfied. For example, even if the application is made with the agreement of the parties, the court may consider that the question is not properly formulated, or is academic, or that it ought properly to be determined by the tribunal rather than by the court’. It is certainly desirable that the court should not be bound to act as the legal oracle under Section 45, just because the parties have so agreed. But there is no clear textual support for the argu- ment just cited. (By contrast, for the purpose of Section 69, it has been decided that the High Court must hear an appeal on a point of English law if the parties agree to such an appeal:46 it is arguably regrettable that the court lacks sover- eign command of the gateway under Section 69).
shall be treated as a judgment of the court for the purposes of an appeal. But no appeal lies without the leave of the court which shall not be given unless the court considers that the question is one of general importance, or is one which for some other special reason should be considered by the Court of Appeal. 43 s. 82(1), Arbitration Act 1996. 44 [2007] EWCA Civ 243, [2007] Bus. L.R. 1075; [2007] 3 All E.R. 342; [2007] 2 All E.R. (Comm) 23; [2007] 2 Lloyd’s Rep. 87; [2007] 1C.L.C. 282, at [9]: ‘[Section 45] relates to the court’s jurisdiction to rule on a preliminary point of law. It (like Section 69) commences with the words “Unless otherwise agreed by the parties”, and it contains a fetter on the right to appeal to the Court of Appeal not by reference to any decision “under this section”, but to particular aspects of decisions under Section 45 which on a literal interpretation do not include a deci- sion on whether the parties have “otherwise agreed”’. 45 Mustill & Boyd, Commercial Arbitration: Companion Volume (2001), 326. 46 Walker J. in Royal & Sun Alliance Insurance plc v. BAE Systems (Operations) Ltd [2008] EWHC 743 (Comm), [2008] 1 Lloyd’s Rep. 712; [2008] 1C.L.C. 711; [2008] Bus. L.R. D127, at
III The Key Which Turns the Lock to the Section 69 Gate: A Point of English Law
Issues of construction of written contracts can fall within the scope of ‘law’.47 Sometimes the arbitration will also or instead be asked to determine the cor- rect interpretation of the arbitration agreement, but this will normally attract protection under Section 67, rather than Section 69.48 In Trustees of Edmond Stern Settlement v. Simon Levy (2007) Judge Coulson QC, in the Technology and Construction Court, said that one-off contracts are unlikely to raise issues of sufficient general importance to warrant permission being granted under Section 69.49 More generally, he noted that interpretation of written contracts is often a matter of impression, involving reference to rel- evant ‘factual matrix’ material. For this reason, the High Court should be slow to second-guess that type of decision.50 Where the governing substantive law is English, the arbitral tribunal is obliged to adhere to English principles governing interpretation of written contracts.51
[29], construing s. 69(2), Arbitration Act 1996: ‘An appeal shall not be brought under this section except—(a) with the agreement of all the other parties to the proceedings, or (b) with the leave of the court’. 47 eg, Henry Boot Construction Ltd v. Alstom Combined Cycles Ltd [2005] EWCA Civ 814, [2005] 1 W.L.R. 3850. 48 AMEC Civil Engineering Ltd v. Secretary of State for Transport [2005] EWCA Civ 291, [2005] 1 W.L.R. 2339 (in fact a point of interpretation of the arbitration agreement will normally give rise to a challenge under the jurisdiction head, within Section 67, Arbitration Act 1996). 49 [2007] EWHC 1187 (TCC), at [11] and 13], per Judge Coulson QC (as he then was): ‘11 It is common ground that the true construction of this one-off form of words cannot be a matter of general or public importance…13 Questions of construction are often a matter of impres- sion. Whilst I can see how and why the Arbitrator could have come to a different view, I am unable to say that he was obviously wrong in reaching the conclusion he did. It seems to me that either interpretation was available to him and, as he was bound to do, he chose one over the other. I do not consider that he was obviously wrong in the choice he made. Furthermore, given that this is a question of construction that had to be answered against the background of the relevant factual material in accordance with the well-known principles in Investors Compensation Scheme v. West Bromwich Building Society [1998] 1 W.L.R. 896, HL, it should only be in the clearest cases that a Judge considering a Section 69 application, who has not heard such evidence, should substitute his own construction for that of the Arbitrator, who has’. 50 Ibid. 51 On the principles of interpretation under Investors Compensation Scheme v. West Bromwich Building Society [1998] 1 W.L.R. 896, 912–913, HL, per Lord Hoffmann (on which see also Chartbrook Ltd v. Persimmon Homes Ltd [2009] UKHL 38; [2009] 1 A.C. 1001, at [14]
It follows that the tribunal must not engage in equitable re-writing of the agreement:52
‘The tribunal does not have a judicial discretion” to decide on a commercially sensible solution…nor does it have the right to rewrite a contractual provision…so that it accords with what the tribunal thinks
to [25], per Lord Hoffmann) and the doctrine of rectification, N. Andrews, Contract Law (Cambridge University Press, 2011), ch. 14; K. Lewison, The Interpretation of Contracts (5th edn., 2011); on rectification, see also D. Hodge, Rectification: The Modern Law and Practice Governing Claims of Rectification (2010); for an important recent case, relevant to both aspects, Daventry District Council v. Daventry & District Housing Ltd [2011] EWCA Civ 1153, [2012] 1 W.L.R. 1333. Besides the foregoing, see on this topic: G. McMeel, The Construction of Contracts: Interpretation, Implication and Rectification (Oxford University Press, 2nd edn. 2011) (see also McMeel’s articles in [1998] L.M.C.L.Q. 382; (2003) 119 L.Q.R. 272; (2005) 34 CLWR 256; [2006] L.M.C.L.Q. 49; (2011) European Business L. Rev. 437–449; and McMeel, ‘The Principles and Policies of Contractual Construction’, in A Burrows and E Peel (eds), Contract Terms (Oxford University Press, 2007), ch. 3); Catherine Mitchell, Interpretation of Contracts (2007). Other discussion: Lord Bingham, ‘A New Thing Under the Sun: The Interpretation of Contract and the ICS Decision’ (2008) 12 Edinburgh L.R. 374; R. Buxton, “Construction” and Rectification After Chartbrook’ [2010] C.L.J. 253; J. Cartwright, ‘Interpretation of English Law in Light of the Common Frame of Reference’ in H. Snijders and S. Vogenauer (eds.), Content and Meaning of National Law in the Context of Transnational Law (Sellier, 2009); Lord Hoffmann, ‘The Intolerable Wrestle with Words and Meanings’ (1997) South Africa L.J. 656; E McKendrick, in S. Worthington (ed.), Commercial Law and Commercial Practice (Hart, Oxford, 2003); D. McLauchlan, ‘Contract Interpretation: What is it About?’ (2009) 31 Sydney Law Review 5; Lord Nicholls, ‘My Kingdom for a Horse: the Meaning of Words’ (2005) 121 L.Q.R. 577; Lord Phillips, ‘The Interpretation of Contracts and Statutes’ (2002) 68 Arbitration 17; Spigelmann C.J., ‘From Text to Contract: Contemporary Contractual Interpretation’ (2007) 81 A.L.J. 322; Sir Christopher Staughton, ‘How Do The Courts Interpret Commercial Contracts?’ [1999] C.L.J. 303; Lord Steyn, ‘Written Contracts: To What Extent May Evidence Control Language?’ (1988) 41C.L.P. 23; C. Valke, ‘On Comparing French and English Contract Law: Insights from Social Contract Theory’ (2009) Jo. of Comparative Law 69–95 (cited as ‘illuminat- ing’ by Lord Hoffmann in the Chartbrook case [2009] UKHL 38; [2009] 1 A.C. 1001, at [39]); C. Valcke, ‘Contractual Interpretation at Common Law and Civil Law: An Exercise in Comparative Legal Rhetoric’, in J.W. Neyers, R. Bronaugh, S.G.A. Pitel, Exploring Contract Law (Hart, Oxford, 2009), 77 ff; S. Vogenauer, ‘Interpretation of Contracts: Concluding Comparative Observations’, in A. Burrows and E. Peel (eds.), Contract Terms (Oxford University Press, 2007), ch. 7. 52 This restrictive approach was noted, after a review of several authorities, in Omnibridge Consulting Ltd v. Clearsprings (Management) Ltd [2004] EWHC 2276 (Comm), at [52] (Siberry Q.C., deputy High Court judge).
the parties ought to have agreed, irrespective of their intentions as deduced from the terms of the contract, properly construed.´
The courts will be slow to construe the arbitration clause as authorising a looser approach. For example, in Home & Overseas Insurance Co Ltd v. Mentor Insurance Co (UK) Ltd (1990)53 the arbitration agreement stated: ‘The arbitra- tors…shall interpret this reinsurance as an honourable engagement and they shall make their award with a view to effecting the general purpose of this reinsur- ance in a reasonable manner rather than in accordance with a literal interpreta- tion of the language’. The Court of Appeal held that this merely affirmed the commercial style of English interpretation of contracts (notably the approach endorsed by Lord Diplock in ‘The Antaios’, 1985).54 There is some first instance suggestion that (i) the date of formation (if extrinsic to the text) falls outside Section 69; (ii) similarly, issues of rectifica- tion; and (iii) issues concerning the incorporation of side agreements. However, of these, only (i) seems clearly to involve an issue of fact, rather than law.55 Another case decides, persuasively, that a question of reasonableness, detached from the text of a written contract, but arising in connection with a written contract, is an issue of fact.56
53 [1990] 1 W.L.R. 153, 161–2, C.A., per Parker L.J.; however, Lloyd L.J. at 164–165 contemplated that arbitrators might be inclined to be more ‘lenient’ in their approach to contractual language; but in the ensuing quarter of a century the majestic expansion of the Investors Compensation Scheme principles (the Investors Compensation Scheme v. West Bromwich Building Society [1998] 1 W.L.R. 896, 912–913, H.L.), has undermined the suggested antith- esis between lenient and strict approaches to contractual interpretation; Lord Lloyd was later to dissent in that 1998 case ([1998] 1 W.L.R. 896, 904). 54 [1985] A.C. 191, HL; on which N. Andrews, Contract Law (Cambridge University Press, 2011), 17.27 (see also 14.06 and 14.07). 55 The following case must be treated with caution as far as propositions (ii) and (ii) are concerned: Plymouth C.C. v. D. R. Jones (Yeovil) Ltd [2005] EWHC 2356, per Coulson J. at [20], suggesting (persuasively) that the question (extrinsic to the text of the written con- tract) of the contract’s date of formation was a question of fact and not of law; less con- vincingly at [26] and [39] suggesting that the question whether the written contract should be open to rectification on the basis of shared error was an issue of fact (the more persuasive analysis is that such an issue is quintessentially one of establishing the integ- rity of the text and, therefore, a matter of law); suggesting further at [32] to [34] that the issue whether the written agreement includes other documents, not expressly included in the main text, is a question of fact; again this view seems doubtful. 56 London Underground Ltd v. Citylink Telecommunications Ltd [2007] EWHC 1749 (TCC), [2007] 2 All E.R. (Comm) 694; [2007] BLR 391; 114 Con LR 1, at [250] ff, per Ramsey J.: ‘250 On the basis of those findings of fact, the Arbitrator concluded in paragraph 236 that
An aggrieved party cannot bring an appeal from an award on the basis that the arbitral tribunal has committed an error of fact or that it has misidentified or misapplied a point of foreign law.57 Furthermore, as the Court of Appeal decided in C v. D (2007),58 if the seat of the arbitration is England and Wales, a party cannot evade this last limitation by seeking a declaration from a foreign court that the English award on a point of foreign law involves a misunder- standing or misapplication of that foreign law. Findings of fact should not be dressed up as issues of law.59 The arbitral tri- bunal’s findings of fact cannot be attacked under Section 69 by contending that there is no evidence at all to support them, or by similar intellectual devices.60
IV Exclusion of Appeal on Points of English Law
Parties can contract out of the curial appeal process on points of English law, and thus consensually disapply the Section 69 route to the High Court. But careful wording must be adopted. Thus Gloster J in Shell Egypt West Manzala GmbH v. Dana Gas Egypt Ltd (2009) held that the formula ‘final, conclusive and binding’, contained in the
the dates for completion of the EBW in UD07 could no longer be regarded as a satisfac- tory yardstick for measuring LUL’s performance of those obligations. He was entitled to decide whether the dates in UD07 were reasonable in the light of the circumstances and he did so. That is essentially a question of fact. There is no question of the Arbitrator construing the contract by reference to subsequent conduct. He was assessing the reasonableness of the dates in UD07 in the light of the relevant circumstances. 251 There does not seem to be a ques- tion of law. The Arbitrator approached the question of whether the dates were reasonable in the correct fashion and there was nothing wrong or obviously wrong in his approach’. 57 This is the result of the definition of ‘question of law’ in s. 82(1), Arbitration Act 1996; affecting scope of s. 69, Arbitration Act 1996 (appeal to court on a ‘question of law arising out of an award made in the [arbitration] proceedings’; choice of substantive law covered by s. 46(1), Arbitration Act 1996. 58 C v. D [2007] EWCA Civ 1282, [2008] 1 Lloyd’s Rep. 239. 59 E.g., Surefire Systems Ltd v. Guardian ECL Ltd [2005] EWHC 1860 (TCC), [2005] B.L.R. 534, at [21], per Jackson J; see also Steyn L.J. in Geogas SA v. Trammo Gas Ltd (‘The Baleares’) [1993] 1 Lloyd’s Rep. 215, cited in London Underground Ltd v. Citylink Telecommunications Ltd [2007] EWHC 1749 (TCC); [2007] 2 All E.R. (Comm) 694; [2007] B.L.R. 391; 114 Con. L.R. 1, at [61]. 60 London Underground Ltd v. Citylink Telecommunications Ltd [2007] EWHC 1749 (TCC); [2007] 2 All E.R. (Comm) 694; [2007] B.L.R. 391; 114 Con. L.R. 1, at [52] to [66], per Ramsey J. for a detailed collection of relevant cases.
‘All awards shall be final and binding on the parties. By agreeing to arbi- tration under these Rules, the parties undertake to carry out any award immediately and without any delay (subject only to Article 27 [which concerns correction of awards by the arbitration tribunal on request by a party or on the initiative of the tribunal]; and the parties also waive irre- vocably their right to any form of appeal, review or recourse to any state court or other judicial authority, insofar as such waiver may be val- idly made.’
Similarly, Article 34.6 of the I.C.C. (2012) rules (International Chamber of Commerce) provides:
‘Every award shall be binding on the parties. By submitting the dispute to arbitration under these Rules, the parties undertake to carry out any award without delay and shall be deemed to have waived their rights to any form of recourse insofar as such waiver can validly be made.’
However, a clear express clause in a dispute resolution agreement, stipulating that an aggrieved party can appeal an award on a point of English law, will be given effect, even though institutional rules, incorporated into the same agree- ment, contain a conflicting rule which purports to oust a Section 69 appeal. Walker J so decided in Royal & Sun Alliance Insurance plc v. BAE Systems (Operations) Ltd (2008), where the relevant express clause stated: ‘Any party to the Dispute may appeal to the court on a question of law arising out of an award
61 [2009] EWHC 2097 (Comm).
‘The judgment of the tribunal shall be final and binding on the parties and shall not be subject to appeal. This provision shall constitute an ‘exclusion agreement’ within the meaning of the laws of any country requiring arbitration or as those provisions may be amended or replaced.’
It was also held that such exclusion was not contrary to Article 6 of the European Convention on Human Rights.66
V Effect of the High Court Appeal under Section 69
Section 69(7) of the Arbitration Act 1996 states that the High Court can uphold the award, or vary it, or set it aside, or remit the award to the (same) arbitral
62 [2008] EWHC 743 (Comm), [2008] 1 Lloyd’s Rep. 712; [2008] 1C.L.C. 711; [2008] Bus. L.R. D127, at [22]. 63 [2007] EWCA Civ 243, [2007] Bus. L.R. 1075; [2007] 3 All E.R. 342; [2007] 2 All E.R. (Comm) 23; [2007] 2 Lloyd’s Rep. 87; [2007] 1C.L.C. 282. 64 Ibid., at [44] to [52], and [61], deciding that the doctrine permitting the courts to lean against incorportation of ‘onerous or unusual’ clauses (Interfoto Picture Library Ltd v. Stiletto Visual Programmes Ltd [1989] Q.B. 433, C.A.) was not applicable to such a clause. 65 Ibid., at [36]. 66 Ibid., at [58] to [60], where Waller L.J. said: ‘once arbitration is recognised as in the interests of parties seeking to resolve their dispute, it is no major step to recognise the advantages to the parties (not, I stress, just one party) agreeing that there be no appeal from that award. The arbitrators are the persons that the parties have by contract agreed to resolve their dis- putes. The reason for arbitration would normally include a wish for speed and privacy. The parties are simply agreeing a process that fulfils those objectives. 59 There is in any event under the Arbitration Act 1996 not a total exclusion of the court. Safeguards are provided by
the mandatory provisions of Section 67 and 68. If the partiality of the arbitrators is open to question, or there is some serious irregularity then an application under Section 68 can be made. All that is being waived is the right to a public hearing in court (and that by the unchallenged arbitration clause), and a right to test the decision of the arbitrator in a court other than under Sections 67 and 68. 60 There is no allegation that the contract was entered into under duress and there is no doubt that if the clause was validly incorporated into the contract, its effect would be to waive certain Article 6 rights’. 67 s. 69(7), Arbitration Act 1996 provides: On an appeal under this section the court may by order—(a) confirm the award, (b) vary the award, (c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the court’s determination, or (d) set aside the award in whole or in part. The court shall not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration. 68 s. 71(3), Arbitration Act 1996 states: Where the award is remitted to the tribunal, in whole or in part, for reconsideration, the tribunal shall make a fresh award in respect of the matters remitted within three months of the date of the order for remission or such longer or shorter period as the court may direct. 69 s. 67(2), ibid., states: (2) The arbitration tribunal may continue the arbitral proceedings and make a further award while an application to the court under this section is pending in rela- tion to an award as to jurisdiction.
VI Concluding Remarks
If a reform body were asked to reconsider Section 69, what might be taken to be the leading considerations in this field? Six aspects dominate:
(i) arbitral awards should be accorded finality (but, of course, this must not become a slogan precluding consideration of other factors); (ii) market forces dictate that the English law of arbitrate should be arranged so that it does not alienate potential international commer- cial custom; however, the 2006 report on the Arbitration Act 1996 states that a majority of respondents considered that appeals from arbitral tribunals to the High Court on points of English law should be retained.73
70 [2008] EWHC 2855 (Comm); [2009] 1 Lloyd’s Rep. 167. 71 Allianz SpA etc v. West Tankers (C-185/07) [2009] 1 A.C. 1138, E.C.J. 72 On that topic the leading discussion is now AES Ust-Kamenogorsk Hydropower Plant LLP v. Ust-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35, [2013] 1 W.L.R. 1889. 73 ‘Report (2006) on the Arbitration Act 1996’, at [66] to [69] (www.idrc.co.uk/aa96survey/ Report_on_Arbitration_Act_1996.pdf).
(iii) arbitration is a consensual mechanism; accordingly, due weight should be given to freedom of contract; this means that prospective parties to arbitration should remain free to choose non-English law as the applicable law,74 or to exclude the Section 69 judicial appeal on a point of English law,75 or positively to create a right of reference under Section 69;76 (iv) the absence of a true jurisdictional basis, or a failure of procedural fair- ness must be accorded greater weight than an error of law; this is reflected in the fact that the rights of challenge to an award under Sections 67 and 68 cannot be excluded by agreement; (v) an error of law might be regarded as more deserving of correction than an error of fact; (vi) appeals to the courts from commercial arbitration have proved a fer- tile source of enrichment of English contract law; many seminal cases have arisen into the daylight from the subterranean tunnels of the arbitral process.77
It is submitted that Section 69 strikes a sound balance. However, as explained below, the forum for judicial appeal should be the Court of Appeal, specially constituted to draw upon commercial expertise. Under Section 69, freedom of contract is respected in two respects: (i) par- ties can exclude this mechanism by clear language; (ii) conversely, parties can positively stipulate that appeal to the High Court should be a right if one party is tribunal’s decision on a point of English law. In the absence of (ii), the High Court is not bound to accede to an application for appeal on a point of English law. Instead the court must take into account the chances of the appeal
74 s. 82(1), Arbitration Act 1996; affecting scope of s. 69, Arbitration Act 1996; choice of sub- stantive law covered by s. 46(1), Arbitration Act 1996. 75 Shell Egypt West Manzala GmbH v. Dana Gas Egypt Ltd [2009] EWHC 2097 (Comm), Gloster J. 76 Royal & Sun Alliance Insurance plc v. BAE Systems (Operations) Ltd [2008] EWHC 743 (Comm); [2008] 1 Lloyd’s Rep. 712; [2008] 1C.L.C. 711; [2008] Bus. L.R. D127, per Walker J: ‘Finality is often regarded as a good thing. However parties to an arbitration may take the view that, as regards questions of law, finality should come from the court rather than from the arbitral tribunal’. 77 Notable examples include: Schuler (L) AG v. Wickman Machine Tool Sales Ltd [1974] A.C. 235, H.L. (contractual terms; conditions); Davis Contractors Ltd v. Fareham U.D.C. [1956] A.C. 696, H.L. (frustration); Transfield Shipping Inc v. Mercator, ‘The Achilleas’ [2008] UKHL 48, [2009] 1 A.C. 61 (remoteness of damages in contract law).
78 s. 69(3)(c), Arbitration Act states: ‘that, on the basis of the findings of fact in the award—(i) the decision of the tribunal on the question is obviously wrong, or (ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt…’ 79 Figures provided in the report by V.V. Veeder and A. Sander (2009), Schedule A, p. 8; report available at: (http://www.lmaa.org.uk/uploads/documents/First%20Interim%20Report %20Mance%2024%2005%202009.pdf).
Gian Andrea Danuser*
I The Accession of Switzerland to echr
In the beginning of the seventies of the last century Switzerland entered a period of big and fundamental changes in the field of law. The country which prides itself to be the oldest democracy in the world, finally, in March 1971, gave the right to vote and to election to the better half of their population, their women. In the beginning this was only on the level of the Confederation; until these rights were installed in all 26 Cantons of Switzerland it took another twenty years. Only one and a half years later, in December 1972, Switzerland signed the European Convention on Human Rights.1 The country, which in its founding document of 1291 had emphasized, not to accept foreign Judges, by this con- vention accepted the Jurisdiction of the European Court of Human Rights in Strasburg, which of course was a foreign one. I would like to illustrate the interaction of opinions and decisions between the European Court of Human Rights and the Swiss Federal Court over ques- tions of Judicial Independence in the field of criminal procedural law by means of analyzing a number of judgments of these courts. In the field of criminal procedural law the guaranties of Section I Art. 5 and Art. 6 of the Convention are of great importance. In connection with the question of judicial independence Art. 5 paras. 3 and 4 and Art. 6 para. 1 of the Convention are relevant and of special interest. We have the interesting situation, that within only two following articles of the Convention we find the
* Gian Andrea Danuser, Graduate in law of the University of Zurich, Switzerland, lic. iur. (University Zurich) 1971, clerk at Zurich District Court 1971, 1972, practicing barrister in Zurich since 1974, Secretary of the International Association of Judicial Independence and World Peace. 1 Mark E. Villiger, Handbuch der Europäischen Menschenrechtskonvention(EMRK), 2nd ed. Zürich 1999, pp. 22, 23.
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2 The following quotations and the translation into English are adopted from the case Schiesser v. Switzerland Series A vol. 34. 3 BGE 102 Ia 179 ff.
In regard to Article 5 para. 3, the Federal Court, having noted that there was a diffenrence of opinion amongst legal writers over the interpretation of this provision, stated:
The main criterion for classifying a given activity as’ judicial’ is the inde- pendence which the bodies acting in that capacity enjoy vis–à-vis other State authorities and other persons entrusted with functions relating to the administration of justice as well as vis-à-vis institutions and organisa- tions in the public sector…. (p. 180) However, the text of Article 5 para. 3 of the Convention demonstrates that it does not see the attributes of a judge or judicial independence in terms of the principle of separation of powers…. The only possible inter- pretation of this Article is that even bodies which are administrative by reason of their position meet the Convention’s requirements to the extent that they exercise judicial functions, that is, act independently when giv- ing decisions in that capacity. Thus, according to Article 5 para. 3……., what is above all decisive is not the place held in the organisation of the State but rather the function to be exercised. In other words, that provi- sion does not in principle preclude the simultaneous exercise by one and the same person of different functions, namely functions relating to investigation as well as functions in other areas of the administration of criminal justice…. (p. 181)
We can see, that even regarding that there was a difference of opinion amongst legal writers over the interpretation of Art. 5 para. 3 and that there was now possibly a “foreign judge” in Strasburg reviewing their judgments the self- confidence of the Judges of the Federal Court was perfectly intact, when they declared the there was only one possible interpretation of this article. As prac- ticing defence counsel with some experience we will not give too much weight to such statements, as we will see. In support of this interpretation, the Federal Court pointed out that, unlike paragraph 3 (art. 5–3), paragraph 4 of Article 5 (art. 5–4) uses the word “court.” A further argument was derived from Article 6 para. 1:
There is good reason to suppose that, had the authors of the Con vention wished to confer on an accused such an extensive guarantee as regards the independence and impartiality of the competent author- ity, they would have utilised in Article 5 para. 3 wording identical to that in Article 6 para. 1, namely an independent and impartial tribunal. (p. 182)
Turning to the powers of the District Attorney, the Federal Court noted that he is both an investigating authority (Ermittlungs – und Untersuchungsbehörde), under the supervision of the Public Prosecutor, and – in cases before a single judge or the District Court – a prosecuting authority. In the present case, the District Arrorney had acted as an investigating authority in which capacity Article 31 StPO required him to be equally thorough in gathering evidence in favour of and evidence against the accused. From this the Federal Court concluded:
It is of little consequence that the District Attorney is incorporated in the administrative hierarchy and thus constitutes an administrative author- ity by reason of his position in the organization of the State……..At the investigation stage, he in fact fulfills a judicial function and exercises no administrative activity…..Moreover, the rule on the election of District Attorneys by the people….shows that the legislature wished to secure for this body a measure of independence vis-à-vis the executive and the administration even as regards the procedure for appointment. (p. 183, 184) This view is not contradicted by the fact that, during the investigation, the District Attorney’s Office may receive from the Public Prosecutor’s Office directives concerning either the exercise of his activities in general or a specific case (opening, conduct and closure of the investigation)…. What is decisive is that, when acting as a supervisory body during the investigation, the Public Prosecutor’s Office as well is carrying out a judi- cial function of investigation; it is only if and when the case is sent for trial that that Office assumes its role of prosecutor and thereby becomes a party to the proceedings. (p. 184)
When we reflect on these considerations we must remind ourselves that crimi- nal procedural law in continental Europe, unlike the tradition of common law, was deeply rooted in a tradition of the Inquisition and the principles of Art. 6 para. 1 of the Convention, which include the right to equality of arms, a prin- ciple which is most important in criminal proceedings, were at the time not yet very well implemented in Switzerland and other countries of the European continent. The court ruled that under Article 5 § 3 there is both a procedural and a substantive requirement. The procedural requirement places the “officer” under the obligation of hearing himself the individual brought before him; the substantive requirement imposes on him the obligations of reviewing the cir- cumstances militating for or against detention, of deciding, by reference to
“…….the court has to ascertain only whether the said Attorney possessed the attributes of an, officer authorised by law to exercise judicial power.” p. 25. To sum up, the, officer ‘is not identical with the, judge’ but must never- theless have some of the latter’s attributes, that is to say he must satisfy certain conditions each of which constitutes a garantee for the person arrested. p. 31. The first of such conditions is independence of the executive and of the parties. This does not mean that the ‘officer’ may not be to some extent subordinate to other judges or officers provided that they them- selves enjoy similar independence. In addition, under Article 5 para. 3, there is both a procedural and a substantive requirement. The procedural requirement places the, officer under the obligation of hearing himself the individual brought before him; the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of decid- ing, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons. Mr. Schiesser and the minority of the Commission maintain that the District Attorney does not provide the necessary guarantees of indepen- dence and that this is so for two reasons: firstly, he acts in certain cases as a prosecuting authority; secondly, he is subordinate to the Public Prosecutor’s Office and through that Office, to the Department of Justice and the Government of the Canton Zurich. p. 33.
In regard to the first point (prosecution), the Court emphasises that in the present case the District Attorney intervened exclusively in his capacity as an investigating authority (p. 34),…………..He did not assume the mantle of
4 Schiesser v. Switzerland Series A vol. 34 para. 19.
The Court is therefore of the opinion that the Winterthur District Attorney offered in the present case the guarantees of independence and the procedural and substantive guarantees inherent in the notion of, offi- cer authorised by law to exercise judicial power. There has accordingly been no breach of Article 5 para. 3. (p. 38)
For these reasons the court held by five votes to two that there has been no breach of Article 5 para. 3 In his dissenting opinion Judge Ryssdal quoted that “it is a fundamental principle that prosecution and judiciary should be separated. I think that this principle should be applied also in the interpretation of Article 5 para.3. of the convention and that an officer who acts as a public prosecutor cannot be regarded as an, officer authorised by law to exercise judicial power’, within the meaning of Article 5 para. 3.”5 Judge Evrigenis stated in his dissenting opinion: “To entrust the power of decision regarding detention on remand to an authority which numbers amongst its powers that of a prosecuting authority would be contrary to the Convention. It is immaterial whether or not in a given case this authority is called on to exercise the two kinds of power. Their incompatibility is inherent in the system itself and divests the authority in question of the legal and psy- chological attributes of independence, objectivity and impartiality that must be possessed by the authority to which Article 5 para. 3 entrusts the fate of a person deprived of his liberty.”6
5 Annex to Schiesser v. Switzerland Series A vol. 34. 6 Annex to Schiesser v. Switzerland Series A vol. 34.
I think it is remarkable that Judge Evrigenis mentioned the psychological attributes of independence, which in this bipolar situation he does not see guaranteed. In the case De Cubber v. Belgium the European Court of Human Rights (Chamber) found on 26 October 1984 that an investigating judge could not sit on the bench of the trial judges because relating to the functions exercised and to internal organisation (the objective approach) the impartiality could be doubted. In this regard even appearances may be important. It found that Mr De Cubber was the victim of a breach of Article 6 para. 1.7 After that in its decision of 4 June 1986 the Swiss Federal Court (Public-Law Chamber) changed its jurisprudence in regard of Art. 58 of the Federal Constitution and of Art. 6 para. 1 of the Convention by refer- ring explicitly to the De Cubber case. It held that in the future the function of investigating judge and trial judge could not be exercised by the same judge in the same proceeding. That the impartiality must be judged according to objective criteria which are proper to exclude even the appearance of partiality.8 This jurisprudence has been confirmed by the Federal Court in 1987 and 1988.9 In the latter case the Federal Court referred several times specifi- cally to the jurisprudence of the European Court of Human Rights, taking over sometimes literally the wording of the echr.10 I go back to Article 5 para. 3 of the Convention. In the case Huber v. Switzerland the Court (Plenary) decided on 23 October 1990 under Judge Ryssdal as President with 21 votes to one that there was a breach of Article 5 para. 3 of the convention because the same Zurich District Attorney in the same case first acted as “officer authorized by law to exercise judicial power” and later as a Prosecutor.11 Only some days after this judgment the Zurich Court of Appeal ordered with an ordinance the instalment of a single judge (independent of the prose- cuting authorities) to make the decisions on detention on remand. Later the Zurich Code of Criminal Procedure of 1991 installed the same sin- gle judge in § 61 to decide on detention on remand.12
7 De Cubber v. Belgium Series A, vol. 86 para. 30, 35. 8 BGE 112 Ia 290, 294. 9 BGE 113 Ia 172 ff. and BGE 114 Ia 50 ff. 10 BGE 114 Ia 54, 56, 60, 65. 11 Series A vol. 188 para. 42, 43. 12 Mark E. Villiger, op. cit. p. 224, N. 357.
II Conclusion
Since 1 January 2011 Switzerland has a Code of Criminal Procedure which is valid for the whole Confederation and detached the 26 Codes of Criminal Procedure of the Cantons. Article 225 of this code assigns a court to decide on detention on remand.13 Under the influence of the Jurisprudence of the European Court of Human Rights many Swiss Cantons as well as many European countries had to change their Constitution of the Courts acts to fulfil the requirements of the Convention and to take a step forward and away from their inquisitorial tradition.14
13 Swiss Code of Criminal Procedure of fifth October 2007, SR 312.0. 14 Niklaus Schmid, Strafprozessrecht, Eine Einführung auf der Grundlage des Strafprozessrechtes des Kantons Zürich und des Bundes, fourth ed., Zürich 2004, p. 245, N. 696.
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chapter TWENTY-FIVE Recent Developments in Judicial Elections in the United States and their Impact on the Impartiality of Judges*
Chandra R. de Silva**
I Introduction
Writing on impartiality in 1966, Jeffrey M. Sharman emphasized that “Judges are expected to be impartial arbiters so those legal disputes are decided accord- ing to the law free from the influence of bias or prejudice, or political pres- sure.”1 Writing some forty years later, Sarah Cravens agreed, “At the most basic level, the judge’s task is to decide cases according to the law, and therefore implicitly, not according to something else, whether that ‘something else’ be personal bias, agenda, whim, or any of a number of other unacceptable bases. This is what is typically or conventionally meant by ‘impartiality’.”2 Yet, the issue might not be as simple as that. While judges are expected to be open to the claims of all disputants, such openness might be constrained by legal and societal values enshrined in a particular set of laws. As William Lucy has pointed out “impartiality in adjudication, like impartiality elsewhere, exists within the context of partiality: in the case of judges, it is partiality to the rules, standards and values that constitute the legal system. There is no guarantee that these rules, standards and values will always be morally and politically respectable.”3 Also, judges sometimes interpret and apply loosely defined legal
* I am most grateful for the comments and suggestions on the first draft of this paper by my Old Dominion University colleague, Elizabeth Esinhart. ** Professor of History and Vice Provost for Faculty Development at Old Dominion University. He has written extensively on contemporary education, ethnicity, politics and law. 1 Jeffrey M. Sharman, Judicial Ethics: Independence, Impartiality, and Integrity, National Center for State Courts, Williamsburg, VA 1966, p. 15. 2 Sarah M.R. Cravens, Impartiality: Balancing Personal and Professional Integrity in Judicial Decisionmaking, in Professional Ethics and Personal Integrity, 21–43 (Tim Dare and W. Bradley Wendel eds., Cambridge Scholars 2010) Viewed at http://works.bepress.com/cgi/viewcontent .cgi?article=1001&context=sarah_cravens Quotation from p. 2). 3 William Lucy, The Possibility of Impartiality, Oxford Journal of Legal Studies, 25 (1), 2005, p. 15.
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4 For an overview see Laurence Baum, American Courts: Process and Policy, Fourth Edition, Boston: Houghton Mifflin, 1998, pp. 114–131. 5 In these states, State Governors are normally empowered to make interim appointments until the expiration of the term. 6 The American Judicature Society provides an analysis of appointment and retention methods state by state. See http://www.judicialselection.us/judicial_selection/methods/ selection_of_judges.cfm?state=.
“announce” their views on disputed legal and political issues.7 The second, Citizens United v. Federal Election Commission,8 decided eight years later, impacted the issue of campaign contributions. Combined with some related developments such as the growth of the political partisan divide, these two decisions have stimulated a continuing debate on the impartiality of judges in state courts in the US, particularly in the case of the states which use elections for the appointment and re-election of judges.9
II Background: Minnesota v. White (2002) and Citizens United v FEC (2010)
Since 1858, the Minnesota State Constitution has provided for the selection of all state judges by popular election.10 After 1912, these elections have been non- partisan, and after 1974, they have been subject to a legal restriction which states that a “candidate for a judicial office, including an incumbent judge,” shall not “announce his or her views on disputed legal or political issues.”11 This prohibition, designed to ensure the appearance of impartiality among judges, is known as the announce clause. Those who violated this ban were subject to penalties.12 In June 2002, the US Supreme Court in Republican Party of Minnesota v. White, in a five-to-four decision, invalidated the announce clause. Before the issue was brought before the US Supreme Court, both the district court and the Eighth Circuit Court had accepted that the Minnesota “announce clause” was enacted as a justifiable attempt to preserve both the actual impartiality of judges and the appearance of impartiality of the state judiciary, and in addition, was narrowly tailored, and served a “compelling
7 536 U.S. 765 (2002). 8 558 U.S. 50 (2010). 9 The 31 states which use elections to appoint at least some of their judges include Alabama, Arizona, Arkansas, California, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Washington, West Virginia and Wisconsin. In addition, the following eight states use elections solely to decide whether judges should retain their position: Alaska, Colorado, Iowa, Kansas, Maryland, Nebraska, Utah and Wisconsin. 10 Minnesota Constitution, Art. VI, § 7. 11 Canon 5 of the Minnesota Code of Judicial Conduct. 12 Minnesota Rules of Board on Judicial Standards 4(a)(6), 11(d) (2002); Minnesota Rules of Professional Conduct 8.2(b) (2002); Minnesota Rules on Lawyers Professional Responsibility 8–14, 15(a) (2002).
13 Republican Party v. Kelly, 63 F.Supp.2d 967, 974–83 (D.Minn. 1999). 14 536 U.S. 765 (2002) 775–783. For analyses of the decision see Brendan H. Chandonnet, The Increasing Politicization of the American Judiciary: Republican Party of Minnesota v. White and its Effects on Future Judicial Selection in State Courts, William & Mary Bill of Rights Journal, 12, pp. 577–604, (2004), http://scholarship.law.wm.edu/wmborj/vol12/ iss2/9; Ofer Raban, Judicial Impartiality and the Regulation of Judicial Election Campaigns, University of Florida Journal of Law & Public Policy, 15, pp. 205–228, (2004), http://law.uoregon.edu/assets/facultydocs/ofer/judicialimpartialityandjudicialelections .pdf; Ofer Raban, The Supreme Court’s Endorsement of a Politicized Judiciary: A Philosophical Critique, Journal of Law in Society, 8, 114 (2007),http://law.uoregon.edu/ assets/facultydocs/ofer/scendorsementofpoliticizedjudiciary.pdf. 15 Wersal had criticized some Minnesota Supreme Court decisions on crime, abortion and welfare when contesting a previous election for associate justice of the Court in 1996. A complaint filed against Wersal with the Board of Lawyers Professional Responsibility, charging that he violated the announce clause was dismissed, but Wersal gave up his campaign in that year. 16 536 U.S. 765 (2002) 784–788.
III Implications
There is no doubt that special restrictions on judicial candidates deny them opportunity to speak about some of the questions that may be most significant to their candidacies. As Richard Briffault points out, “If candidates cannot speak freely about contested legal issues, work with their parties, and raise money personally, their ability to campaign effectively may be undermined…. These restrictions may make it more difficult to get the public interested in judicial campaigns. This burden weighs particularly heavily on challengers, who are likely to lack even the limited name recognition that the incumbents enjoy. The less the candidates can say or do, the less competitive the elections
17 Bipartisan Campaign Reform Act (bcra) of 2002, 2 U.S.C. § 441b; several parts of the bcra were challenged but upheld in the case of McConnell v. FEC 540 U.S. 93 (2003). 18 Citizens United was founded by Floyd Brown who in 1988 led the political action commit- tee that produces the Wille Horton commercial to support George Bush’s presidential campaign. In 1992, Brown he hired David Bossie who became president of Citizens United in 2000. 19 Citizens United v. FEC, 558 US 50. For an account of how the decision was reached, see Jeffrey Toobin, Money Unlimited: How Chief Justice Roberts orchestrated the Citizens United decision, The New Yorker, May 21, 2012, pp. 36–47.
20 Richard Briffault, “Judicial Campaign Codes After Republican Party of Minnesota v. White,” Columbia Public Law & Legal Theory Working Papers, Paper 0481. (2004) p. 197 http://lsr .nellco.org/columbia_pllt/0481. 21 Briffault, Ibid. 22 David A. Schultz, Judicial Selection in Minnesota: Options After Republican Party v. White, Bench & Bar of Minnesota, 62(10) (2005), http://www2.mnbar.org/benchand- bar/2005/nov05 For evidence relating to earlier periods see G. Alan Tarr, Judicial Process and Judicial Policymaking, Belmont, Third Edition, CA: Thompson Wadsworth, 2003 pp. 62–64. 23 Briffault, Ibid, pp. 199–200. “Judging is political, but it still must be undertaken apart from politics.” Ibid, p. 201.
24 John A. Ferejohn & Larry D. Kramer, Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint, New York University Law Review, 77, p. 962 (2002). 25 Robert C. Bemess, Note, Norms of Judicial Behavior: Understanding Restrictions on Judicial Candidate Speech in the Age of Attack Politics, Rutgers Law Review, 53 p. 1027 (2001). 26 See Brian K. Arbour and Mark J. McKenzie, Campaign Messages in Lower Court Elections after Republican Party of Minnesota v White, The Justice System Journal, 32(1), 2011, pp. 1–32. 27 Donald L. Burnett, A Cancer on the Republic: The Assault Upon Impartiality of State Courts and the Challenge to Judicial Selection, Fordham Urban Law Journal, 34 265–290 (2001) esp. 283–287; Seth Andersen, Examining the Decline in Support for Merit Selection in the States, Albany Law Review, 67, pp. 793–804 (2004). 28 See for instance, Chris W. Bonneau and Melinda Gann Hall, In Defense of Judicial Elections, New York, Routledge, 2009. 29 See, James Sample, David Pozen and Michael Young, Fair Courts: Setting Recusal Standards, Brennan Center for Justice, 2008, fn. 35 http://www.brennancenter.org/ content/resource/fair_courts_setting_recusal_standards/.
30 See the North Carolina Code of Judicial Conduct, Canon 7 (amended Apr. 2, 2003) and the Georgia Code of Judicial Conduct, Canon 7B (amended Jan. 7, 2004). 31 Canon 5 B (1) (as amended Dec. 22, 2003); for a discussion see Chandonnet, op. cit. pp. 596–601. 32 F.3d 738 (8th Cir. 2005) at 755–756, 759, 761–762. 33 309 F.3d 1312 (Ga. 2002).
While White widened the scope of political debate in judicial elections, Citizens United enabled an increased flow of funds into the arena of judicial elections. To be fair, judicial elections had been becoming increasingly expen- sive even before Citizens United. Spending on State Supreme Court elections rose from $83.3 million in 1990–1999 to $206.9 million in 2000–2009.34 This is not attributable solely to loosening restrictions on judicial candidates by White. As Gibson pointed out, state court elections had increasingly become the scene of contests with major political social and economic consequences.35 However, the 2010 Citizens United decision opened up a new dimension. It was now possible for non-candidate groups to raise unlimited funds from corpora- tions to wage campaigns as long as they were ostensibly not connected to the campaign of the judicial candidate. The total amount of funding on state high court elections in 2009–10 did not rise, and this might be because it was too early for Citizens United to have much of an impact on the 2010 elections. However, even in 2009–10, groups with no accountability to candidates spent 29.8% of the funds (as against about 18% in 2005–06) and retention elections saw a substantial increase in campaign expenses. Costly television advertisements have now become essential to win judicial elections in many states.36 Given the increased flow of corporate cam- paign contributions to groups not officially associated with the individual campaigns in the Presidential Election of 2012 as opposed to that of 2008, a
34 Adam Skaggs and Andrew Silver, Promoting Fair and Impartial Courts through Recusal Reform, Brennan Center for Justice, August 2011, p. 8 http://brennan.3cdn.net/ 09c926c04c9eed5290_e4m6iv2v0.pdf Skaggs and Silver also point out that “Twenty of the 22 states that hold competitive elections for judges set all-time spending records in the last decade. Meanwhile, a select group of ‘super spenders’ is outgunning small donors: in 29 of the costliest elections of the last decade, the top five spenders each averaged $473,000 per election to install judges of their choice, while all other contributors aver- aged only $850 apiece. Finally, a television advertising arms race has arisen, creating a need for money that only special interests can satisfy. In 2007–08, $26.6 million was spent on TV ads in elections for state high courts, the record for a two-year election cycle. In 2008, special interest groups and political parties paid for 52% of all television advertising — and 87% of negative TV ads.” 35 James Gibson, Challenges to the Impartiality of State Supreme Courts: Legitimacy Theory and “New-Style” Judicial Campaigns, American Political Science Review, 102(1), February 2008, pp. 59–75. 36 Adam Skaggs, Maria de Silva, Linda Casey and Charles Hall, The New Politics of Judicial Elections 2009–10: How Special Interest “Super Spenders” Threatened Impartial Justice and Emboldened Unprecedented Legislative Attacks on America’s Courts, Brennan Center for Justice, 2011, pp. 9–10.
37 Utah’s Rule 2.11(A) (4) adopted effective April 1, 2010. 38 Skaggs and Silver, op. cit., pp. 9–12. In New York and California, these limits do not extend to funding for groups not directly connected with individual campaigns. Oklahoma, Iowa, Missouri, Michigan and Washington have also adopted rules on disqualifications. 39 William Danielczyk Jr and Eugene Biagi, formerly were officers with two investment banks, Galen Capital Group LLC and Galen Capital Corporation. They were indicted in 2011 on charges that they used Galen funds to reimburse people more $186,000 in contributions to Clinton’s 2006 Senate race and 2008 presidential campaign. http://newsandinsight.thomsonreuters.com/Legal/News/2012/06__June/Appeals_court _upholds_ban_on_corporate_political_contributions/.
40 F.3d 738 (8th Cir. 2005). 41 Sample, Pozen and Young, op. cit., p. 16; See also Raban, Judicial Impartiality, op. cit. pp. 222–225. 42 Vernon Parmer and John Levendis, The Louisiana Supreme Court in Question: an Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function, Tulane Law Review, 82, p. 1291 (2008). 43 Adam Liptak & Janet Roberts, Campaign Cash Mirrors a High Court’s Rulings, New York Times, October 1, 2006, at A1. For other studies see Sample Pozen and Young, op. cit. pp. 11–12 and Michael S. Kang and Joanna Shepherd, The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions, New York University Law Review, 86, 69 (2011).
IV The Way Forward
One approach to restoring public confidence is strengthening the norms for disqualification and recusal. Rule 2.11(A) of the ABA’s Model Code of Judicial Conduct states “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” and this stan- dard is adopted in 47 of the 50 states.49 In a third of the states, litigants may disqualify a judge without showing cause. The extension of the right to peremp- tory disqualification to all states has been advocated by some scholars as a step in the right direction.50 In many states, motions for disqualification are seldom
44 For detailed poll data see http://www.justiceatstake.org/resources/justice. 45 Ofer Raban, Institutionalizing Corruption: Citizens United, Its Conceptions of Political Corruption, and the Implications for Judicial Elections Campaigns, University of South Florida Law Review, 46, pp. 479–502, (2011). http://law.uoregon.edu/assets/facultydocs/ ofer/raban.pdf. 46 Larry Aspin, Trends in Judicial Retention Elections, 1964–1998, Judicature, 83, 1999, pp. 79–81; Melinda Gates Hall, State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform, American Political Science Review, 95, 2001, 317–319. 47 Skaggs, de Silva, Casey and Hall, op. cit., p. 9. 48 Andy Barr, Michele Bachmann Calls Judges “Black- Robed Masters” in Iowa, Politico (March 23, 2011), available at http://www.politico.com/news/stories/0311/51847.html. 49 The exceptions are Michigan, Montana, and Texas, see Sample Pozen and Young, op. cit. pp. 16–18. 50 Sample, Pozen and Young, op. cit., p. 6.
51 Skaggs and Silver, op. cit. p. 2. See also Sample, Pozen and Young, Ibid. 52 Dmitry Bam, Making Appearances Matter: Recusal and the Appearance of Bias, Brigham Young University Law Review, 2011, p. 950. 53 Ibid., p. 979. 54 Ibid., pp. 948–9. 55 Skaggs and Silver, op. cit., p. 15; Sample, Pozen and Young, op. cit., p. 6.; Bam, op. cit., p. 985. 56 Ian Ayres & Jeremy Bulow, The Donation Booth: Mandating Donor Anonymity to Disrupt the Market for Political Influence, 50 Stanford Law Review, 50, pp. 837, 853 (1998). 57 Skaggs, de Silva, Casey and Hall, op. cit., p. 30.
58 Suzanne di Pietro, Teresa W. Carns and William T. Cotton, Judicial Qualifications and Judicial Performance: Is there a Relationship? Judicature, 85, 2002, pp. 218–226. 59 See article on the vulnerability of judges to five common cognitive illusions by Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich, Inside the Judicial Mind, Cornell Law Review, 86, 2001, p. 777. 60 Justin Levitt, Confronting the Impact of Citizens United, Yale Law and Policy Review, 29, 2010, p. 224. 61 Peter D. Webster, Selection and Retention of Judges: Is there one “best” method?, Florida State University Law Review, 23, 1995, p. 15; Laurence Baum, Electing Judges in Contemplating Courts, ed. Lee Epstein, Washington DC: Congressional Quarterly Press, 1995, p. 42. 62 Michael S. Kang, After Citizens United, Indiana Law Review, 44, 2010, pp. 243–254.
Dmitry Maleshin**
I Introduction
Several events have occurred at the turn of the century that have affected legislation as well as doctrine. They have occurred not only in the field of law, but also in other spheres: economics and culture, in the context of integration and globalization. This process affected different legal branches aside from civil procedural law: first, it affected legislation, the English Woolf reform serv- ing as a good example; and second, it affected doctrine, as seen by the European soft slide towards several common law constructions. Dramatic legal changes in post-Soviet countries are good illustrations of this process as well. Civil procedure in different parts of the world is under great pressure because of cultural diversity. This process became very impressive during the last decades. While legislation became very similar in Europe and Asia, there is a big gap in the real practice of civil justice between Europe and Asia and other parts of the world. Globalisation is not a good word to use with respect to law and civil procedure, although in the contemporary highly interactive and cooperative world, national frontiers in law and civil procedure become very transparent. On the other hand, national character has become much more
* This article is based on the ideas presented by the author on March 22, 2012 in the report “Globalisation of Civil Procedure” on the conference “The International Conference of Judicial Independence and Globalisation” organized by City University of Hong Kong. ** Professor of Civil Procedural Law at Moscow State Lomonosov University. He has been a Visiting Scholar at Yale Law School (2004) and Harvard Law School (2008). He is a mem- ber of the Council of International Association of Procedural Law and the International Law Association Civil Litigation Committee; International Society of Legal Scholars; Russian Association of International Law; etc. Member of a number of official drafting groups concerning civil procedure and education legislation. Member of Academic coun- cil of Federal Bailiff Service, Federal Notary Public Chamber, Moscow Arbitrazh Court, etc. Author of more than 100 academic publications in Russian, English and French. He has written on Russian civil procedure, comparative civil procedure, law and culture.
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II Cultural Influence on Civil Procedure
Most of you I think could accept my view that civil procedural legislation in different countries begins to be very similar. Good examples are Japan as well as some other countries in East Asia. Legislation there takes its roots in the German Code of Civil Procedure of 1877. But if we are considering practice in Germany and Japan, we should also state that there are two different systems. We can’t even compare them even though legislation is very similar. What is the reason? From my point of view, the main reason is the legal culture. It differs in Germany and Japan. That’s why practice is different too. Culture influences the process of law enforcement, and as a result we have dif- ferent civil procedural systems. At the same time, in most classical works Japan belongs to the civil law system, but as we have ascertained the differences in legal culture, it is not correct. The link between culture and civil procedure is the following: culture – legal culture – practice – civil procedural system. Law is a form of social control,1 but
1 Pound R., An Introduction to the Philosophy of Law. New Haven. 1925; Vago S., Law and Society. New Jersey. 2003. P. 4, 19; Cairns H., The Theory of Legal Science. New York. 1941. P. 22.
2 L.M. Friedman, Legal Culture and Social Development, 4 Law and Society Review. (1969) P. 43. 3 See, e.g.: Purdy J.M., Common Law and Colonized Peoples. Aldershot. (1997). 4 See: Oloruntimehin O., The Status of Informal Social Control and Dispute Resolution – An anal- ysis of African Societies in Sebba L. (ed.), Social Control and Justice. Jerusalem. 1996. P. 332–342.
5 Vago S., Law and Society. New Jersey. (2003). P. 3. 6 Kim C., Lawson C.M., The Law of the Subtle Mind: the Traditional Japanese Conception of Law in Varga C. (ed.), Comparative Legal Cultures. New York. 1992. P. 282. 7 Chase O.G., Law, Culture, and Ritual. Disputing Systems in Cross-Cultural Context. New York. 2005. P. 2. 8 Chase O.G., American “Exceptionalism” and Comparative Procedure, 50 American Journal of Comparative Law. (2002). P. 278. 9 W.L.F. Felstiner, Influences of Social Organization on Dispute Processing, 9 Law and Society Review. (1974). P. 63. 10 Kim C., Lawson C.M., The Law of the Subtle Mind: the Traditional Japanese Conception of Law in Varga C. (ed.), Comperative Legal Cultures. New York. (1992). P. 275, 290–294. 11 Black D., Sociological Justice. New York, Oxford. (1989). P. 85.
Japan and Germany are just two of the examples. There are many others that also demonstrate the role of legal culture. Most of the national reports of our session give us concrete facts and examples. Similar to Japan is the situation in China. Three philosophical traditions affect the legal regulations in China: the Confucian, the Legalist, and the Buddhist.12 According to Confucian ethics, disputes should be settled privately, involving third parties. If the disputants do bring their problem to court, the assumption is that both of them are being stubborn, uncompromising people who are unable to sacrifice their personal interests for the peace of the com- munity. Therefore judicial proceedings are unpleasant for most people, and they try to avoid them.13 Moreover in China until the end of the nineteenth century, the term “rule of law” had a negative connotation.14 In African societies 60% of all disputes are settled through informal means such as third party mediation by members of the family, friends, neighbors, ward heads, chiefs, etc.15 There are different reasons for this. First, they are scared of the legal process and try to avoid it. Second, the legal process is too time-consuming. Third, they have no confidence in the legal system. In some counties dualistic system exists. Native ethnic groups settle disputes through the use of customs, which differ from the law applied at the center.16 The most significant example of how culture could affect civil procedure is the Russian legal system. Russian civil procedure is not simply a continental or Anglo-Saxon system possessing only classical civil and common law features, but a unique system possessing exceptional features that do not exist in either of these traditional approaches.17 There were different periods in Russia’s history when lawmakers introduced continental or Anglo-Saxon features of civil procedure. For example, the 1864 Imperial Code introduced the common law passivity of the court in the pro- cess of proof-taking. The Soviet civil procedure should be viewed as a radical solution to the continental model. In 1995, the common law passivity of the court was re-introduced, but only remained in effect until 2002.
12 Lee L.T., Lai W.W., The Chinese Conceptions of Law: Confucian, Legalist, and Buddhist in Varga C. (ed.), Comperative Legal Cultures. New York. (1992). P. 225–247. 13 Bracey D.H., Exploring Law and Culture. Long Grove. (2006). P. 35. 14 Bracey D.H., Exploring Law and Culture. Long Grove. (2006). P. 35. 15 Oloruntimehin O., The Status of Informal Social Control and Dispute Resolution – An analy- sis of African Societies in Sebba L. (ed.), Social Control and Justice. Jerusalem. 1996. P. 338. 16 L.M. Friedman, Legal Culture and Social Development, 4 Law and Society Review. (1969) P. 31. 17 See Maleshin D., The Russian Style of Civil Procedure, Emory International Law Review Vol. 21 No. 2 (2007). P. 543–562.
Disrespect of the rule of law in Russia has been noted by many scholars.18 However, I believe the reason for it is not unwillingness of Russian citizens to obey rules of law, but the conflict between the legislation and the social rela- tions of the society. The law can’t be simply exported and imported. It is always necessary to take into account cultural specificity of a society. Yet Montesquieu noted that “laws should be in such compliance with features of nation, for which they are made, that only in very rare cases laws of one nation might become applicable for another.”19 It is noted by many researchers that there is a strong connection between culture and law,20 especially civil procedural law.21 In the modern environment, in the epoch of globalization and creation of the multi-polar culture, this method becomes especially important. The tasks of the modern Russian legislator are to conduct detailed research about the moral ideas of the Russian citizens and to create rules of law which reflect the demands of both the society as a whole and its individual members. Russian law should take into account both individualistic and collectivistic traditions, as well as ideas and moral views that exist in Russian
18 See, C. Hendley, Rewriting the Rules of the Game in Russia: The Neglected Issue of the Demand for Law, East European Constitutional Review. Vol. 8. (1999) P. 94; C. Hendley, “Demand” for the Law in Russia – A Mixed Picture, 10 East European Constitutional Review (2001) P. 72–77; V.A. Tumanov, О правовом нигилизме [On the legal nigilisme], Советское государство и право [Soviet state and law], No. 10, (1989). P. 21. 19 [Montesquieu], De l’esprit des loix, ou du rapport que les loix doivent avoir avec la Constitution de chaque Gouvernement, les Meurs, le Climat, la Religion, le Commerce, &c. A quoi l’Auteur a ajoute des recherches nouvelles sur les Loix Romaines touchant les succes- sions, sur les Loix Francoises & sur les Loix Feodales. (M.DCC.XLIX). 20 See, e.g. R.C. Post, Fashioning the Legal Constitution: Culture, Courts and Law, Harvard Law Review. Vol. 117. (2003). P. 52–56; 80–86; D. Nelken, J. Feest (ed.), Adapting Legal Cultures, (2001), P. 4. 21 Works reflecting this approach include: O.G. Chase, Law, Culture, and Ritual: Disputing Systems in Cross-Cultural Context, (2005); O.G. Chase, Culture and Disputing, 7 Tulane Journal of International and Comparative Law (1999) P. 81–90; O.G. Chase, Some Observations on the Cultural Dimension in Civil Procedure Reform, 45 American Journal of Comparative Law, Vol. 4, (1997), P. 861–870; M. Taruffo, Transcultural Dimensions of Civil Justice, 23 Comparative Law Review (2000); S.N. Subrin, Discovery in Global Perspective: Are We Nuts, 52 DePaul Law Review, (2002), P. 312; T.O. Main, Global Issues in Civil Procedure. (2006). P. 5. The importance of this issue was also emphasized at different con- ferences. See, e.g. XII Word Congress on Procedural Law, Mexico, September 2003; Colloquium of the International Association of Procedural Law, Tulane University, October 1998; Colloquium of the European University Institute, Badia Fiesolana, May 1977 (See, M. Cappelletti (ed.), New Perspectives or a Common Law of Europe, (1978)).
22 See Maleshin D., Some Cultural Characteristics of the New Russian Code of Civil Procedure of 2002, 10 Zeitschrift für Zivilprozess International. (2005). P. 385–389 (in English); Maleshin D., La reforme de la Procedure Civile Russe, Revue Internationale de Droit Compare. No. 3 (2007). P. 673–683 (In French); Maleshin D., О Novo Codigo De Processo Civil Russo de 2002, 121 Revista De Processo. (2005). P. 159–165 (in Portuguese). 23 See, e.g. Berman H, Justice in the U.S.S.R. An Interpretation of Soviet Law, (1963). P. 216. 24 See, Cappelletti M., Social and Political Aspects of Civil Procedure – Reforms and Trends in Western and Eastern Europe, 5 Michigan Law Review. Vol. 69. (1971) P. 875. 25 Sypnowich C., The Concept of Socialist Law, (1990). P. 155. 26 See Treushnikov, Grajdaski process [The Civil Procedure], (2006). P. 15.
III Culture as Factor of Judicial Independence Diversity
The above analysis demonstrates that culture is one the most important fac- tors that determines the specifics of civil procedure. It affects practice and forms a national character of civil procedure. That’s why legal culture is the most important criteria for the civil procedure. Using these criteria, we should sort two types of civil procedure: individual- istic and collectivistic. They correlate with two widespread cultural models. The first one is based on individualism; the other on collectivism.28 Collectivism is defined as a moral principle that asserts the priority of the group over that of the individual or as a social organization in which the individual is seen as being subordinate to a social collectivity such as state or nation.29 Individualism is defined as a moral principle that stresses the self-directed, self-contained,
27 H. Jacob et al., Courts, Law and Politics in Comparative Perspective. (1996). P. 4. 28 See, e.g. D.G. Myers, Social Psychology, (2001); M. Calenkamp, Individualism verus Collectivism, (1993); M.H. Thompson, Individualistic and Collectivistic Liberty, 37 Journal of Philosophy. No. 14. (1940). P. 382–386. 29 See, Graig Calhoun (ed.), Dictionary of the Social Science, (2000). P. 78; The Encyclopedia Americana. International edition, Vol. 7. (1997). P. 239; The New Encyclopaedia Britannica, Vol. 3. (2002). P. 453.
30 See, Graig Calhoun (ed.), Dictionary of the Social Science, (2000). P. 228; The Encyclopedia Americana. International edition, Vol. 15. (1997). P. 69; The New Encyclopaedia Britannica. Vol. 6. (2002). P. 295. 31 See, J. Crittenden, Beyond Individualism. Reconstructing the Liberal Self. (1992). P. 77. 32 See, e.g. P. Sandevoir, Introduction au droit. (1991); J.-L. Bergel, Theorie generale du droit, (1985). 33 See, e.g. F. Cosentini, La societe future, individualisme ou collectivisme? (1905).
Sophie Turenne*
Upon advertising three vacancies at the uk Supreme Court in the autumn of 2012, the Selection Commission thus acknowledged the interactions between the Court’s workload and its appointment criteria: “in making recommenda- tions [the Commission] will bear in mind the nature of the court and the way it is likely to develop over the next few years.”1 On a narrow reading, the Commission was keen to bear in mind the expertise of the Court – whether there is an IP specialist at the Court, for example. A more apt, yet more contro- versial reading is that there must be some fit between the scope of a Supreme Court’s function in constitutional adjudication and the method of judicial appointments, in order to account for an unelected court acting as guardian of the constitution over an accountable political branch. This is more controver- sial because the creation of the uk Supreme Court under the Constitutional Reform Act 2005 did not correspond to any intention to create a constitutional court. It was mainly aimed at giving proper effect to the principle of separation of powers, under the influence of the European Convention of Human Rights.2 In this short piece, we discuss the interactions between the constitutional role of the uk Supreme Court today and the judicial selection process for appoint- ment to the uk Supreme Court. We suggest that the current process and crite- ria for appointments ensure the right balance between merit and democratic accountability – for the time being.
* M.A. (Cantab.), Ph.D. (Paris II Panthéon-Assas), Associate Lecturer, Faculty of Law, University of Cambridge; Fellow of Murray Edwards College. Dr Turenne’s publications include Le juge face à la désobéissance civile. Etude en droits américain et français comparés (2007) and Judges on Trial. The Independence and Accountability of the English Judiciary (2013), co- authored with Shimon Shetreet. 1 See http://www.supremecourt.uk/news/selection-commission-121016.html (last checked on 7 April 2014). 2 A. Le Sueur, “From Appellate Committee to Supreme Court: A Narrative” in L. Blom-Cooper, B. Dickson and G. Drewry (eds.), The Judicial House of Lords 1876–2009 (Oxford 2009), p. 64.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_028
I Is the Court a “Constitutional” Court?
The uk Supreme Court has the exact jurisdiction that the judicial House of Lords had. It is not a distinct court dealing with constitutional matters as such, unlike, for example, the French Constitutional Council. A recent comparative study suggests that the introduction of a specialist constitutional court offers a new power of the state, which is placed outside the judicial branch, and whose members are selected through procedures differing from those adopted by ordinary judges.3 This consti- tutional power is also expressly foreseen and regulated by the Constitution. In that sense, the uk Supreme Court is not a specialist constitutional court. That it is a major constitutional actor, however, has been gradually established, particularly since the coming into force of the Human Rights Act 1998. While the Appellate Committee of the House of Lords did serve as the ultimate legal guardian of the constitution,4 the devolution legislation and the Human Rights Act 1998 gave the courts “their first taste of what it is to be a constitutional court.”5 In addition, the separation of powers from the executive under the Constitutional Reform Act 2005 was “not just a means of ironing out a constitutional wrinkle.”6 It rather “added authority”7 to the judgments of the uk Supreme Court. It is hard to conceive the Supreme Court as a Constitutional Court because there is no such thing as an entrenched constitution to which primacy could be accorded – there is no procedural or formal distinction between a “constitu- tional” statute and an “ordinary” statute.8 No special procedure for making (and amending or repealing) constitutional legislation exists in England. The mean- ing of the English “Constitution” is itself a matter of debate. Any constitutional hallmark on a principle and rule is stamped by agreement from the legal and political communities.9 These constitutional principles and rules emerge from
3 A. Harding, P. Leyland and T. Groppi, “Constitutional Courts: Forms, Functions and Practice in Comparative Perspective” in A. Harding and P. Leyland (eds), Constitutional Courts. A Comparative Study, JCL Studies in Comparative Law No.1 (London 2009), p. 11. 4 Lord Bingham, “A New Supreme Court for the United Kingdom,” The Constitution Unit Spring Lecture 2002 (1 May 2002), p. 7. 5 Lord Neuberger MR, “The Supreme Court: Is The House of Lords ‘Losing Part of Itself’?,” The Young Legal Group of the British Friends of the Hebrew University (2 December 2009). 6 Lord Hope, “The Creation of the Supreme Court – was it worth it?,” Barnard’s Inn Reading (24 June 2010), p. 5. 7 Lord Hope, ibid. 8 Thoburn v. Sunderland City Council [2002] E.W.H.C. 195 (Admin); D. Feldman, “The Nature and Significance of ‘constitutional’ legislation” 2013 L.Q.R. 343. 9 House of Lords Select Committee on the Constitution, “The Process of Constitutional Change,” 15th Report of 2010–12, HL Paper No.177 (18 July 2011).
10 House of Lords Constitution Committee, “Reviewing the Constitution: Terms of Reference and Method of Working,” First Report of 2001–02, HL Paper No.11 (19 July 2001), para. [20]; D. Feldman discusses this definition and others in D. Feldman, “The Nature and Significance of ‘constitutional’ legislation,” ibid. 11 Case 6/64 Flaminio Costa v. ENEL [1964] E.C.R. 585; Case 106/77 Amminstrazione delle Finanze dello Stato v. Simmenthal [1978] E.C.R. 629; Case C-213/89, R v. Secretary of State for Transport, ex parte Factortame Ltd and Others [1990] E.C.R.I-2433; R v. Secretary of State for Transport, ex parte Factortame Ltd [1990] 2 A.C. 85; R v. Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 A.C. 603. 12 Lord Phillips, Gresham Lecture (8 June 2010), p. 34. 13 J. Bell, “Memorandum” in Select Committee on Constitutional Reform Bill, “First Report. Written Evidence,” vol. II, HC 125-II (24 June 2004). 14 A fast track procedure can be used to remedy the incompatibility, see Human Rights Act 1998, s. 10. 15 See Human Rights Act 1998, s. 3; Ghaidan v. Godin-Mendoza [2004] U.K.H.L. 30.
Human rights are malleable concepts that are revisited as social expecta- tions change and develop over time. Judicial decisions on them assert views that always remain subject to further argument. This came sharply into light in prisoners’ voting rights cases. The convicted prisoner Hirst challenged the gen- eral and automatic disenfranchisement of convicted prisoners of the right to vote under the Representation of the People Act 1983. The High Court dis- missed Hirst’s application for a declaration that the Representation of the People Act 1983 was incompatible with the right to non-discrimination under Article 14 echr and the right to free elections under Article 3 Protocol 1 echr. The Court found that the ban served legitimate aims pertaining to punishment and electoral law, and deferred to Parliament’s intention in the Representation of the People Act 1983. The European Court of Human Rights, however, considered that, while limi- tations could be brought to the right to vote, a blanket and indiscriminate pro- hibition on prisoners breached the right to free elections under Article 3 of the First Protocol of the echr.16 The wide margin of discretion left to Member States in limiting the right to vote for convicted prisoners had been exceeded. While the saga of the prisoners’ voting rights cannot be detailed here,17 suffice it to say that the English government rejected the European Court’s decision, and that further case law from the European Court on the matter of prisoners’ rights has not appeased the resulting tensions between the European Court of Human Rights, the Council of Europe and the uk.18 The scope of constitutional adjudication further includes devolution mat- ters. Under its appellate jurisdiction and some special statutory powers, the uk Supreme Court can review the distribution of powers between the uk and the national Parliaments of Scotland, Wales and Northern Ireland. Lady Hale recently noted that “the uk has become a federal state with a Constitution regulating the relationships between the federal centre and the component parts.”19 The Court will examine some referred legislation of the three devolved assemblies (Wales, Scotland and Northern Ireland).20 This includes questions
16 See Representation of the People Act 1983; Hirst v. United Kingdom (No. 2) (74025/01) (2006) 42 E.H.R.R. 41 at [60] and [68]. 17 The most recent development is R (on the application of Chester) v. Secretary of State for Justice, [2013] U.K.S.C. 63. 18 See S. Fredman, “From Dialogue to Deliberation: Human Rights Adjudication and Prisoners’ Rights to Vote” (2013) P.L. 292. 19 Lady Hale, “The Supreme Court in the UK Constitution,” Legal Wales (12 October 2012). 20 See the Scotland Act 1998, the Northern Ireland Act 1988 and the Government of Wales Act 2006.
21 Local Government Byelaws (Wales) Bill 2012 – Reference by the Attorney General for England and Wales [2012] U.K.S.C. 53. 22 Hale, “The Supreme Court in the UK Constitution,” p. 1. 23 Hale, “The Supreme Court in the UK Constitution,” p. 16. 24 D. Grimm, “Constitutional Issues in Substantive Law – Limits of Constitutional Adjudication,” in I. Pernice, J. Kokott, C. Saunders (eds), The Future of the European Judicial System in a Comparative Perspective: 6th International ECLN-Colloquium/IACL Round Table Berlin, 2–4 November 2005 (Baden-Baden 2006), p. 277. 25 AXA General Insurance Ltd v. Lord Advocate [2011] U.K.S.C. 46, per Lord Hope at [50–51], Lord Brown at [84], Lord Reed at [176]; Lord Kerr, Lord Clarke and Lord Dyson at [177]; R (Jackson) v. Attorney-General [2005] U.K.H.L 56, per Lord Steyn at [102]. 26 C. Himsworth, Case comment (2012) P.L. 205, at p. 213. 27 Neuberger, “The Supreme Court: Is The House of Lords ‘Losing Part of Itself’?,” para. [30].
II Judicial Diversity
The composition of the uk Supreme Court is a legitimate focus for consider- ation, not least because, in the context of human rights at least, it bears rele- vance to the way in which its judges reach their decisions.29 As a major constitutional role is gradually recognised to the uk Supreme Court, one may wonder whether the whole process and criteria for appointment to the uk Supreme Court should be distinct from that which assesses a judge’s suitability for high-level civil or criminal work.30 Constitutional adjudication brings law and policy together before the courts. Judges will lean in the direction in which the law takes them, but in doing so they may also further shape the direction taken by society. This traditionally raises the question of the proper limits of judicial authority, and it is arguable that, in the uk, the Human Rights Act 1998 has shifted these limits and enlarged the scope of constitutional adjudica- tion.31 In practical terms, as a result, in some countries “those who have political responsibility are seen as being among those best placed to undertake such scrutiny of candidates to judicial appointments.”32 For the time being, appointment to the uk Supreme Court does not greatly differ from appoint- ments to the English bench. uk Supreme Court Justices are widely expected to come from the Bench, from the Court of Appeal specifically, where many polit- ically significant decisions are also taken.33 The care taken to detail the role of
28 Neuberger, “The Supreme Court: Is The House of Lords ‘Losing Part of Itself’?,” para.[31]. 29 See above and below pp. 30 J. Bell, “Reflections on continental European Supreme Courts” (2004) 24 Legal Studies 156, pp. 164–165. 31 Constitutional adjudication remains narrow, however, compared with countries where full judicial review (in the sense of striking down legislation) exists. 32 J. Bell, “Memorandum.” 33 Hence the Crime and Courts Act 2013 sets a consultation duty upon the Lord Chancellor not only for appointments to the UK Supreme Court but also in relation to the appointment
of the Lord Chief Justice, Heads of Division, and the Lords Justices of Appeal. The Lord Chancellor must also consult senior judges in addition to consulting the Lord Chancellor, the First Ministers of Scotland and Wales, and the Secretary of State for Northern Ireland. On duties of consultation, see A. Paterson and C. Paterson, “Guarding the Guardians? Towards an Independent, Accountable and Diverse Senior Judiciary” (London 2012), p. 29. The ad hoc Selection Commission must submit a report to the Lord Chancellor stating who has been selected and who was consulted. 34 Applicants to the UK Supreme Court must have held high judicial office for at least two years, or must satisfy the judicial-appointment eligibility condition on a fifteen-year basis, or have been a qualifying practitioner for at least fifteen years, Constitutional Reform Act 2005, s. 25(1) as amended by ss. 50–52 of the Tribunals, Courts and Enforcement Act 2007. High judicial office includes High Court judges of England and Wales, and of Northern Ireland; Court of Appeal judges of England and Wales, and of Northern Ireland; and judges of the Court of Session. 35 Constitutional Reform Act 2005, ss. 28 and 30. 36 Constitutional Reform Act 2005, s. 30. 37 Constitutional Reform Act 2005, s. 26. 38 Section 27A (2) (a) and (b), Constitutional Reform Act 2005, as inserted by the Crime and Courts Act 2013, Sch. 13, para. [5].
39 Section 27A (1) (c), Constitutional Reform Act 2005, as inserted by the Crime and Courts Act 2013, Sch. 3, para. [5]. 40 They are: the First Minister in Scotland, the Northern Ireland Judicial Appointments Commission, the First Minister for Wales, the Lord President of the Court of Session, the Lord Chief Justice of Northern Ireland, and the Lord Chief Justice of England and Wales; see Section 27A (3), Constitutional Reform Act 2005, as inserted by the Crime and Courts Act 2013, Sch. 3, para. [5]. 41 Section 27A (1) (c), Constitutional Reform Act 2005, as inserted by the Crime and Courts Act 2013, Sch. 3, para. [5]. 42 Section 27B, Constitutional Reform Act 2005, as inserted by the Crime and Courts Act 2013, Sch. 3, para. [5]. 43 Constitutional Reform Act 2005, s. 3. See the discussion on the Draft Supreme Court (Judicial Appointments) Regulations 2013, Delegated Legislation Committee Debates, Session 2013–14 (9 July 2013). 44 See above, pp. 401. 45 Explanatory Notes, Voting Eligibility (Prisoners) Draft Bill, November 2012, paras. [58] and [88].
The need for expertise in the law and practice in Scotland and Northern Ireland46 illustrates the quasi-federal nature of the uk Supreme Court. Interestingly, while England and Wales share a single legal jurisdiction, the Welsh debate on whether there should be a separate legal jurisdiction for Wales47 has led to the requirement, introduced in 2013, that the Lord Chancellor exercises his or her powers of appointments of Commissioners “with a view to ensuring, so far as may be practicable, that the Commissioners who are lay members include at any time at least one person who appears to have special knowledge of Wales.”48 But the importance of representing, within the Court, the different legal systems within the United Kingdom can- not be compared with the appointment of an individual from an underrepre- sented group.49 This is worth noting as any discussion on judicial selection at the uk Supreme Court seems to swiftly turn into a heated debate on the lack of diversity of the English judiciary. Indeed, the representation of women at the uk Supreme Court – one member out of 12 – places the uk in the last rank for oecd countries.50 The narrow social background of senior judges and the under-representation of women, as well as black and Asian minorities have long been (rightly) the subject of countless criticisms and many suggestions of reforms, the most recent of which are detailed below.51 As much-needed as it is, we suggest that this debate over the virtue of diversity does mask a debate familiar to many constitutional courts around the world: conflated with the debate on diversity is a discussion about the difficulty of reconciling the “merit” principle (judicial expertise) with the promotion of democratic accountability (the idea that the composition of the Court should be a fair reflection of society). Thus the House of Lords Constitution Committee noted in 2012 that, “in the United Kingdom, judges” legitimacy depends on their independent status and appointment on merit, not on any democratic mandate’. This refers to confir- mation hearings, which had already been rejected by the Joint Select
46 Constitutional Reform Act 2005, s. 27(8). 47 Welsh Government, “Consultation Document. A Separate Legal Jurisdiction for Wales,” WG-15109 (27 March 2012); Welsh Government, “A Summary of Consultation Responses. A Separate Legal Jurisdiction for Wales,” WG-16277 (17 August 2012). 48 Sch. 12, part 1 Constitutional Reform Act 2005, as amended by Sch. 13, para. [20] Crime and Courts Act 2013. 49 House of Lords Select Committee on the Constitution, “Judicial Appointments,” 25th Report, HL Paper 272 (28 March 2012), para. [92]. 50 A. Paterson. 51 See pp. 410–411.
Committee on the Draft Constitutional Renewal Bill in 2008.52 Concerns about the risk of politicising the judicial appointments process prevail. The House of Lords Constitution Committee thus concludes:53
We are against any proposal to introduce pre-appointment hearings for senior members of the judiciary. However limited the questioning, such hearings could not have any meaningful impact without undermining the independence of those subsequently appointed or appearing to pre- judge their future decisions. In the United Kingdom, judges’ legitimacy depends on their independent status and appointment on merit, not on any democratic mandate.54 … We agree that post-appointment hearings of senior judges would serve no useful purpose. There may be an exception in the case of the Lord Chief Justice and the President of the Supreme Court who under- take leadership roles for which they can properly be held to account.55
Tellingly, the House of Lords Select Constitution Committee also believes that “There is no useful role that parliamentarians could play in Judicial Appointments that could not be played by lay members on selection panels. It would not be possible to choose one or two parliamentarians without recourse to political considerations and in so doing it would be difficult to maintain the appearance of an independent judicial appointments process.”56 The role of lay members on selection panels is thus deemed to be function- ally equivalent to the role of members of parliament. This seems correct to some extent at least: the presence of lay members acknowledges the impor- tance of wider considerations including the virtue of gender and ethnic diver- sity, beyond examination of proven professional achievement. Lay members may been as a safeguard against a corporate approach to judicial selection, whereby a selection panel exclusively composed of judges or lawyers might emphasise the purely technical skills of a lawyer. The broader viewpoint of the lay man might counteract the temptation of “judicial cloning” as well as any politician. Besides, experience from other countries tends to show that the
52 Joint Committee on the Draft Constitutional Renewal Bill, “The Draft Constitutional Renewal Bill,” Report, vol. 1 (2008), para. 164. 53 Ministry of Justice, “The Governance of Britain: Analysis of Consultations,” Cm 7342-III (2008), para. [175]. 54 HL Select Constitution Committee, “Judicial Appointments,” para. [46]. 55 HL Select Constitution Committee, “Judicial Appointments,” para. [48]. 56 HL Select Constitution Committee, “Judicial Appointments,” para. [52].
57 C. Thomas, “Judicial Diversity in the United Kingdom and Other Jurisdictions: A Review of Research, Policies, and Practices” (London 2005), p. 37. 58 Constitutional Reform Act 2005, ss. 26 and 27 as amended by the Crime and Courts Act 2013, Sch. 13, para. [20]. Until the Crime and Courts Act 2013, the selection commission was chaired by the President of the Court, however the fact that the President of the UK Supreme Court chairs the panel appointing his/her own successor has been recognised as inappropriate and led to the change under the Crime and Courts Act 2013. 59 There must be an odd number of Commissioners, Section 27, Constitutional Reform Act 2005, as modified by the Crime and Courts Act 2013, Sch. 13, para. [20]. 60 Section 27 (1B) as inserted by the Crime and Courts Act 2013, Sch. 13, para. [4]. 61 S. Shetreet and S. Turenne, Judges on Trial. The Independence and Accountability of the English Judiciary 2nd ed. (Cambridge 2013), ch. 4. 62 Neuberger, “The Supreme Court: Is The House of Lords ‘Losing Part of Itself’?,” para. [31].
2005 and the Crime and Courts Act 2013, is to enhance judicial diversity in judicial selection. The avowed goal of greater diversity in the composition of the senior judiciary does not simply serve public confidence in the judiciary, giving their decisions greater legitimacy as a consequence. It seems trite to say that the presence of lay members in selection panel is expected to pro- mote wider considerations beyond legal achievements. This is meant to lead to more diverse courts; diverse courts are assumed to be better courts, because they can draw upon a diversity of experience in reaching their deci- sions, thus possibly allowing for a challenge of the otherwise dominant view. To that extent, greater diversity among judges leads them to make a con- scious effort at impartiality rather than taking it for granted.63 One may also infer that a diverse range of experiences may be needed for certain judicial decisions. These certain judicial decisions may be “hard cases”: those cases where the open texture of human rights64 requires judges to solve conflicts of values, and which are decided at the appellate level by panels of judges in the Court of Appeal and in the uk Supreme Court. The prisoners’ right to vote cases can be deemed to be one of these “hard cases.” Lord Justice Etherton is one of very few English judges to suggest a link between the substance of judicial decision-making and judicial diversity in extra- judicial writings:
… in every period, but especially as a result of the [Human Rights Act], the personal outlook and judicial philosophy of each judge plays a criti- cal role in the outcome of hard cases and the defining of our society’s values; and that a judiciary with a diversity of experience, particularly at the highest levels, is more likely to achieve the most just decision and the best outcome for society.65
Lord Justice Etherton argues that, as a consequence of the Human Rights Act 1998, the importance of gaps in the law, left unfilled by common law precedents is such that, in hard cases, “the personal outlook of judges and their political role feature much more prominently.”66 Such diversity, as Lord Justice Etherton
63 B.L. Shientag, “The Virtue of Impartiality” in G.R. Winters ed., Handbook for Judges (American Judicature Society 1975), cited in B. Wilson, “Will Women Judges Really Make a Difference?” (1990) 28 Osgood Hall Law Journal 507 at 508–509. 64 H.L.A. Hart, The Concept of Law (Oxford 1997), ch. 5–7. 65 T. Etherton, “Liberty, the Archetype and Diversity: A Philosophy of Judging” (2010) P.L. 727, p. 740. 66 Etherton, “Liberty, the Archetype and Diversity: A Philosophy of Judging,” p. 740.
67 Etherton, “Liberty, the Archetype and Diversity: A Philosophy of Judging,” 476. 68 This is so particularly in the field of political science, see, e.g., M. A. Bailey, F. Maltzman, The Constrained Court: Law, Politics and the Decisions that Justices Make (Oxford 2011). In the English context, some believe that the complexity of judicial decision-making is such that it is difficult to single out social or demographic factors as relevant in predicting judicial decisions (below the Supreme Court), see H. Genn, Judging Civil Justice (Cambridge 2009) p. 153. Etherton LJ rejects Genn’s approach on the ground of social psy- chology research on group decision-making concluding to the contrary, Etherton, “Liberty, the Archetype and Diversity: A Philosophy of Judging,” pp. 744–745. 69 R. Hunter, C. McGlynn and E. Rackley, Feminist Judgments: From Theory to Practice (Oxford 2010); E. Rackley, Women, Judging and the Judiciary. From Difference to Diversity (London 2012). 70 In addition to these provisions, the Crime and Courts Act 2013 introduces flexible and part-time working for judicial appointments to the High Court and above, see Section 23, Constitutional Reform Act 2005, as amended by the Crime and Courts Act 2013, Sch. 13, paras. [1–2]. 71 Schedule 13, Part 2, para. [11] of the Act, inserting Section 137A to the Constitutional Reform Act 2005. 72 Constitutional Reform Act 2005, s. 64. 73 Lord Pannick, HL Deb. vol. 741 col. 584 (4 December 2012).
Second, an “equal merit” provision now applies to judicial appointments: when there are candidates of equal merit, this provision allows candidates to be selected on the basis of improving diversity.74 Priority, among candidates of equal merit, can thereby be given to the one who comes from an underrepre- sented group. The application of this “tipping provision” or “tie-breaker” already contained in Section 159 of the Equality Act 2010 was endorsed by Lord Neuberger, then Master of the Rolls.75 However, unless the components of “merit” are disaggregated into which are applied in a consistent way, the notion becomes “almost wholly subjective, allowing each decision maker to construct his or her own features which are significant.”76 It also makes the finding of “equal merit” between candidates a subjective matter and potentially limits the impact of Section 159.77 It has been suggested that, in practice, appoint- ments panels fairly rarely found candidates of equal merit. Baroness Neuberger, Lord Phillips and Lord Judge CJ also doubted whether two candidates are ever truly equal.78 In that context, Section 159 would make little impact. Yet it seems likely, as suggested by some other senior judges,79 that Section 159 could have some use. In particular, in large selection exercises, it may not be possible to rank every candidate in strict order of merit and so a number of candidates may be considered to be of equal merit,80 thus allowing Section 159 to come into play. If there is to be a “trickle up” effect from making more appointments at the lowest levels, this may prove to be one viable long-term strategy. In conclusion, while the uk Supreme Court is not a separate Constitutional Court and retains some appellate jurisdiction, it certainly engages in “constitu- tional” adjudication. As a result, some of the concerns about the character of
74 Schedule 13, Part 2, paras. [9] and[10] of the Act (respectively inserting Section 27 (5A) and amending Section 63 of the Constitutional Reform Act 2005). This analysis is taken from S. Shetreet and S. Turenne, Judges on Trial. The Independence and Accountability of the English Judiciary, ch. 4. 75 Oral Evidence before the House of Lords Select Committee on the Constitution, “Judicial Appointments Process Oral and Written Evidence” (28 March 2012), Q 240 (Lord Neuberger MR). 76 S. Evans and J. Williams, “Appointing Australian Judges: A New Model” (2008) 30 Sydney Law Review 295, p. 297. 77 HL Constitution Committee, “Judicial Appointments,” para. [91]. 78 Oral Evidence before the House of Lords Select Committee on the Constitution, “Judicial Appointments Process Oral and Written Evidence,” Q 224, Q 183, Q 184, Q 364. 79 Oral Evidence before the House of Lords Select Committee on the Constitution, “Judicial Appointments Process Oral and Written Evidence,” Q 377 (Lord Chancellor), Q 98 (Goldring LJ), Q 240, (Hallett LJ), Q 240 (Lord Neuberger MR). 80 HL Constitution Committee, “Judicial Appointments,” paras. [98–101].
Sergey Nikitin*
I Introduction: The Guarantees of Independence
As it is known, the real independence of judges is guaranteed by various means: legal, economic, administrative, etc. First, a judge must be protected from illegal external influence: the executive branch, business, unscrupulous lawyers, etc. Second, they must be protected from the undue influence of judges within the judicial system, for example, from managers, court administrators or higher courts. These means have to be very concrete and specific, both in a legislative and in a practical sense. Legislation should include precise, executable and pro- tected enforceable rules that guarantee the independence of judges and courts. Their implementation should not allow even an appearance of distortion to judicial independence. Judicial independence must not be simulated.1 According to Article 120 of the Constitution of the Russian Federation, judges are independent and are only subordinate to the Constitution of the Russian Federation and federal law. The Federal Law on the Status of Judges in the Russian Federation establishes the guarantee of judicial independence remains in compliance with Article 9 of the cited law. The judicial indepen- dence is guaranteed by the following: The procedure for administration of justice provided for by law; prohibition under the threat of liability of anybody’s interference into the activities involved in administration of justice; established procedure for suspension and termi- nation of judge’s authority; judge’s right to retirement; inviolability of judge; and system of the bodies of the judicial community; judge’s material and social maintenance on account of the State corresponding to his/her high status. The guarantees of judge’s independence, including the measures of legal protection, material and social maintenance thereof provided for by this law extend to all the judges of the Russian Federation and may not be cancelled or
* Civil, Arbitration, and Administrative Proceedings Department, Russian Academy of Justice 1 Modernisation of Judge’s Status: Modern International Approaches (Executive editor T.N. Neshatayeva). “Norma.” “Infra-M,” M., 2011. p. 14.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_029
II Organizational Functions of the Judicial Branch
The organization and functioning of judicial power in Russia, including the legal status of judges, is predominantly determined by the transitional state of the economic, political and legal systems. In this connection, the classic legal means aimed at ensuring judges’ independence are not always efficient. The modern legislation regulating the legal status of judges in the Russian Federation started to build up in the first half of the nineties of the last century. The adopted laws were aimed at ensuring judges’ independence and indepen- dence of the judicial branch of power on the whole. The initial period was characteristic of a major enhancement of the role of the judicial community’s bodies: congresses of judges, judicial councils, qualification collegiums of judges. Afterwards, starting from the mid-twenties the authority of chairmen of courts of various levels gradually increases and the role of the judicial com- munity’s bodies reduces. Such trend is ambiguously treated by the legal doc- trine. A number of authors point to an excessive bureaucratization of the Russian judicial system and to the supernormal role of court chairmen in it, this having a negative impact upon judges’ independence.2 The guarantees of judges’ independence are connected to a great extent with the issues involved in the functioning of the judiciary of the Russian Federation and judges’ legal liability. A procedure for joining the profession of a judge, as well as a procedure for and grounds for bringing judges to legal lia- bility must be such as to ensure judges’ independence as much as possible.
III The Structure of the Judiciary
At first I would like to draw your attention to the structure of the Judiciary in Russia. (Chart 1).
2 L.V. Golovko. Building Up Independent Judicial Power: Strategic Approaches//Voprosi Pravodedenia.2010. No. 3(7), p. 157.
Chart 1 Structure of the Judiciary
Higher Court Judges
Russian Supreme Court Russian Supreme Court of Arbitration Russian Constitutional Court 125 58 19
Judges of Regional Courts Court of Arbitration
(Appellant Court) (Cassation Courts) 4198 388
Judges of Regional Courts Judges of Arbitration and (First and Appellant Courts) Appellant Courts
16269 546
Magistrates Judges of Regional Courts of Arbitration
(Justice of the Peace)(Lower Court)
7440 2758
In Total – 32368 Including:
General Court Judges 21178
Arbitration Judges 3750 Magistrates 7440
In total in Russia there are more than 32 thousand judges. Justice in civil, criminal and administrative cases is exercised by the courts of general jurisdiction. General courts are, first and foremost, courts for citizens. Arbitration courts are courts for legal entities and entrepreneurs. They deal with economic, civil and administra- tive cases. As you can see most of the judges are judges of general courts.
In appointing a citizen to the position of judge, as well as in the application of measures to hold judges to a legal liability, judiciary bodies play a rather significant role. It is qualification colleges of judges and examination boards (Chart 2).
Chart 2 Judiciary Bodies in Russia
2.Judiciary Bodies in Russia
Congress of Judges of RussiaRegional Congress of Russia
Council of Judges Supreme Examination Board Council of Judges Examination Board
Supreme College of Judges Quali cation Board
In Russia there functions the Supreme Board of Judges, the Supreme Examination Board, as well as regional board and qualification examination board. The Examination Boards take exams for the post of judge. Qualification Boards make recommendations for the occupation of judge and consider cases of holding judges to legal liability. The Qualification Board and the examina- tion boards are made up of judges and representative of the legal community. Judges approximately make up 2/3 of the composition. Representatives of the legal community are 1/3. Judges in the Board and Examination Boards are elected respectively by the Congress of Judges of Russia and the regional con- ferences of judges. Representatives of the legal community are professors of a law school or representatives of a public legal organization. They are elected in the upper house of parliament or regional parliaments. Judicial candidates must meet certain requirements. Age is to be between the ages of 25 and 40 years, depending on the level of the court. The candidate must hold a law degree not lower than that of a Master's. A Bachelor's Degree does not allow one to become a judge. The candidate must have experience in the legal profession, approximately 5 to 10 years. Also taken into account is the state of the candidate's health, the absence of a criminal record as well as other requirements. In the Russian Federation there exists the principle of a single legal status of judges and is established in fact as the one single and competitive means in the formation of a body of judges.
A general chart on how one enters the profession of judge is reflected in the following (Chart 3):
Chart 3 Procedure for Formation of a Judicial Body
Judicial CandidateQualifying Examination Recommendation of the Qualifying College
Named to the Position by the Elected to the position by the Federation Council of the
President of the Russian Federation Federal Assembly of the Russian Federation
(Supreme Court Judges)
Elected to the position of judge by the regional parliament
(Magistrates)
Judicial candidates must pass a special qualifying examination. The Qualifying Boards of Judges announce vacancies and conduct the competition. The Board may recommend to the position of judge one or more candidates. Recommended candidates are proposed for appointment to judicial office by the Board. Most federal judges are appointed by the President of the Russian Federation. The judges of higher courts are elected to the position by the upper house of the Russian parliament on the proposal of the President of Russia. The President may, in principle reject the recommended candidates. But this is quite rare. Magistrates are appointed by the regional parliaments. Federal judges are appointed for an indefinite term whereas magistrates are appointed for a period of up to 5 years. Currently, a single way of forming the judiciary is not quite optimal. In this regard, there are other ways for entering the profession of judge to be consid- ered; first, either through special training in a law school, or through continu- ous special training in the courts. Magistrates are elected directly by the public. For the transition of an acting judge to a higher judicial position, there exists the identified procedure for the appointment. In this case, the candidate doesn't need to pass a qualifying examination. Recently, upon the appointment of judges, it is actually strengthening the role of court charmen and a definite reduction in the role of qualifying boards. In fact, a candidate for the position of judge who has not received the support of a representative a higher court is quite unlikely to be appointed as a judge. This situation can be seen as a negative thing from the point of view of ensur- ing the independence of judges.
IV Discipline of Judges
Now, the procedure of legal responsibility of judges: First of all disciplinary proceedings. The question of the liability of the members of the judiciary is one of the keys to the effective functioning of the judiciary. The principle of independence cannot be understood exclusively as a set of privileges estab- lished by the state for the judiciary. Independence must be balanced by the responsibility of judges for violation of laws regulating their activities. But con- trol over the activities of judges should not undermine their independence and become a punitive tool against unwanted members of the judiciary or unduly limiting the rights of judges and subjecting them to undue criticism.3 The qualifying boards of judges play a fairly large role in Russian disciplin- ary proceedings. Only they hear disciplinary cases and make decisions about bringing disciplinary proceedings against judges. A general chart for disciplinary proceedings is as follows (Chart 4).
Chart 4 The Procedure for Disciplinary Proceedings
Commencement of Proceedings Hearing a Case Disciplinary Penalty Appeal
Court Court Representative
Qualifying Board of Judges Notication Supreme Qualifying Board
Council of judges
Removal of O ce Judicial Disciplinary Court Qualifying Board of Judge
Disciplinary proceedings may be initiated against a judge by the Chair of the Court, or by the Council of Judges or by the Judiciary Qualifying Board. The Board reviews the case before a judge. There are two types of disciplinary mea- sures: a warning or early termination of office of the judge. A judge may appeal to a higher board or to a superior court. The decision to terminate the powers of a judge is appealed to a special disciplinary court, which consists of judges of the Supreme Court and the Supreme Court of Arbitration. Grounds for disciplinary responsibility of judges are of a sufficiently general nature. This is a violation of the requirements that apply to judges by the fed- eral law “On the Status of Judges” and the Code of Judicial Ethics. It is a violation
3 Modernisation of Judge’s Status: Modern International Approaches, Pages 204–205.
4 Bulletin of the Supreme Court of the Russian Federation. 20,207. No. 8. 5 N.A. Petukhov, A.S. Mamikin. Disciplinary Does not Mean Arbitrary//in the collection of articles: Qualification Boards of Judges: Yesterday, Today and Tomorrow. M., 2012, Pages 229–230.
Liu Hao*
I History of the Introduction of Judicial Independence
Judicial independence is a principle and system born in the West that origi- nated out of the political systems, legal concepts and cultural heritage of mod- ern Western countries. It is a product of modern Western bourgeois-democratic revolutions and is built on concepts that include “sovereignty of the people” and the “separation of powers.” The core theoretical underpinnings of judicial independence came from the works of Locke and Montesquieu, with earlier theoretical influence by Plato and Aristotle.1 In contrast to Western countries, China introduced the concept of judi- cial independence into its legal system during the second half of the 18th century and did so as a reaction to political events. Before that period, China had undergone more than 2000 years of imperial dictatorship, in which the imperial authority was supreme with no division of power with any other authority. It was widely accepted that the emperor’s word was the supreme constitution. It was said that “law came from the emperor, and imperial power was higher than law” and that “life and death were at the sole discretion of the emperor.” China’s sovereignty and territorial integrity were greatly harmed in the aftermath of the First Opium War (Britain’s invasion of China, 1840–1842). Western countries, invading with their superior ships and advanced cannons, forced China to let go of her sense of superiority as a Celestial Empire. Thus, China sought to acquire knowledge from the West, a process that was initiated by the study of Western science and technology. The ultimate aim of these activities was eventual retaliation through “learning the technological advantages of foreign invaders in order to defeat them later.” However, the Chinese
* Liu Hao is Director of Institute of Aviation Law and Standard of Beihang University (buaa) and Deputy Director of National Research Center of ATM Law and Standard in China. He is also a fellow of Law School of Beihang University (buaa). 1 CHEN Guangzhong, “Judicial Independence with Chinese Characteristics from a Comparative Law Perspective” (2013) 2 Journal of Comparative Law 1.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_030
II Development and Characteristics of China’s Judicial Independence in Modern China
In 1949, the Communist Party of China (cpc) won the Civil War, and the Kuomintang regime was driven to Taiwan. The cpc founded the People’s Republic of China (prc) on mainland China. The new regime, like other Communist regimes in other countries, was fervently ideological and claimed to break with past traditions and capitalism in all respects. Therefore, even before the prc was founded, it announced the annulment of the Six Codes of the Kuomintang regime. It then required that judicial organs regularly show contempt for and criticize the “reactionary” Six Codes as well as all the other “anti-people laws and ordinances of the European and American capitalist
2 HAN Xiutao, “Pursuit of Judicial Independence, Values, and a Return to Reality in Modern China” (2003) 4 China Legal Science 165.
3 Instruction of the Central Committee of Communist Party of China on Abolishing the Six Codes of the Kuomingtang and Confirming the Judicial Principles of the Liberated Areas (28 February 1949). 4 HE Qinhua, “Abolish the Six Codes of the Kuomingtang” Xinmin Evening News (12 July 2009) p. B11. 5 According to Professor HE Qinhua’s Report, there were 2015 cadres have shifted to judicial work in eastern China. HE Qinghua, “Judicial Reform Movement in 1952” Xinmin Evening News (26 July 2009) p. B11. 6 Ibid.
The provisions of the 1954 Constitution were deemed as vows of judicial independence. Some jurists thus began to openly discuss judicial indepen- dence and the related judicial systems and political systems. They put forward some very thoughtful views, such as the idea that the Party’s leadership over the work of the courts should be realized through the stipulation of laws, because the law is the will of the people and also the will of the Party. Another suggestion was the idea that through acting in a manner that is subservient to law, judges are, in fact, acting in accordance with the party’s leadership. Therefore, judges only need to obey the law. Another concept was that judges should attend only to the law and not determine policies. “Judicial indepen- dence is feasible when the laws are complete.” “The Party is violating the law if it becomes involved in the specific judicial affairs of the people’s courts.”7 These valid arguments were soon harshly censured and criticized during the Anti-Rightist Movement in 1957. A large number of jurists and legal affairs workers were designated as “rightists.” The principle of judicial independence was thus completely crushed. When the Cultural Revolution subsequently came, it wiped out the Chinese judicial system. Judicial organs at all levels were totally paralyzed. The Constitution as amended in 1975 went further to erode the nominal principle of rule of law by striking down the concepts like: “The independent adjudication of the people’s courts is subject only to the law.” “Citizens are equal in the eyes of law” and “the defendant has the right to speak in his own defense.” The procuratorial organs were abolished and the functions had been handed to the public security organs. The 1975 Constitution stipulated that the “route of the masses” must be followed in the prosecution and adjudication of cases.8 The separation and counterbalance of powers had thus completely disappeared. As a result, the rights of Chinese people were wantonly trampled on with multitudes of unjust and erroneous cases. When the Cultural Revolution was over, the cpc reflected on the severity of its past errors and initiated a large-scale campaign to “make wrongs right.” Reconstruction went ahead in full swing in the judicial domain. The Organic Law of the People’s Courts, passed in 1979, restored the principle that “the peo- ple’s courts shall conduct adjudication independently, subject only to the law.”9 The Constitution, as amended in 1982, stipulated that the people’s courts are to exercise judicial power independently, and the people’s procuratorates are to independently exercise prosecutorial power “free of interference from
7 XIA Jinwen and ZHANG Hua, “Historical Process of China’s Judicial Independence in the 20th Century” Research on Modenization of Legal System vol. 5 180–181. 8 See Article 25.3 of the 1975 Constitution. 9 See Article 4 of the Organic Law of the People’s Court in 1979.
10 See Article 126 and Article 131 of the 1982 Constitution. 11 LI Buyun and LIU Zhiwei, “Several Issues on Judicial Independence,” (2003) 3 Chinese Journal of Law 3–4. 12 See Article 62 of the 1982 Constitution of prc.
13 CHEN Guangzhong, op. cit. 1, 7.
III Existing Deficiencies of Judicial Independence in Mainland China
A cpc’s Interference in Court Trials
In Mainland China, courts are still to a large degree considered as instruments for yielding autocratic political power, likened to a “sword hilt” or “barrel of gun.” It has always been important for the cpc to lead and control the judicial organs. At each level of the Party Committees, there is a Committee of Political and Legal Affairs (cpla) responsible for leading and harmonizing the works of the judiciary, the procuratorates and the public security bureaus. In accor- dance with the principle that the party assumes responsibility for the cadres’ affairs, the presidents, vice presidents, presiding judges, vice-presiding judges, members of the Adjudication committee, and judges of the Local People’s Court at all levels will be deliberated on and determined by the Party
14 FENG Congxia, “Political Party and Justice: Relations and Distance – Another Interpretation of US Judicial Independence,” (2005) 4 Peking University Law JournaL 415.
Committees at the corresponding level. Thereafter, the potential candidates are submitted for selection by the people’s congress at the corresponding level or to its Standing Committees for appointment. It is thus apparently impossi- ble for judicial organs to exercise judicial power in accordance with the law without interference by cpc.15 Though the interference of Party Committees and Committees of Political and Legal Affairs in regards to case trials has decreased tremendously, some important cases still need to be reported to Party Committees in the court or Committees of Political and Legal Affairs for guidance and directions.16 Sometime, the directions and the coordination work from the party commit- tees, especially for that work of the Committees of Political and Legal Affairs could be helpful to get civil and commercial disputes resolved in a harmonious way. But in criminal cases, because of the conflict of justice and efficiency and other factors that might be taken into consideration during the deliberation of the Committees of Political and Legal Affairs, such external interference could lead to judicial unfairness and bias. For instance, in the infamous case of SHE Xianglin, ZHAO Shuhai, ZHANG Hui and ZHANG Gaoping, the Committees of Political and Legal Affairs were found to have been meddling with the judg- ments. As a famous Chinese legal expert pointed out, the Committees of Political and Legal Affairs violated the principle of the integration of power with responsibility by failing to take legal responsibility/liability for the mis- takenly adjudicated cases that they had meddled in.17 Furthermore, the heads of public security organs at different level generally takes the posts of Secretary or Deputy Secretary of the Committees of Political and Legal Affairs at the cor- responding level. Consequently, it is easier for the public security organs to dominate the results of some criminal cases in which the Committees of Political and Legal Affairs meddled.18
B Ambiguousness in People’s Congresses Supervision of Courts
The 1982 Constitution explicitly stipulated the right of people’s congress to supervise the performances of courts. However, it did not particularly specify the scope or methods of supervision – leaving the specific nature of such
15 TAN Shigui, “On Judicial Independence” (1997) 1 Tribune of Political Science and Law, 32. 16 MA Huaide and DENG Yi, “Judicial Independence and Constitutional Amendment” (2003) 12 Law Science 31. 17 CHEN Guangzhong’s speech delivered at one conference, see http://fxxb.legal-theory .org/?mod=info&act=view&id=207 [Accessed 21 April 2013]. 18 CHEN Guangzhong, op. cit. 1, p. 8.
However, the Law of Deputies to the National People’s Congress and to the Local People’s Congresses at Various Levels, enacted in April 1992, included a provision entitling the npc deputies to conduct interpellation of courts in accordance with the law.19 This back-and-forth repetition and hesitation fully reflects the cautiousness and reservation that the npc and its Standing Committee has demonstrated in allowing interpellation of the courts.20
C Administrative Organs’ Control over the Funds of Courts
In Mainland China, the funding of local courts is dependent on local fiscal pol- icy at the corresponding level, in which the budgets of the local governments contain the financial budgets of the courts. As a result, courts have no way to avoid control by administrative organs at the corresponding level.21 For instance, in the course of hearing a case regarding mining rights in 2010, the Supreme People’s Court received an official letter from the General Office of Shaanxi province, which stated, “During the first instance of judgment, the Provincial High Court misunderstood the documentary evidence cited…. If the judgment is maintained, a series of grave consequences will follow…. It will bring about major negative effects in terms of the stability and development of Shaanxi.”22 No legal investigations have been conducted in relation to this undisguised interference in judicial affairs by an administrative organ. This official letter has been satirized as the boldest official letter in the country. Unbelievably, some places have actually institutionalized this practice of inter- ference. As reported in the Legal Daily on April 3, 1998, the government of Tieli City in Heilongjiang province put forward the “Coordinated Accreditation Notice” and “Coordinated Enforcement Notice.” Although these notices have “coordinated” in their name, implying they merely seek to guide and facilitate cooperation, they actually act as directives forcing the judicial organs to con- sult administrative organs; indeed, these notices stipulated that the signatures of the leading officials of the municipal government are required before certain cases may proceed to the “legal procedures” of case filing and enforcement.23
19 See Article 14 of the Law of Deputies to the National People’s Congress and to the Local People’s Congresses at Various Levels. 20 CHEN Sixi, “Conflict and Balance: People’s Congress Supervision and Judicial Independence” (2002) 6 People’s Judicature 10. 21 CHEN Guangzhong, op. cit. 1, 9. 22 WANG Guoqiang, “An Official Letter to the Supreme Court, Who is interfering with Judicial Independence,” (2 August 2010) China Youth News. 23 GUO Daohui, “Implement Judicial Independence and Contain Judicial Corruption” (1999) 1 Science of Law 8.
Even though this practice has devastated the prestige of the courts, it had absurdly been disseminated as a practice for other local governments to learn from. These factors exacerbate the difficulty of practicing judicial indepen- dence in Mainland China.
D Influence of the Courts at Higher Level to the Lower Ones
According to the 1982 Constitution and relevant laws, the relationship between the higher and lower courts is supervisory. Courts of different level are entitled to adjudicate cases on their own discretion and are not bound by any hierarchical relationship or administrative subordination. The higher courts do not supervise the lower courts through directive instructions on specific cases, and the lower courts are entitled to enter into judgments independently. The higher courts are to maintain the correct judgments and rulings of the lower courts and to correct the wrong judgments and rulings of the latter through appellate trials, trial supervision procedures, and procedures for death sentence review.24 However, in order to avoid potential alteration of the original judgment after it is appealed to a higher court, the lower court, in contemplation of potential feedback regard- ing the court’s performance, higher courts for instructions and guidance on the factual and legal issues regarding specific cases. In reply, the higher courts often provide instructions to the lower courts on how a case should be decided. As such, many cases are actually decided before trial, and the trial itself becomes a mere process of “going through the motions.” As a result, the trial of first instance actually serves as the trial of second and final instance, obviously violat- ing the Constitution and relevant procedural laws.
E Bureaucratization inside the Courts
In Mainland China, judges within the same court are not totally equal in status. An ordinary judge works under the presiding judge, president and members of adjudication committee. Judges have administrative rankings too – there is a complete hierarchy from the entry-level judges up to provincial/ministerial - level judges. In addition, the Law of Judges divides judges into twelve grades and the following four major ranks: I. the Chief Justice; II. Associate Justices; III. Senior Judges and IV. Judges. Dividing the judges into grades might bring about inequality among them. Thus, lower level judges are unable to express their opinions and oppose the higher-ranking judges. Lower-level judges must abide by the opinions of superior judges regardless of whether or not
24 CHEN Guangzhong, op. cit. 1, 9.
IV Opportunities of Judicial Independent in the New Era
The path to the establishment of a modern judicial system and the achieve- ment of judicial independence in China has been arduous. However, genera- tions of people in legal circles of China have never given up on those dreams.
25 JIANG Bixin, “On Intensifying the Functions of the Collegiate Bench” (2000) 1 Journal of Law Application 1. 26 CHEN Guangzhong, op. cit. 1 p. 10.
A new generation of cpc leaders assumed the reins of government at the 18th National Congress of the cpc in 2012. On December 4, 2012, at the memorial conference of the 30th anniversary of the present Constitution (1982 Constitution), Mr Xi Jinping, the General Secretary of the cpc, stressed that safeguarding the authority of the Constitution is to safeguard the authority of the common will of the Party and the people, while safeguarding the sanctity of the Constitution is to safeguard the sanctity of the fundamental interests of the people. The vitality of the Constitution lies in its implementation, while the authority of the Constitution also rests with its implementation. This has aroused the enthusiasm of jurisprudential circles to a large extent. People have once again begun to earnestly reflect on the feasibility and methods of moving forward towards judicial independence. In the meantime, after Mr Zhou Qiang assumed the post of President of the Supreme People’s Court, many outstanding cases involving injustice have been solved. Amid these occurrences and the legal qualifications of Mr Zhou, peo- ple seemed to have found hope in terms of the prospects of judicial reform in Mainland China. Judicial independence is an internationally recognized principle of the rule of law. Article 10 of the UN’s Universal Declaration of Human Rights stipulates “[e]veryone 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.” It is well accepted that the Universal Declaration of Human Rights has already become part of the pre- vailing international law. The Chinese government has signed the International Covenant on Civil and Political Rights, in which Article 14 contains a similar provision. Over the three decades of reform and opening up, China has made substantial progress in terms of its economy. The Chinese economy has inte- grated with the world economy. Yet, the prolonged standstill in political system reform has resulted in growingly severe polarization between the rich and the poor and a large amount of social unfairness. Considering how far Mainland China’s reform and opening up has already proceeded, turning back now is out of the question. The only concern at this point is the consideration of how to move forward. Political system reform is inevitable, and judicial system reform is an appropriate area to make a breakthrough.
V Proposals on Mainland China’s Judicial Reform
The objective of judicial reform is to ensure judicial fairness, and the prerequisite for judicial fairness is judicial independence. Specifically, judicial
A Eradicate Obsolete Ideology and Delineate the Independent Status of Judicial Authority in the Constitution
Owing to the influence of ideology, judicial independence has long been deemed as a privilege of capitalism and advocating judicial independence has been regarded as a denial of the leadership of the cpc in Mainland China. Though the 1982 Constitution stipulates that “[t]he people’s courts exercise judicial power independently and are not subject to interference by any administrative organ, public organization or individual,” it has generally been considered that the term of “social organization” here does not include the ruling party, the cpc. As set forth in the Constitution, the courts and the National People’s Congress do not share an equal status. The constitution stipulates that the National People’s Congress is the organ of state authority and is thus inseparable from that authority. The judicial authority of courts is derived from the People’s Congress. Therefore, if Mainland China only thinks within the boundaries of the existing ideology, judicial independence cannot emerge. The time has come to consider this issue from a different perspective. Judicial independence does not mean the courts should necessarily be on an equal footing with the People’s Congress. Britain is a country with parliamen- tary sovereignty. The political system places the parliament in the supreme position, and yet the principle of judicial independence became established long ago. It is obvious that so long as we can think beyond the boundaries of existing ideology, it will be possible to ensure the superior position of the People’s Congress in the national political system while achieving judicial independence, which was in fact achieved in China in accordance with the 1954 Constitution. As a result, China could possibly return to the 1954 Constitution in regards to upholding the provisions that “[t]he people’s courts administer justice independently and are subject only to the law.” As a matter of fact, some scholars have also proposed better ideas, such as the idea that “the people’s courts administer justice independently and be subject only to the Constitution and laws.” They believe such a provision is more accurate and complete and serves as an ideal proposal to establish the principle of judicial independence.27
27 MA Huaide and DENG Yi, op. cit. 16, 37.
B Adjust the Relationships among Courts, The Ruling Party and other State Organs to Ensure the Courts Independently Exercise Judicial Authority according to Law
Priority must go to the consideration of the relationships between the judicial organs and the ruling party. In the decades since the establishment of the prc, it has always been a challenge for cpc to correctly handle the relationships among the ruling party, state organ, administrative agencies and judicial organs. The lessons that have resulted from the Party taking the place of the government and from the lack of separation between the work of the Party and that of the government have been harsh. As a matter of fact, the abovemen- tioned view, which was suggested by the previous generation of Chinese jurists in the 1950s, is an ideal solution that is also in full compliance with the current stance of the cpc. cpc leaders have expressed that “rule of law is the funda- mental strategy of the Party for leading the people and governing the country. Rule of law is the fundamental matter for the managing of state affairs.” “Party organizations at all levels must exercise their power within the ambit of the Constitution and laws.” According to current cpc policies, the “party leader- ship” mainly refers to the political, ideological and organizational leadership. The Constitution and laws are established by the Party to lead the people. Therefore, judicial organs independently exercising judicial authority in accor- dance with the law is, in essence, implementing the policies of the ruling party, effectively executing the political measures of the cpc. By interfering in indi- vidual cases, not only would the cpc be going against the established purpose of the laws and subsequently damaging the authority and reputation of the cpc, but they would also be potentially engendering corruption and injustice. Hence, interference in trials in courts by cpc committees at any level should be regarded as unlawful. It should be clarified that cpc leadership in regards to judicial work is embodied in the Party leading the people to establish the Constitution and laws and that party organizations at all levels should not meddle with individual cases. The supervision by the People’s Congress over courts has been stipulated in the 1982 Constitution and related laws. The mission now is to define the scope of the supervision by the People’s Congress over the judiciary and to prevent it from infringing on the independence of the judiciary in regards to trials in courts. Scholars have proposed that the supervision of the People’s Congress should be performed within three areas. The first area of supervision should be in regards to legal personnel. This supervisory task should involve a focus on whether the judges have exercised good conduct and have good legal qualifica- tions and whether derelictions of duty have been committed, including the
C Advance Judicatory System Reform to Achieve Proper Independence of Judges
The independence of judges is the anchor point and ultimate goal of judicial independence. Considering the current political environment and the qualifi- cations of judges in Mainland China, it is impractical for Mainland China to completely imitate the systems of independent judges present in the West.
28 CHEN Sixi, op. cit. 20, 10.
A more feasible means would be to strengthen the existing judicatory organi- zations, particularly the collegiate benches and single judges, in order to ensure that they independently administer justice in accordance with law. The Supreme People’s Court could establish relevant regulations to abolish the approval right of court presidents and presiding judges in regards to judgments pertaining to individual cases. Such administrative practices are incompatible with judicial work, violate the underlying principles of judicial work and are likely to lead to miscarriages of justice. In the long run, Mainland China could also eliminate the hierarchy of judges, streamline the bureaucracy in courts, and realize proper equality of judges in the judiciary. Another safeguard for ensuring the independence of judges would be pro- viding career stability. Mainland China should legislate for the protection of judges who are independently trying cases from improper harm inflicted by other organs. With the exception of derelictions of duties or severe criminal charges, judges should not be removed from their posts. Meanwhile, the man- agement system of judges should be reformed, and a court work group com- prised of judges, judge assistants, court clerks, bailiffs, and support staff should be established. Distinct management measures should be established for dif- ferent groups so as to maintain the core position of judges in trials, improve their remuneration and terms of employment accordingly, enhance their pro- fessional sense of honor and maintain the stability of teams of judges.
VI Conclusion
Achieving judicial independence in Mainland China is an arduous yet crucial mission. Judicial independence has been on a rocky path in Mainland China since its introduction into the country more than one hundred years ago. However, judicial independence is now a benchmark for a country that prac- tices the rule of law, rendering it quite difficult to find a reasonable excuse to blatantly reject the concept. Moreover, today’s China needs an authoritative and fair dispute settlement body. The large number of legal petitions and the increasingly difficult work of maintaining stability have fully demonstrated this necessity. Therefore, whether on its own accord or reactively, it is impera- tive that Mainland China launch judicial reforms, and when it does, the real- ization of judicial independence will be within grasp.
Giuseppe Franco Ferrari*
I Introduction: The Administrative Justice System in Italy
The Italian administrative justice system is organized on a two-tier basis. The court of first instance is the Administrative Tribunal (tar) and has mainly con- sultative functions and support the work of the national administration through advisory opinions. The second level court is the Council of State, whose sections III, IV, V, and VI are jurisdictional. The division of competences between administrative judges and civil or ordinary judges is unique in Europe and in a wider comparative landscape. Since 1889, when the jurisdictional role of the Council of State was reactivated, it depended on the subjective position activated by the plaintiff. When he/she alleges to have been damaged in a right awarded full protection against a pub- lic administration, such a claim must be introduced in an ordinary court; to the contrary, when he/she alleges a legitimate interest, it has to be protected by an administrative judge. This dividing line has traditionally proved quite uneasy to be applied, but it was formalized in art. 103 of the 1948 Constitution. Necessarily, since 1907, in fields where the right/legitimate interest distinction is too hard to draw, an exclusive competence of the administrative judge has been established, in enumerated subjects. This was established in order to pre- vent the claimant from being compelled to sue the administration first in an administrative court to get the annulment of the administrative act and later on in a civil court to get his damage restored with a pecuniary compensation. This system resembles the French tradition, but the division of competences and its basis have something in common only with the Belgian legal system.
* Giuseppe Franco Ferrari is a tenured professor of Comparative public law at “L. Bocconi” University, Milan; former tenured professor at Teramo (1986–1990) and Pavia (1990–1999). He is also president of the Italian Association of Public comparative and European law - dpce - (1999 till nowadays), member of the committee of the Italian Association of Comparative law (aidc), editing director of dpce review. He is co-editor of the manual “Diritto pubblico com- parato,” Rome (2009) and editor of “Diritto pubblico dell’economia,” Milan (2010, 2013). He has been member of the Committee of experts on public administration of the un Economic and Social Council (2002–2007).
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In 2010 the whole machinery was revised through the adoption of an “administrative procedural code,” adopted with the legislative decree 104/2010. Furthermore, in the last ten years or so, several cases both decided in the Council of State and by the Cassation Court have tried to order and simplify the administrative process and its collateral problems, even independently of its legal regulation.
II The “Mediation” Procedure
The first example of the adrs is the so-called “mediation.” Its function in civil and commercial controversies concerning disposable claims is defined by leg- islative decree no. 28/2010, following the delegation statute no. 69/2009, which implemented the European directive. This directive, in defining its ambit of application, explicitly excludes its utilization in the fiscal and administrative sectors and in customs matters. This “administered” mediation is a procedure fulfilled by private or public bodies listed in a register created by the Ministry of Justice. The legislative decree describes such activity as “committed to an impartial third party and aimed at assisting two or more subjects both in looking for the search of a friendly agreement in order to compose a controversy and in formulating a proposal for the resolution of it.” The common rationale of the mediation procedure is to deflate the amount of controversies burdening the docket of civil judges. The European directive insists on the principles of due process, impartiality of the subject in charge, efficacy, transparency, quickness, equity, privacy, and money-saving. National legislators are free to conform the domestic instruments within such a framework. The mediation procedure can be either voluntary or compulsory. It can also be used in connection with the exercise of judicial functions. Whoever wants to reach the conciliation of a controversy in the civil or commercial field can freely and voluntarily activate such a procedure and the other parties are free to participate. The details of its working are to be included in specific regulations, adopted by the accredited bodies. By choosing the accredited body the parties accept its regulation as governing the mediation procedure between them. The procedure has to be closed within the fixed term of four months, which makes it very quick, at least in comparison with the lasting of an ordinary suit, which the legislative has tried to shorten several times, without fully succeeding. When an agreement is reached, the mediator is required to underwrite a statement, being title for executive expropriation, for judicial mortgage regis- tration, and for implementation in specific form.
When a full agreement proves unreachable, a conciliation is still possible, if the parties insist in looking for it. Compulsory mediation was introduced in the Italian legal system through art. 5.1 of legislative decree no. 28/2010. The plaintiff in a suit concerning fam- ily law, property and leasing rights, bank, financial or insurance contracts, inheritance matters, defamation through the press or other means, medical responsibility and damages from circulation of vehicles or ships, was com- pelled to complete a mediation procedure as condition of admissibility of the civil suit. The lawyers as a corporation reacted against this kind of adr, alleging the insufficiency of due process and counsel. The Constitutional Court, in a very recent decision,1 declared unconstitutional this kind of compulsory proce- dure, without entering the merit of the problem but simply noticing a lack of delegation, since the compulsory version was not explicitly included in the delegation statute. Nor do European rules impose any compulsory formula, leaving it up to the national legislators to opt for one or another form of media- tion. The only decision of the Court of Justice concerning this topic2 invokes the principle of proportionality in order to state that a filter before a judicial action can be imposed, but it cannot lead to a decision binding the parties, it cannot generate an excessive delay of the jurisdictional protection, it must interrupt limitation periods of rights, it must not be unbearably expensive and finally it must not exclude injunctions or some preliminary remedy in cases of extreme urgency. Summing up, at this stage the Italian legal system no longer affords this mediation procedure. Mediation survives only in the voluntary version, even in case of controversies implying public administrations.
III Arbitration in Administrative Law
Another means of adr is, of course, arbitration. Through arbitration two or more parties decide to devolve the resolution of a controversy concerning dis- posable rights to one or more arbiters, neutral adequately qualified subjects, instead of a jurisdictional authority, through the stipulation of an arbitration clause or convention. In the Italian legal system such a possibility is included in article 806 ff. of the civil procedure code, adopted in 1942 and subsequent amendments.
1 Decision of the Italian Constitutional Court, no.272 of December 6, 2012. 2 Decision of 18 March 2010, sec. Fourth, C-317/08, 318/08, 319/08, 320/08.
Part of the Italian scholarship,3 and the most recent administrative law cases qualify arbitration, both according to civil procedure rules and without procedure rules, as a private law phenomenon, completely outside the juris- dictional sphere. Other authors prefer to describe arbitration as a form of juris- diction and its final decision as a judicial act.4 Actually, both theories can be said to coexist in the Italian system, since two types of arbitration are possible: the form implying the application of civil pro- cedure rules and the one not implying the observance of such rules. The for- mer is concluded by an arbitration award, which is perfectly assimilated to a judicial decision, even from the viewpoint of the remedies both on the merit and for procedural reasons. To the contrary, the latter looks more like a con- tract, following friendly composition between the parties, as the Turin Cassation Court stated as long as at the beginning of the twentieth century.5 The distinction is particularly relevant when the arbitration procedure con- cerns a controversy belonging to the competence of the administrative law judge. While in fact, in cases about subjective rights included in the adminis- trative jurisdiction arbitrations under civil procedure rules are allowed, the form not subjected to such rules is precluded, due to the nature of public administrations. For the same reasons, though the civil procedure code con- templates arbitrations in terms of substantive rules, both are governed by legal rules and in equity. However, the former is allowed when a public administra- tion is a party and the latter obviously is not, because public bodies cannot as a matter of principles be bound by non-legal provisions of decisions. After 2000, according to article 6.2 of legislative decree 104/2010, and now to article 12 of legislative decree 104/2010, controversies about rights belonging to the jurisdiction of administrative judges can always be decided by way of arbitrations. Before 2000, the common opinion of Italian case law was that arbitration procedures with public bodies as parties could be activated only with refer- ence to controversies in civil law matters where public administrations had behaved as private subjects, i.e. using private law instruments, or where a stat- ute made arbitration procedures compulsory in the field of public procure- ments. Controversies in matters implying legitimate interests and public functions or subjective, disposable or non-disposable, rights belonged to the “exclusive” jurisdiction of administrative judges, because arbitration was con- sidered a substitute for ordinary civil jurisdiction.
3 Chiovenda, Satta; Civil Cassation, dec. no. 21585 of 2009. 4 See the writngs of Tarzia, Ricci. 5 Dec. 27.12.1904.
Yet, even after 2000 and nowadays, no arbitration is allowed in disputes con- cerning legitimate interests confronting public functions in the strict meaning and therefore non-disposable and reserved to the cognition of a judge.6 For the same reason, as suggested above, arbitrations without civil procedure rules and arbitrations in equity are forbidden when a public body is party, due to lack of transparency and public control implicit in private negotiations,7 and to non-negotiable nature of the interests involved. All clauses authorizing or prescribing arbitration clauses beyond these limits are void.8 As an exception to such a rule, a controversy concerning the compensation of damages caused to legitimate interests in order to have them quantified after a judicial decision stating the compensation in principle, because it is assumed that the plaintiff at that stage already has finally a right to compensa- tion.9 Another peculiarity of the arbitration procedure which assumes even more special character when a public subject is part is that the arbitration final decision can be appealed in the Court of appeals of the competent circuit. This means that through the arbitration procedure, when allowed, the parties, not only the plaintiff, can by-pass the rules governing the dividing line between jurisdiction, because the arbitration can be introduced in a field belonging to the administrative jurisdiction but the second instance decision is made by a judge belonging to the ordinary civil jurisdiction.10 Finally, should the arbitration decision, after becoming res judicata, be dis- regarded by one of the parties, possibly the public administration,11 absent a contempt action, the party having interest can sue the other one in an imple- mentation action in an administrative court, as if it were alleging the violation of an administrative law judge decision. A quite different story with regard to arbitration must be told in the public procurement sector, where controversies concern rights and the relationship between the parties has a contractual nature. In this field the legislator’s atti- tude has been quite schizophrenic. In 1994 the so-called Merloni statute, after the name of the pro tempore Minister, forbade it for a while with reference to works and services, while in 1997 another statute made it compulsory in cases of reservations by the contractor during the execution of public contracts.
6 Council of State, ch. VI, dec of 17.6.2003, no. 3447. 7 Cass, Grand Chamber, dec.no. 8987/2009. 8 Cass., Grand Chamber, ord. 27336 of 18.5.2008. 9 Art. 7 of the Administrative Procedure Code. 10 The Council of State shares such interpretation, after some initial doubts: Ch.IV, dec. np. 6812 of 31.12.2007). 11 Art. 112 of the Ad. Proc. Code.
The Constitutional Court declared it unconstitutional because arbitration must be voluntary and not obligatory.12 A third Merloni statute, at that point, created a special procedure to be activated in an Arbitration Chamber created inside the Independent Authority for the control of public contracts. Presently, the Code of Public Contracts,13 has been revised several times and the last version entered into force on November 28, 2012. This version contains specific provisions contemplating that when in the process of execution of a public contrary a controversy arises and no friendly agreement is possible, an arbitration procedure can be started after authorization of the top manage- ment body of the subject of public administration. Such a possibility must yet be included since the beginning in the announcement of the procurement, together with the text of the arbitration clause. It must be reminded, however, that the stability statute of 2008,14 tried again to forbid arbitrations in the pub- lic contract sector, rendering arbitration clauses void. Its application has been put off a couple of times and then abrogated by legislative decree 53 of 2010.
12 Dec.77/1997. 13 Lgs. d. no. 163/2006, art. 241. 14 l.288 of December 24, 2007, Arts. 3.19 and 3.20.
Part Eight
International Standards of Judicial Independence
∵
chapter THIRTY-ONE Judicial Independence and the Three Highest Courts in Austria
Walter H. Rechberger*
I Introduction
It is self-evident that judicial independence is one of the main characteristics of the Austrian procedural law, being laid down in Art. 87 of the Austrian Federal Constitutional Act (Bundes-Verfassungsgesetz, fca). The Austrian Constitution was enacted in 1920 and re-adopted in 1945 after World War II. It is based on different fundamental principles:1 The democratic principle, the republican principle, the federal principle, the separation of powers2 and the rule of law.3 These principles take a prominent role among the keystones constituting the Austrian Constitution. Whenever a total revision of these principles is considered, a referendum among Austrian citizens is to be held; as for a partial revision, a referendum is only compulsory if one third of the members of the National Council (Nationalrat) or the Federal Council (Bundesrat) so demands (Art. 44 Austrian fca).4 The rule of law in Austria has two main aspects: on the one hand it requires the entire public administration to be based on law. On the other hand, indi- viduals can pursue their rights not only in criminal or civil cases by means of the ordinary court system, but also for administrative purposes, by addressing the respective administrative authorities (or by being addressed by them).5 Regarding the law of civil procedure, this basic principle again has two aspects:
* Professor of Law at the Vienna University School of Law where he acted as dean from 1999 to 2006, currently he is head of the Department of Civil Procedure (Institut für Zivilverfahrensrecht). 1 Öhlinger/Eberhard, Verfassungsrecht9 (2012) mnr 66 et seqq; Walter/Mayer/Kucsko-Stadlmayer, Bundesverfassungsrecht10 (2007) mnr 146. 2 Some scholars do not consider the separation of powers as a principle of its own but attribute a place within the rule of law to it (cf. Berka, Lehrbuch Verfassungsrecht4 [2012] mnr 115). 3 Rechberger, Austria, in Taelman (ed), International Encyclopaedia of Laws: Civil Procedure (2011), mnr 3. 4 Mayer, B-VG4 (2007) 223 et seq; Berka, Lehrbuch Verfassungsrecht4 (2012) mnr 111. 5 Rechberger, Austria, in Taelman (ed), International Encyclopaedia of Laws: Civil Procedure (2011), mnr 7.
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II Existence of Independent Courts
Although not seen as a fundamental principle by itself, independence and impartiality of judges are so prominent criteria that they are explicitly referred to in the Austrian Federal Constitutional Act (fca) and in the European Convention on Human Rights (echr) as well.
III Independence of a State Court Judge
Art. 87 fca provides for the legal framework for the independence of judges belonging to state courts. Independence in the sense of this Article means that judges do not have to comply with any instructions given in the exercise of their judicial office.7 Independence is not a privilege for judges, but a guaran- tee for the legal subjects.8 On the one hand, judges are not bound by any instruction in the general exercise of their judicial office, but on the other hand, judges have to comply with instructions when dealing with the judicia- ry’s administrative issues.9 Moreover, the Austrian fca contains provisions of incompatibility. Members of the Federal Government, a Provincial government, a general representative
6 Öhlinger/Eberhard, Verfassungsrecht9 (2012) mnr 74. These two criteria par example are reflected in Art. 97 of the German Constitutional Law (Grundgesetz). 7 Walter/Mayer/Kucsko-Stadlmayer, Bundesverfassungsrecht10 (2007) mnr 770; Öhlinger/ Eberhard, Verfassungsrecht9 (2012) mnr 621; Walter, Verfassung und Gerichtsbarkeit (1960) 54, 58; Walter, Die Gerichtsbarkeit, in Schambeck (ed), Das österreichische Bundes- Verfassungsgesetz und seine Entwicklung (1980) 443 (466); Rechberger/Simotta, Zivilprozessrecht8 (2010) mnr 51. 8 Walter, Verfassung und Gerichtsbarkeit (1960) 54. 9 Walter/Mayer/Kucsko-Stadlmayer, Bundesverfassungsrecht10 (2007) mnr 770; Öhlinger/ Eberhard, Ver-fassungsrecht9 (2012) mnr 622; Walter, Verfassung und Gerichtsbarkeit (1960) 62; Walter, Die Gerichtsbarkeit, in Schambeck (ed), Das österreichische Bundes- Verfassungsgesetz und seine Entwicklung (1980) 443 (467).
10 See Art. 94 Austrian fca. 11 Walter, Verfassung und Gerichtsbarkeit (1960) 54. 12 For detailed information see Kralik, Die Bindung der Gerichte an Entscheidungen der Verwaltungsbehörde, JBl 1975, 309; Walter, Die Bindung der Zivilgerichte an rechtskräftige präjudizielle Bescheide nach AVG im Rahmen der Zivilprozessordnung im Vorfra genbereich, ÖJZ 1996, 601; Spitzer, Die Bindungswirkung von Verwaltungsakten im Zivilprozess, ÖJZ 2003, 48; Schragel in Fasching/Konecny (eds), Kommentar zu den Zivilprozeßgesetzen II/22 (2003) § 190 ZPO mnr 11 et seqq; Fucik in Rechberger (ed), ZPO3 (2006) § 190 ZPO mnr 5; Ballon, Der Einfluß der Verfassung auf das Zivilprozeßrecht, ZZP 96 (1983) 409 (446 et seq). 13 For detailed information see Rechberger, Der Wiedergänger – Zur Rückkehr der Bindung an strafgerichtliche Entscheidungen im österreichischen Zivilprozessrecht, FS Gaul (1997) 539. 14 Regarding the compliance with Art. 6 echr see Grabenwarter/Pabel, Europäische Menschenrechts-konvention5 (2012) § 24 mnr 38; Rechberger, Zur Entwicklung des Zivilverfahrens in Österreich in den letzten 50 Jahren, in FS 50 Jahre Oberösterreichische Juristische Gesellschaft (2010) 54 (60 et seq); Peukert in Frowein/Peukert, Europäische Menschenrechtskonvention3 (2009) Art. 6 mnr 205. 15 Cf. Ballon, Der Einfluß der Verfassung auf das Zivilprozeßrecht, ZZP 96 (1983) 409 (448). 16 Rechberger, Die Rechtsstellung der Beteiligten beim Sachverständigenbeweis, SV Sonderausgabe 2012, 24 (27); Deixler-Hübner, Fortschreitender Einsatz von Sachver ständigen (Teil I), RZ 1992, 251 (252); Krammer, Die “Allmacht” des Sachverständigen
(1990) 5 (18); Steininger, Der Sachverständige in der Gerichtsbarkeit, SV 1981/3, 9 (11); Dolinar, Der Sachverständigenbeweis – eine rechtsvergleichende Analyse, in FS Sprung (2001) 117 (132 f). 17 Rechberger, Die Rechtsstellung der Beteiligten beim Sachverständigenbeweis, SV Sonderausgabe 2012, 24 (27). 18 Grabenwarter/Pabel, Europäische Menschenrechtskonvention5 (2012) § 24 mnr 32; Mayer, B-VG4 (2007) 668; Peukert in Frowein/Peukert, Europäische Menschenrechtskonvention3 (2009) Art. 6 mnr 204. 19 Grabenwarter/Pabel, Europäische Menschenrechtskonvention5 (2012) § 24 mnr 33. 20 Cf. Walter, Die Gerichtsbarkeit, in Schambeck (ed), Das österreichische Bundes- Verfassungsgesetz und seine Entwicklung (1980) 443 (467 et seq); Walter/Mayer/Kucsko- Stadlmayer, Bundesverfassungsrecht10 (2007) mnr 771 et seqq. 21 European Court of Human Rights, Judgment 17.01.1970, Delcourt v. Belgium, Nr 2689/65 mnr 31; Peukert in Frowein/Peukert, Europäische Menschenrechtskonvention3 (2009) Art. 6 mnr 205. 22 See also Walter, Die Gerichtsbarkeit, in Schambeck (ed), Das österreichische Bundes- Verfassungsgesetz und seine Entwicklung (1980) 443 (475 et seq); Mayer, B-VG4 (2007) 326.
IV Impartiality of a State Court Judge
Art. 6 echr inter alia provides for the impartiality of a tribunal deciding on civil rights and obligations. Impartiality means absence of prejudice or bias.23 Hence, the court must not be biased with regard to the decision or influenced by infor- mation from outside the court room or any pressure whatsoever. Instead, the judge has to base his opinion on objective arguments based on what has been put forward during the trial.24 A court must be impartial according to the sub- jective and the objective approach. The first refers to the personal impartiality of the judges involved. This impartiality is presumed as long as the contrary has not been proven.25 The latter refers to the way the tribunal is composed and organized; a certain coincidence or succession of functions of one or more of its members may give rise to doubts as to the impartiality of the tribunal in general or as to the specific member.26 If there are justified reasons for having such doubts, even if subjectively there is no concrete indication of bias of the person in question, this amounts already to an inadmissible jeopardy of the confidence which the court must inspire in a democratic society.27 However, under specific circumstances, a party is able to waive the right to an impartial judge.28
V Independence and Impartiality in the Austrian Civil Procedure
In court proceedings, judges shall be impartial regarding each individual case they have to deal with, especially in relation to the parties and the parties’
23 echr, 01.10.1982, Piersack v. Belgium, no. 8692/79, para. 30. 24 Viering in Van Dijk/van Hoof/van Rijn/Zwaak (eds), Theory and Practice of the European Convention on Human Rights4 (2006) 614. 25 echr, 01.10.1982, Piersack v. Belgium, no. 8692/79, para. 30. 26 echr, 26.02.2002, Morris v. United Kingdom, no. 38784/97, para. 58. 27 echr, 01.10.1982, Piersack v. Belgium, no. 8692/79, para. 31. 28 Grabenwarter/Pabel, Europäische Menschenrechtskonvention5 (2012) § 24 mnr 41; Viering in Van Dijk/van Hoof/van Rijn/Zwaak (eds), Theory and Practice of the European Convention on Human Rights4 (2006) 623.
VI Right to a Lawful Judge
The principle of independence and impartiality of judges is supplemented by a further principle: the constitution and competence of the courts is laid down by Federal law and that no one may be deprived of his lawful judge (Art. 83 fca). Cases shall be allocated in advance among the judges of a court for the period provided by the law on Court organization (Art. 86 fca). A matter attributed to a judge in accordance with this allocation may be removed from his competence (by decree of the judiciary’s administrative authorities) only in case he is prevented from fulfilling his obligations or if he is unable to fulfil his duties within a reasonable time.30
VII Equality of the Three Highest Courts in Austria
The current version of the Austrian Federal Constitutional Act provides for three different and equal highest courts: the Constitutional Court (Verfassungsgerichtshof), the Administrative Court (Verwaltungsgerichtshof) and the Supreme Court (Oberster Gerichtshof). This reflects to a certain degree the principle of separation of powers:
• the Constitutional Court deals with constitutional matters, • the Administrative Court with administrative matters and • the Supreme Court with civil and criminal matters.31
29 For further information see Rechberger/Simotta, Zivilprozessrecht8 (2010) mnr 58 et seqq. 30 See also Walter, Die Gerichtsbarkeit, in Schambeck (ed), Das österreichische Bundes- Verfassungsgesetz und seine Entwicklung (1980) 443 (462 et seq). 31 RZ 2012, 130; Kodek, ÖJZ 2008, 216 (221).
VIII The Austrian Supreme Court32
The Supreme Court is responsible for safeguarding legal uniformity, legal cer- tainty and the development of the law in criminal and civil matters. It is the highest and therefore final appellate instance in those matters as provided by Art. 92 para. 1 fca. Its anchoring within the Austrian Federal Constitution means that it would be in breach of the constitution to establish a further appellate forum for civil or criminal cases ranging above the Supreme Court of Justice.33 Thus, it takes the form of the court of last resort within the system of ordinary courts (Sec. 1 para. 1 of the Supreme Court Act). However, the right of appeal to the Supreme Court may be restricted by value of the amount in dispute as well as by the significance of the subject-matter of the proceedings. These restrictions are provided for in ordinary statutes and aim at preventing the Supreme Court from being subjected to an excessive workload. The Supreme Court has 58 members – a President, two Vice Presidents, pre- siding justices of panels (referred to as Senatspräsidenten and Senatspräsi dentinnen) and other justices (the so-called Hofräte or Hofrätinnen). The Court always sits and decides in panels; at the moment, it comprises seventeen panels, eleven of which are responsible for civil matters, whereas five for crimi- nal cases, and one acts as an Appellate Court for competition law cases (Kartellobergericht).34 Additionally, there are panels for specific purposes, e.g. for disciplinary purposes,35 and also one panel for challenging procedures. Normally, a panel consists of five judges (so called simple panels according to Sec. 5 Supreme Court Act),36 whereas in some cases of only minor importance (specified in Sec. 7 Supreme Court Act) the panels consist of just three judges. In fundamental cases the number of judges is raised to eleven (the so called “verstärkter Senat”). Such cases of fundamental importance are cases where the panel wants to deviate from persistent case-law or from previous decisions rendered by a panel of eleven Supreme Court judges.37
32 See www.ogh.gv.at/en. 33 Mayer, B-VG4 (2007) 329. 34 However, the latter panel is made up of only three professional judges (unlike the normal make-up of a simple panel). In this case, the two other judges are replaced by two expert lay judges. 35 The Supreme Court is also the highest disciplinary tribunal for judges and the disciplinary court of last instance for notaries public. 36 In questions of cartel law, and in labor and social issues two of the five panel members are expert lay judges. 37 Cf. criticism by Ballon, Der Einfluß der Verfassung auf das Zivilprozeßrecht, ZZP 96 (1983) 409 (444 et seq); F. Bydlinski, Juristische Methodenlehre und Rechtsbegriff2 (1991) 514 et seq.
IX The Austrian Constitutional Court38
The Constitutional Court is the highest state body in Austria when it comes to (re-)examine constitutional law. The Austrian fca lists in its Artt. 137 et seq the various functions and responsibilities the Austrian Constitutional Court has. In principle, the Constitutional Court cannot take action on its own motion. Even if the justices are of the opinion that a certain law is problematic as regards its constitutionality, they cannot act until a person or an institution initiates proceedings enabling the intervention of the Court. When an application (Antrag) or a complaint (Beschwerde) is filed with the Constitutional Court, the Court is – assumed that the application or the complaint are admissible – required to decide. However, there are also restrictions on the right to file an application or a complaint to the Court, e.g. the exhaustion of other remedies. The review of norms (Artt. 139 to 140a fca; Normprüfung) is the core of every constitutional review. The Constitutional Court generally pronounces whether Federal or Province laws are unconstitutional (Art. 140), a proclamation on the republication of a law is illegal (Art. 139a) or an ordinance or a treaty are contrary to the law (Artt. 139, 140a) ex officio in so far as the Court would have to apply such law, proclamation or ordinance in a pending suit. Moreover, individual per- sons can file an application alleging direct infringement of personal rights result- ing from such illegality or unconstitutionality insofar as the ordinance, proclamation, law or treaty has become operative for the applicant without the delivery of a judicial decision or the issue of a ruling. In case of a judicial or an administrative proceeding, courts and independent administrative tribunals39 may also file an application. Last but not least, the Federal Government can ask for an examination of Province law and the Province Government regarding Federal law. Additionally, the Austrian Constitutional Court pronounces whether Federal laws are unconstitutional on application by one third of the National Council’s members or one third of the Federal Council’s member. Apart from that, the Constitutional Court has several more competences like jurisdiction
• regarding special administrative matters (Sonderverwaltungsgerichtsbarkeit; Art. 144 fca) • in conflicts of jurisdiction (Kompetenzkonflikt; Artt. 138, 126a and 148 et seq fca) • in matters of pecuniary claims under public law against the federation, a federal state or a community (Kausalgerichtsbarkeit; Art. 137 fca)
38 www.vfgh.gv.at/cms/vfgh-site/english/index.html. 39 Special Administrative Courts will be established instead of the independent administra- tive tribunals. The amended version of Art. 129 fca will come into force on 1 January 2014.
• in electoral matters (Wahlgerichtsbarkeit; Art. 141 fca) and • in impeachment cases regarding violations of laws by the highest bodies of the Republic (Staatsgerichtsbarkeit; Artt. 142 and 143 fca)
X The Austrian Administrative Court
The Austrian Administrative Court – together with the independent administrative tribunals and the Asylum Court40 – is one of the authori- ties competent to secure the legality of all acts of administration (Art. 129 fca). The Administrative Court pronounces on complaints which allege illegality of rulings by administrative authorities including the indepen- dent administrative tribunals, or breach of the onus on administrative authori- ties including the independent administrative tribunals to take a decision (Art. 130 fca).
XI The Relationship between the Highest Courts in Austria
In the course of time, there had been drafts to establish an additional commit- tee to coordinate the jurisprudence of the three courts, especially if they express different views on the same legal question. Such a committee exists for example in Germany (Art. 95 para. 3 Grundgesetz and Gesetz zur Wahrung der Einheitlichkeit der Rechtsprung der obersten Gerichtshöfe des Bundes).41 Other plans contained the idea of only one highest court like in Switzerland instead of the existing threefold system.42 However, these ideas have not been and will not be implemented in the near future.
XII The Relationship between the Constitutional and the Administrative Court
One of the core jurisdictions of the Austrian Constitutional Court is the spe- cial administrative jurisdiction (Sonderverwaltungsgerichtsbarkeit; Art. 144
40 The amended version of Art. 129 fca will come into force on 1 January 2014. Special Administrative Courts will be established instead of the independent administrative tri- bunals and the Asylum Court. 41 Cf. Jestaedt, Die Gesetzesbeschwere an den Verfassungsgerichtshof – Verfassungspolitische Anmerkungen, JRP 2013, 110 [112]. 42 Kodek, ÖJZ 2008, 216 (221).
XIII The Relationship between the Constitutional and the Supreme Court
Decisions of state courts are generally not deemed to be a threat to the consti- tutionally guaranteed rights of individuals.47 One of the main reasons for this view is of course the independence of the judges.
43 From 01.01.2014 onwards the work of the Asylum Court will be taken over by the Federal Administrative Court (Bundesverwaltungsgericht). 44 If the Constitutional Court finds that a right within the meaning of para. 1 above has not been infringed by the challenged ruling and if the case at hand is not in accordance with Art. 133 barred from the competence of the Administrative Court, the Court shall on the request of the applicant transfer the complaint to the Administrative Court for decision whether the applicant sustained by the ruling of the administrative authority the infringe- ment of any other right. 45 Walter/Mayer/Kucsko-Stadlmayer, Bundesverfassungsrecht10 (2007) mnr 1221. 46 Walter, RZ 1999, 62; cf. Jestaedt, Die Gesetzesbeschwere an den Verfassungsgerichtshof – Verfassungspolitische Anmerkungen, JRP 2013, 110 (116). 47 Walter, RZ 1999, 62; Kodek, ÖJZ 2008, 216 (221).
Courts are not entitled to examine the validity of duly published ordinances, proclamations on the republication of a law or a state treaty, laws and state treaties in general (Art. 89 fca). This Article reflects the idea that state courts shall only apply the law, without examining it in detail, i.e., whether any provi- sion is in violation of the constitutional law. They are only allowed to check its proper announcement.48 When the question of a certain provision’s contradic- tion with constitutional law arises, only the Austrian Constitutional Court has the power to pronounce – on being seized by the Supreme Court or by a com- petent appellate court49 – whether a Federal or Province law is unconstitu- tional in the sense of Art. 140 fca. The Austrian Supreme Court and competent appellate courts are obliged to file an application with the Constitutional Court for rescission of a law in case the judges are of the opinion that the law is in violation of the constitution. However, there are also cases where the courts refrain from applying to the Constitutional Court and instead try to interpret the legal provisions in a way that is in accordance with constitutional law.50 At the moment, only the Austrian Supreme Court and a competent appel- late court are entitled to file an application with the Constitutional Court for rescission of this law (Art. 89 para. 2 fca). From 01.01.2015 onwards, also courts of first instance will be allowed to do this.51 The existing system of review of norms does not provide for the possibility of an applicant in a court proceeding to make sure that the Constitutional Court will examine whether any legal provision applicable in the court proce- dure is in violation of the constitution (“Gesetzesbeschwerde”). In Germany for example, the German Federal Constitutional Court (Bundesverfassungsgericht) is able to examine whether a judgment given by an ordinary court does violate any constitutional rights.52 The first draft for the “Gesetzesbeschwerde” provided for the possibility of an application to the Constitutional Court after a decision of a court of final instance was rendered if the applicant claims that he has been infringed
48 Öhlinger/Eberhard, Verfassungsrecht9 (2012) mnr 626; Fasching in Fasching/Konecny (eds), Kommentar zu den Zivilprozeßgesetzen I2 (2000) Einleitung mnr 19. 49 For the amendment of the constitution in this regard see below. 50 Critical Jestaedt, Die Gesetzesbeschwere an den Verfassungsgerichtshof – Verfassungspolitische Anmerkungen, JRP 2013, 110 (115 et seq). 51 Federal Gazette I 2013/114. Cf. the suggestion made by Rohrer/Kuras (Gesetzesbeschwerde gegen Entscheidungen der ordentlichen Gerichte? ÖJZ 2012/55). 52 93% of the proceedings before the German Federal Constitutional Court concern such complaints (Jestaedt, Die Gesetzesbeschwere an den Verfassungsgerichtshof – Verfassungspolitische Anmerkungen, JRP 2013, 110 [112]).
XIV Jurisprudence shall be based on Law
The first aspect of the principle of rule of law is the fact that the jurisprudence shall be based on law. It does not jeopardize the independence of state court judges, but is essential to the principle of separation of powers. As Montesquieu already pointed out: “Les juges de la nation ne sont […] que la bouche qui pro- nounce la parole de la loi.”56 State courts are not more than the mouth which pronounces the law.
53 Cf Initiativantrag 2031/A 24. GP. 54 Rohrer/Kuras, Gesetzesbeschwerde gegen Entscheidungen der ordentlichen Gerichte? ÖJZ 2012/55. Cf. Jestaedt, Die Gesetzesbeschwere an den Verfassungsgerichtshof – Verfassungspolitische Anmerkungen, JRP 2013, 110 (115). 55 Federal Gazette 2013/114. Cf. Raschauer, Subsidiarantrag auf Normenkontrolle wird im NR beschlossen, ZFR 2013/114; AnwBl 2013, 464. 56 Montesquieu, De L’Esprit des Lois I (1764) 391. “The national judges are no more than the mouth that pronounces the word of the law.”
XV Basic Principle
Art. 18 fca is the main provision in this regard. It stipulates that the entire pub- lic administration shall be based on law. Executive authorities are only entitled to act in accordance with the provisions explicitly laid down in the constitu- tion, in constitutional and by simple laws, in regulations and in other legal acts. The wording of this Article only refers to the public administration. The Austrian constitutional law takes the applicability of this principle on state courts for granted.57 That is why the legislator did not consider it necessary to reiterate this well established principle in the Austrian fca.58 Any other result would jeopardize the use of codifications.59 Therefore, it is generally accepted that decisions by state courts shall also be based on law.60 This ensures the predictability of judgments and safeguards legal certainty.61 As already discussed, civil courts are not entitled to examine the validity of duly published law. It is up to the Constitutional Court to pronounce that a Federal or Province law is in violation of the constitution.62
XVI Development of the Law by Judicial Decisions
The fca does not allow the development of the law by judicial decisions explic- itly. The development of the law by judicial decisions is in contradiction with
57 Öhlinger, Legalitätsprinzip und Europäische Integration – Zur Gesetzesbindung des Verwaltungshandelns aus der Sicht des EU-Beitritts, in FS 75 Jahre Bundesverfassung (1995) 635 (636 et seq); Walter/Mayer/Kucsko-Stadlmayer, Bundesverfassungsrecht10 (2007) mnr 572; Mayer, B-VG4 (2007) 133; Adamovich/Funk/Holzinger/Frank, Österreichisches Staatsrecht II2 (2013) mnr 34.009. 58 In Germany, this basic principle is explicitly stipulated in Art. 1 para. 3 and Art. 20 para. 3 German Constitutional Act (Grundgesetz). 59 Hassemer, Gesetzesbindung und Methodenlehre, ZRP 2007, 213 (214). 60 Austrian Constitutional Court 05.10.1989, G 70/89, Nr. 12.185; Ballon, Der Einfluß der Verfassung auf das Zivilprozeßrecht, ZZP 96 (1983) 409 (443); Öhlinger/Eberhard, Verfassungsrecht9 (2012) mnr 625; Ballon, Einige Probleme der richterlichen Rechtsfortbildung, JBl 1972, 598 (600); Rüffler, Analogie: Zulässige Rechts-anwendung oder unzulässige Rechtsfortbildung, JPR 2002, 60 (65 et seq); Griss, Die Rechtsprechung als Organ der Rechtsfortbildung im Zivilrecht, in FS 200 Jahre ABGB (2011) 1521. 61 Mayer-Maly, Über die der Rechtswissenschaft und der richterlichen Rechtsfortbildung gezogenen Grenzen, JZ 1986, 557 (561). 62 For further information see The Relationship between the Constitutional and the Supreme Court.
63 Ballon, Einige Probleme der richterlichen Rechtsfortbildung, JBl 1972, 598 (600); Rüffler, Analogie: Zulässige Rechtsanwendung oder unzulässige Rechtsfortbildung, JPR 2002, 60 (66). 64 Kramer, Juristische Methodenlehre3 (2010) 283. 65 Kramer, Juristische Methodenlehre3 (2010) 227 et seqq. 66 Kramer, Juristische Methodenlehre3 (2010) 177. 67 Fasching in Fasching/Konecny (eds), Kommentar zu den Zivilprozeßgesetzen I2 (2000) Einleitung mnr 110. 68 Fasching in Fasching/Konecny (eds), Kommentar zu den Zivilprozeßgesetzen I2 (2000) Einleitung mnr 110. 69 Hirsch, Im Namen des Volkes: Gesetz – Recht – Gerechtigkeit, ZRP 2012, 205 (207). 70 Adamovich/Funk/Holzinger/Frank, Österreichisches Staatsrecht II2 (2013) mnr 34.010.
Sec. 502 Austrian Civil Procedure Code (cpc) states that the revision of a decision of an appellate court is permissible if the decision depends on the solution of a legal question having fundamental significance for inter alia the development of the law. The Austrian Supreme Court can thereby promote the development of law by introducing new and by modifying existing practices.71 However, Sec. 502 cpc does not only refer to the development of law but also to legal certainty. Hence, the Austrian Supreme Court shall be cautious when developing new law because every change of developed case law is contrary to the concept of legal certainty.72 It is generally understood that the fca took this differentiation between civil and administrative matters regarding the binding effect of laws for granted.73 This fact gives the state courts more power to find an appropri- ate solution when deciding a civil case. However, the basic choice of the legislator and the fundamental principles of any law have to be respected at any time. Consequently, the Austrian state courts are not only allowed to develop new law within certain boundaries, they are obliged to do so because there is no other way to adequately reflect changes in the society in due time.74 However, any developments of new law by state courts must not move against the spirit and purpose of the law. Additionally, courts shall solve cases not due to their individual aspects but take a general rule as a basis so that the spirit and the purpose of the ruling can be seen as guidance for similar situations.75 Nonetheless, Sec. 12 cc restricts the impact of judgments.76
XVII Examples in Austrian Civil Procedure Law
Examples for the development of law by judicial decisions can be found in various fields of law and various civil law jurisdictions. For example, the Swiss Federal Court (Bundesgericht) adopted such an approach regarding the
71 Zechner in Fasching/Konecny (eds), Kommentar zu den Zivilprozeßgesetzen IV/12 (2005) § 502 ZPO mnr 56. 72 Griss, Die Rechtsprechung als Organ der Rechtsfortbildung im Zivilrecht, in FS 200 Jahre ABGB (2011) 1521 (1538). 73 Adamovich/Funk/Holzinger/Frank, Österreichisches Staatsrecht II2 (2013) mnr 34.010. 74 Hirsch, Im Namen des Volkes: Gesetz – Recht – Gerechtigkeit, ZRP 2012, 205 (208). 75 Kramer, Juristische Methodenlehre3 (2010) 237. 76 F. Bydlinski, Juristische Methodenlehre und Rechtsbegriff2 (1991) 501; F. Bydlinski, Hauptpositionen zum Richterrecht, JZ 1985, 149.
77 Kramer, Juristische Methodenlehre3 (2010) 229. 78 See for example German Federal Constitutional Court, Unterhaltspflicht bei fehlgeschla- gener Sterilisation oder fehlerhafter genetischer Beratung, NJW 1998, 519. For further situ- ations German courts where confronted with see Hirsch, Im Namen des Volkes: Gesetz – Recht – Gerechtigkeit, ZRP 2012, 205 (207). 79 See for example Gschnitzer, Schafft Gerichtsgebrauch Recht? in FS Hundertjahrfeier OGH (1950) 40 (44 et seqq); Griss, Die Rechtsprechung als Organ der Rechtsfortbildung im Zivilrecht, in FS 200 Jahre ABGB (2011) 1521 (1522 et seqq). 80 Rechberger, Die Methode im Zivilprozess – ein Stiefkind? in FS Mayer 595 (600 et seqq). 81 Austrian Constitutional Court 12.10.1990, G 73/89. 82 Austrian Supreme Court 17.10.1995, 1 Ob 612/95. 83 For detailed information see Rechberger, Der Wiedergänger – Zur Rückkehr der Bindung an strafgerichtliche Entscheidungen im österreichischen Zivilprozessrecht, FS Gaul (1997) 539. 84 For detailed information see Rechberger, Der österreichische Oberste Gerichtshof als (Ersatz-)Gesetzgeber, in FS Schütze (1999) 711.
XVIII Own Remarks
Montesquieu’s concept of national judges does not seem to be accurate any- more. The development of law by judicial decision in the above mentioned cases goes so far that the Austrian Supreme Court can be considered as a (sup- plement) legislator.90 The contradiction to the principle of separation of pow- ers is obvious. This is an example that the importance of the principle of separation of powers has decreased since the enactment of the Austrian fca.
85 Rechberger/Simotta, Zivilprozessrecht8 (2010) mnr 358. 86 Austrian Supreme Court 08.04.1997, 1 Ob 2123/96d. 87 Rechberger/Simotta, Zivilprozessrecht8 (2010) mnr 358. 88 Legal Information System RS0040182 and RS0005394. 89 Rechberger, Die Methode im Zivilprozess – ein Stiefkind? in FS Mayer (2011) 595 (609 et seq). 90 Rechberger, Der österreichische Oberste Gerichtshof als (Ersatz-)Gesetzgeber, in FS Schütze (1999) 711.
Although there are legal provisions, like Sec. 7 cc and Sec. 502 cpc, indicat- ing that the development of the law by judicial decisions is permitted, this does not answer the question whether such practices are in violation of consti- tutional law. Two further aspects are worth considering in this regard. When discussing the development of law by judicial decisions only decisions of the Austrian Supreme Court are dealt with. As a matter of course, decisions of a district court (Bezirksgericht) or a court of first instance (Landesgericht) are in most cases not considered to have a high persuasive authority in legal questions. Hence, specific effects of Austrian Supreme Court decisions shall be consid- ered as well. As already pointed out, decisions of the Austrian Supreme Court are final and binding and cannot be reviewed by the Austrian Constitutional Court.91 To a certain extent, this means that the Austrian Supreme Court was given free rein. Moreover, the Supreme Court can only deviate from persistent case law or decisions by way of establishing a panel of eleven judges (verstärk- ter Senat; Sec. 8 Supreme Court Act).92 This provision assures legal security.93 Having in mind the three above mentioned examples it is curious to see that any legal development of law by panels of only five judges do not grant that amount of legal certainty as the Supreme Court does not refrain from changing his mind every now and then. There are two different situations where the Austrian Supreme Court may have the obligation to act as legislator. These are the two situations described earlier: on the one hand situations that are not covered by any specific legal provision and on the other hand situations where there is a legal provision but this provision does not seem to be appropriate anymore due to changes in soci- ety. Development of law by judges is therefore not a question of permissive- ness but a necessary duty of state courts, especially the Austrian Supreme Court.94 Considering the first two of the above mentioned examples the Austrian Supreme Court shall not be blamed. The Austrian cpc does not contain a detailed provision on the res judicata effect of civil decisions and especially not
91 For the relationship between the Constitutional and the Supreme Court see above. 92 Cf. criticism by Ballon, Der Einfluß der Verfassung auf das Zivilprozeßrecht, ZZP 96 (1983) 409 (444 et seq); F. Bydlinski, Juristische Methodenlehre und Rechtsbegriff2 (1991) 514 et seq. 93 Griss, Die Rechtsprechung als Organ der Rechtsfortbildung im Zivilrecht, in FS 200 Jahre ABGB (2011) 1521 (1522). 94 Griss, Die Rechtsprechung als Organ der Rechtsfortbildung im Zivilrecht, in FS 200 Jahre ABGB (2011) 1521 (1537).
95 Cf. Gschnitzer, Schafft Gerichtsgebrauch Recht? in FS Hundertjahrfeier OGH (1950) 40 (52). 96 For example Austrian Supreme Court 06.06.1978 4 Ob 16/78 = SZ 51/75 = ArbSlg 9.703; Legal Information System RS0008880: “Unbefriedigende Gesetzesbestimmungen zu ändern, ist nicht Sache der Rechtsprechung, sondern der Gesetzgebung; die Gerichte haben nur die bestehenden Gesetze anzuwenden; es ist hingegen keineswegs ihre Aufgabe, im Wege der Rechtsfortbildung oder einer allzu weitherzigen Interpretation möglicher Intentionen des Gesetzgebers Gedanken in eine Gesetz zu tragen, die darin nicht enthalten sind. Als maßgebend kann vielmehr nur der objektive Sinn eines gehörig kundgemachten Gesetzeswortlautes angesehen werden. Ein Rechtssatz, der im Gesetz nicht einmal angedeu- tet ist, kann auch nicht im Wege der Auslegung Geltung erlangen.” 97 Hirsch, Zwischenruf – der Richter wird’s schon richten, ZRP 2006, 161; critically Rüthers, Gesetzesbindung oder freie Methodenwahl? – Hypothesen zu einer Diskussion, ZRP 2008, 48 (49).
XIX Conclusion
Decisions of the three highest courts are final and binding and are not subject to review by any other Austrian court.98 To a certain extent, this gives those courts free rein. However, they are nonetheless bound by law (Art. 18 fca). The binding effect of laws does not by itself violate the independence of state court judges.99
98 Cf. Jestaedt, Die Gesetzesbeschwere an den Verfassungsgerichtshof – Verfassungspolitische Anmerkungen, JRP 2013, 110 [112]. 99 F. Bydlinski, Hauptpositionen zum Richterrecht, JZ 1985, 149 (152).
Shimon Shetreet*
I Introduction
In this chapter we shall offer an analysis of the amendments to the Mt. Scopus Standards of Judicial independence of 2008 that were adopted at the Vienna 2011 and Ghent 2012 conferences. These amendments dealt with a number of central issues that warranted the study and deliberation of the International Project of Judicial Independence. These issues include: the relationship between top national, international, and supranational courts; the duty of the international and supranational courts to respect basic legal principles as reflected by the Supreme Courts of member states; the significance of admin- istrative adjudicators; limits on judges’ consultations; the significance of an expressly provided procedure for selecting a Chief Justice; the significance of building a culture of judicial independence; and guidelines regarding public inquiries by judges. The chapter also outlines the agenda for future discussions at the project’s next conferences. The focus will be upon the legal profession and judicial inde- pendence, global judicial ethics codes, and online justice or Online Dispute Resolution (“ODR”). The chapter begins by offering a brief report on the development of the Project of Judicial Independence of the association of judicial Independence and World Peace (“JIWP” Association) and the drafting of significant interna- tional standards that members of the jiwp Association have both contributed to and initiated. These include the New Delhi Code of Minimum Standards of Judicial Independence 1982, the Montreal Universal Declaration on the Independence of the Justice System 1983, research projects and reports on
* Shimon Shetreet, LLB, LLM, Hebrew University, MCL, DCL, University of Chicago, holds the Greenblatt Chair of Public and International Law at the Hebrew University of Jerusalem, and is past chairman of the Sacher Institute of Legislative Research and Comparative Law. Author and editor of many books and articles. President International Association of Judicial Independence and World Peace.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_033
II Development of the Project of International Standards of Judicial Independence
Between 1980 and 1982, members of the International Project of Judicial Independence and jiwp Association participated in the drafting of the New Delhi Code of Minimum Standards of Judicial Independence in cooperation with the International Bar Association. The code was drafted in Lisbon and Jerusalem, with final approval obtained in New Delhi in 1982.1 A year later, in 1983, members of the project took part in Montréal’s Conference on the Independence of Justice, and therein drafted the Universal Declaration of the Independence of Justice 1983.2 Two years later, in 1985, the then collective works of the International Project of Judicial Independence were published by Shimon Shetreet and Jules Deschenes in Judicial Independence: The Contemporary Debate (Martinus Nijhoff: 1985). Members of the association were active in the research and study of human rights and presented country reports and general reports on topics ranging from human rights, the rule of law, world peace, and judicial independence at international professional and academic conferences. By these studies and reports, the members of the association made a substantial impact on aca- demic, professional, and judicial approaches to the subjects, as well as, influ- encing the awareness of the general communities. In 1986, the members of the association took part in the Twelfth Congress of Comparative Law in Sydney and Melbourne, Australia (1986), and presented a General Report on Human Rights. Members of the association took active part in the preparation of a major report on Judicial Independence for the Seventh International Congress of Procedural Law 1983 in Wurzburg and again in 1991 in Lisbon and Coimbra. Members of the association contributed to the study of the role of judges in society at a conference on the Fiftieth Anniversary of the International Association of Procedural Law in 2000 at the University of Ghent which focused on ‘The Discretionary Power of the Judge’.3
1 See http://www.jiwp.org/-!new-delhi-declaration/c134r. see Appendix II Part IX of this Volume. 2 http://www.jiwp.org/-!montreal-declaration/c1bue. 3 See details below text and notes 10–12.
The International Project of Judicial Independence initiated the Mt. Scopus conference series for the drafting and amending of the Mt. Scopus International Standards of Judicial Independence.4 The Mt. Scopus Standards of the jiwp Association are cosponsored by the Hebrew University Faculty of Law and the University of Cambridge Public Law Centre. The conferences have been orga- nized in cooperation with many universities and are a testament to the wide- spread academic and professional cooperation at an international scale. In these conferences distinguished jurists, members of the jiwp Association, adopted and amended the Mt. Scopus Standards and presented their research on judicial independence. Over the years, and after the adoption of a certain concept, the need for further adjustment was recognised. For example, the concept of “a representa- tive judiciary” was debated in the course of several earlier discussions and later changed in the Montreal Declaration and Mt. Scopus Standards to include a more refined formulation regarding the duty of fairly reflecting society, or what we now refer to as a “reflective judiciary.”5 Also there was no need to enter exceptions for the United Kingdom or to incorporate the phrase “except in long and established democratic traditions” as was used in the New Delhi Code. This is because the United Kingdom adopted the Human Rights Act 1998 and the Constitutional Reform Act of 2005 making the matter moot.6 In other conferences issues were reviewed and addressed as necessary over the course of many years.
A New Delhi Code of Minimum Standards of Judicial Independence 1982
Between 1980 and 1982, the members of the International Project of Judicial Independence participated in the drafting of the New Delhi Code of Minimum
4 See Appendix I, Part IX, this Volume. 5 See Article 2.15 of the Mt. Scopus Standards: “The process and standards of judicial selection shall give due consideration to the principle of fair reflection by the judiciary of the society in all its aspects.” See also The Montreal Declaration, Article 2.13. 6 For an example of this exception in the New Delhi Code of Minimum Standards of Judicial Independence see Article 3(b): “Appointments and promotions by a non-judicial body will not be considered inconsistent with judicial independence in countries where, by long his- toric and democratic tradition, judicial appointments and promotion operate satisfactorily” Appendix II, Part IX, this volume. For analysis of the Constitutional Reform Act of 2005 see Shetreet, Creating a Culture of Judicial Independence: The practical Challenge and the Conceptual and Constitutional Infrastructure, in S. Shetreet and C. Forsyth (eds.), The Culture of Judicial Independence: Conceptual Foundations And Practical Challenges 17, at 51 ff., (Martinus Nijhoff – Brill Publishers, 2012).
Standards of Judicial Independence, in cooperation with of the International Bar Association. The Code was initiated in Berlin 1980, drafted in both Lisbon (in 1981) and in Jerusalem (in 1982), with final approval obtained in October 1982 in New Delhi. Judicial independence has been highlighted as an issue by numerous incidents of violation across many parts of the world. These viola- tions of judicial independence took many forms and occurred in countries with very different systems of government. A number of reasons called for the review of conceptions, traditions, and principles bearing on judicial indepen- dence, such as the apparent diversity and conflicts between various countries in the practice of law, concerning judges and judicial independence espe- cially and the development of in political and social conditions in modern society generally. Moreover, the very concept of what constituted the nature of judicial office, the role of an individual judge, and the judicial branch over- all had undergone serious changes. The time was ripe for a crystallization of these evolving concepts in a set of internationally applicable minimum standards. Thus, in August 1980, leaders of the project began developing a compre- hensive code in conjunction with the International Bar Association. After two years of intensive work, the end product weaved the collective knowledge of the General Report, 29 national reports, and 15 topical reports. The national reports followed the guidelines laid down by the General Rapporteur, detail- ing the specific questions that the National Rapporteurs were requested to address. It was also in 1980, at the 18th Biennial Convention in Berlin, that at the ini- tiative of the members of the project that the International Bar Association embarked upon a separate project for the development of an international comprehensive code of minimum standards of judicial independence. The project was the responsibility of the Committee on Administration of Justice in the Section of General Practice. Justice D.K. Haese of Australia, the Chairman of the Committee, acted as project coordinator and Professor Shimon Shetreet served as General Rapporteur of the Project. Justice Haese succeeded Chief Justice L. King, also of Australia, in the office of Project Coordinator, in the beginning of 1982. National rapporteurs and topical Rapporteurs of the highest academic and professional standing from over 30 countries took part in the Project. The participating countries were geographically representative of the world and fairly represented the major legal families of judicial systems, as well as, the major systems of government.7
7 The one exception being that the communist-bloc countries abstained from involvement in the project.
After the initiation of the project in August 1980 substantial work had already been completed. The first draft of the minimum standards were pre- sented by the General Rapporteur, Professor Shimon Shetreet, to the Lisbon conference in May 1981, where the Draft Standards were subsequently debated and revised. Based on the resolutions of the Lisbon Conference and other sug- gestions made in the course of the proceedings, the General Rapporteur pre- pared the a revised draft, and again submitted the document for debate and approval, this time at the Jerusalem Planning Conference of March 1982. The standards approved in Jerusalem, the fruits of the Jerusalem Conference, were submitted for final approval to the nineteenth iba Biennial Convention in New Delhi in October 1982, and approved with only slight changes. The work of the National Rapporteurs and the Project Officers were gratefully acknowledged and their contribution is deeply appreciated still.8 Special recog- nition is warranted for the leadership of Chief Justice King and Justice Haese, the project coordinators, for their invaluable and indispensable work. Thanks are also due to the iba Head Office in London for their help throughout the project. Over the course of the project the leading officers of the project have been in touch with other organisations involved in similar efforts such as the International Commission of Jurists in Geneva, whose representatives attended our 1981 Lisbon conference, our March 1982 Jerusalem conference, and finally our October 1982 New Delhi conference.
B Montreal Universal Declaration on the Independence of Justice Adopted in the Montreal Conference 1983
In 1983, a year after the New Delhi Code was adopted, members of the project took part in Montréal’s Conference on the Independence of Justice, and in the drafting of the Universal Declaration of the Independence of Justice 1983.
8 Officers and Rapporteurs of The New Delhi Code of Minimum Standards of Judicial Independence: (General Coordinators) Justice David K. Haese, Chief Justice Leonard King, (General Rapporteur) Shimon Shetreet, (National Reporters) Michael D Kirby of Australia, Hans W. Fasching of Austria, M.A. Mutaleb of Bangladesh, Marcel Storme of Belgium, Celso Agricola Barbi of Brazil, Irma Lager of Finland, F. Grivartde Kerstrat of France, Enoch D. Kom of Ghana, Peter Schlosser and Walther Habseheld of the Federal Republic of Germany, Peter Gilles and Manfred Wolf of Germany, K.D. Kerameus of Greece, D.B. Casson and I.R. Scott of Great Britain, Anand Prakash of India, Shimon Shetreet of Israel, Alessandro Pizzorusso of Italy, Yasuhei Taniguchi and Nobuo Kumamuto of Japan, J.M. Ganado of Malta, B.J. Van Heyst of the Netherlands, Niki Tobi of Nigeria, Haakon I Flaraidsen of Norway, Alexandra M. Pessoa Vaz of Portugal, G.D. Andrew of South Africa, A. Trani Pelayo of Spain, Andrea Audersson of Sweden, Joseph. M.N. Kakooza of Uganda, Robert B. McKay and James M. Parkison of the United States of America.
The World Conference on the Independence of Justice was held in June 1983 at the Queen Elizabeth Hotel under the leadership of then Chief Justice of Quebec Jules Deschenes. Chief Justice Deschenes, succeeded in the difficult task of gathering under one roof approximately 130 distinguished jurists repre- senting some 20 international organisations in order to approve a Universal Declaration on the Independence of Justice. Long before the conference in Montreal however, a steering committee developed a draft of the Declaration that was later put before the participants of the Conference. The debates in Montreal were conducted via five commis- sions, which discussed each of the five chapters of the declaration:
The International Judges (led by Judge Oxner and Batonnier Pettiti); The National Judges (led by Justice Gonthier and Shimon Shetreet); The Lawyers (led by Bttonier Louis Phillippe de Grandpr, and Debo Akande); The Jury (led by Chief Justice William Sinclair and Mr James Parkison; and The Assessors (led by Judge Guerin and Judge Poirier).
The chapters of the declaration were then approved by a plenary session of the Conference. Among the organisations represented in Montreal were the International Bar Association, International Commission of Jurists, International Court of Justice at the Hague, LAWASIA, the European Court of Human Rights, Amnesty International, and numerous international lawyers’ organizations.9
C Publications on Judicial Independence
Two years after the Montreal Declaration, in 1985, the works of the International Project of Judicial Independence were published in “Judicial Independence: the Contemporary Debate” (Martinus Nijhoff: 1985), edited by Shimon Shetreet
9 Chairman of the Conference: Chief Justice Jules Deschens, Chief Justice of Quebec. Commission of International Judges: (Chairs) Judge Oxner and Batonnier Pettiti. Commission of National Judges: (Chairs) Justice Gonthier and Professor Shimon Shetreet, Commission of Lawyers: (Chairs) Battonier Louis Phillippe de Grandpre and Debo Akande, Commission of the Jury: (Chairs) Chief Justice William Sinclair and Mr James Parkison. Commission of the Assessors: (Chairs) Judge Guerin and Judge Poirier. Other Rapporteurs: Debo Akande, Marc- Andrg Ballard, Mauro Cappelletti, Judge Jules Deschenes, Bttonier Louis Phillippe de Grandpre, Judge Guerin, Justice Gonthier, Justice Haese, Lord Lane, Professor Mark MácGuigan, Judge Oxner, Mr James Parkison, L.E.Pettiti, Judge Poirier, Simone Rozes, Professor Shimon Shetreet, Manfred Simon, William Sinclair, L.M. Singhvi, and Sir Ninian Stephen.
10 Shetreet, “Limits and Promises of International Norms and Procedures for the Protection of Human Rights.” in S. Goldstein (ed.), The Israeli Reports To The 12th Congress Of Comparative Law (The General Report to the 12th Congress of Comparative Law in Sydney – Melbourne) pp. 1–103, (1986). 11 See Shetreet and Picardi, “Independence and Responsibility of Judges and Lawyers: General Report to the 1991 International Congress of the World Association on Procedural Law in Role and Organization of Judges and Lawyers in Contemporary Societies,” Papers of the Ninth World Conference on Procedural Law, Coimbra/Lisboa, Portugal, 1991). 12 See See Shetreet, The Discretionary Power of the Judge’ in Marcel Storme and Burckhardt Hess (eds.), Discretionary Power of the Judge: Limits and Controls (Procedure, Gent 2000; Kluwer 2003), pp. 73–116. For publications see www.jiwp.0rg see For illustrations see pub- lications of the members of the jiwp Association at www.jiwp.0rg and see Shetreet, Limits and Promises of International Norms and Procedures for the Protection of Human Rights, in S. Goldstein (ed.), The Israeli Reports To The 12th Congress Of Comparative Law (The General Report to the 12th Congress of Comparative Law in Sydney – Melbourne) pp. 1–103, (1986), Shetreet, The Challenge of Expeditious Justice: Maintaining Justice in the Pursuit of Efficiency, International Legal Practitioner (Journal of the International Bar Association) 44–48, (June 1988). Shetreet, “Independence and Responsibility of Judges and Lawyers: General Report to the 1991 International Congress of the World Association on Procedural Law in Role and Organization of Judges and Lawyers in Contemporary Societies,” Papers Of The Ixth World Conference On Procedural Law 119–186, (Coimbra – Lisboan, Portugal, 1991; Shetreet, The Discretionary Power of the Judge, in M. Storme and B. Hess (eds.), Discretionary Power Of The Judge: Limits And Control 73–116, (ProcedureGent 2000; Kluwer 2003) (On the occasion of the 500th Anniversary of the University of Gent and 50th Anniversary of the International Association of Procedural Law); Shetreet,
Members of the association have also been active in the Culture of Peace Project and in the Religions for Peace Organisation International (rpo International) and have organized numerous conferences all around the world, including in Trento, Gaflei, Rhodes, Aqaba, Amman, and Casablanca. The asso- ciation believes that justice and peace go hand in hand and mutually reinforce each other. The Culture of Peace’s vision calls for strengthening peace by bas- ing it on four foundational manifestations: security or political peace, eco- nomic peace, cultural or fundamental values peace, and religious peace.13
D Mt. Scopus Standards of Judicial Independence 2008
The International Association of Judicial Independence and World Peace has continued its efforts to promote judicial independence by initiating a revision of the Standards of Judicial Independence within the framework of the International Project on Judicial Independence. Accordingly, since their adoption in 2008 at Mt. Scopus Jerusalem they have been named Mt. Scopus International Standards of Judicial Independence. The project has since been moulded by various con- ferences held around the globe at the association’s behest. The Mt. Scopus Standards Conference Series have been jointly sponsored by the Hebrew University of Jerusalem Faculty of Law and the University of Cambridge Centre of Public Law. Professor Shimon Shetreet, Greenblatt Professor of Public and International Law at Hebrew University of Jerusalem and former Director of the Sacher Institute of Comparative Law, serves as the General Coordinator. Thus far ten Conferences have been held at the following Universities: Hebrew University of Jerusalem (March 2007),14 Vaduz (December 2007),15 Hebrew University (March 2008),16 Jagiellonian University (November 2008),17
Judicial Discretion in Israel in M. Storme and B. Hess (eds.), Discretionary Power Of The Judge: Limits And Control 485–520, (Procedure Gent 2000;Kluwer 2003) (On the occasion of the 500th Anniversary of the University of Gent and 50th Anniversary of the International Association of Procedural Law); Shetreet, Judicial Independence and Judicial Review of Government Action: Necessary Institutional Characteristics and Appropriate Scope of Judicial Review, in C. Forsyth, M. Elliott, S. Jhaveri, A. Scully-Hill, and M. Ramsden (eds.), Effective Judicial Review: A Cornerstone Of Good Governance 187–207, (2010). 13 See Shetreet, “Peace Today: Reflections on Four Foundations of Culture of Peace” in Prince Nikolaus Von und Zu Liechtenstein and Cheikh Gueye (eds.), Peace and Intercultural Dialogue, Universitaetverlag, Heidelberg and International Academy of Philosophy: 2005, pp. 195–205. 14 http://www.jiwp.org/-!ji-jerusalem-conference-2007/c1v6k. 15 http://www.jiwp.org/-!ji-vadouz-conference-2007/c1ww7. 16 http://www.jiwp.org/-!ji-conference-jerusalem-2008/cl5c. 17 http://www.jiwp.org/-!ji-conference-krakow-2008/c21e8.
Cambridge University (August 2009),18 University of Utah (October 2010),19 University of Vienna (May 2011),20 City University of Hong Kong,21 University of Ghent (October 201222), and at the University of San Diego (August 2013).23 The next international conferences on judicial independence will be held in Moscow in May 2014 and in Osnabrück, Germany in October 2014. The Mt. Scopus conferences were all co-chaired by Professor Shimon Shetreet and by chairpersons from the respective host university: Professor Maimon Schwarzschild (University of San Diego), Professor Marcel Storme (University of Ghent, Belgium), Professor Anton Cooray (City University of Hong Kong), Professor Walter Rechberger (University of Vienna), Dean Hiram Chodosh and Professor Wayne McCormack (University of Utah), Professor Christopher F. Forsyth (University of Cambridge), Professor Fryderyk Zoll (Jagelonian University, Krakow). Furthermore, the Vaduz Conference for the Drafting of the International Standards of Judicial Independence was co-chaired by Professor Christopher F. Forsyth, Professor Marcel Storme, and the late H.E. Markus Buechel (who also chaired the Local Organising Committee). Professor James R. Crawford of the University of Cambridge co-chaired the conference in 2007 (at the Hebrew University of Jerusalem). The Mt. Scopus Standards were developed with significant help from the members of the consultation group of the International Project of Judicial Independence.24
E The Second Volume on Judicial Independence Published in 2012 (Third Volume Expected 2014)
The Second volume on judicial independence was published in 2012 by Martinus Nijhoff and, in 2014, the 3rd volume will be published by the same publishers. This Third volume will be also be a part of the three volume work on judicial independence published by the International Project of Judicial Independence. This 3rd volume is titled Culture of Judicial Independence: Rule of Law and World Peace edited by Shimon Shetreet (2014). The two previous volumes, were Judicial Independence: The Contemporary Debate (1985), edited by Professor Shimon Shetreet and Chief Justice Deschenes, and The Culture of
18 http://www.jiwp.org/-!ji-conference-cambridge-2009/c1umr. 19 http://www.jiwp.org/-!ji-conference-utah-2010/cnn0. 20 http://www.jiwp.org/-!ji-conference-vienna-2011/c1uyy). 21 In March 2012,http://www.jiwp.org/-!ji-conference-hong-kong-2012/cgve). 22 http://www.jiwp.org/-!ji-conference-ghent--2012/c1x5g. 23 http://www.jiwp.org/-!ji-conference-san-diego--2013/c1nww. 24 See the list of the Consultation Group at Appendix I, Part IX of this volume.
Judicial Independence: Conceptual Foundations and Practical Challenges edited by Shimon Shetreet and Christopher Forsyth (2012).
III Amendments to the Mt. Scopus International Standards of Judicial Independence
A The Relations between the Top National Courts and International Tribunals and Supranational Courts
The issue of the relations between national top courts, international, and supranational courts has been at the centre of controversy for a long time. It has been specifically debated and discussed in public discourse.25 But it has also been reflected in decisions from the top national courts, as in the deci- sions regarding the European Arrest Warrant26 in Germany, Poland, and the Czech Republic,27 and in the decisions regarding control orders in the United
25 See the reports on the public speeches of Lord Kerr of the U.K. Supreme Court, Lord Kerr, the Relationship between echr and Domestic Courts, available at http://humanrights.ie/ constitution-of-ireland/lord-kerr-on-the-relationship-between-ecthr-and-domestic -courts/, calling for a dialogue to avoid conflict. See the statement of Lord Judge, the lcj of England and Wales, before the U.K. House of Lords Constitution Committee, http:// jurist.org/paperchase/2011/10/uk-top-judge-national-courts-not-bound-by-europe -rights-court.php, that U.K. Courts are not bound by the decisions of the ECtHR but should only consider echr decisions when deciding cases. But see the statement of Lord Philips, the President of the UK Supreme Court that the ECtHR decisions will always con- trol U.K. Courts as long as the Human Rights Act 1998 remains in effect. Id. 26 European Arrest Warrant (eaw) is a mechanism to establish judicial cooperation between EU members, so as a judicial order of arrest in one EU state shall be respected and imple- mented in another member state. This means in practical terms that extradition proce- dures are unnecessary. The issue arose regarding the application of this mechanism to persons who are citizens of their own state. 27 For the European Arrest Warrant Decisions see cases in Germany, Poland, and Czech Republic. The German Federal Constitutional Court declared unconstitutional the laws implementing the European Arrest Warrant. C. Tomuschat, Inconsistencies. The German Federal Constitutional Court on the European Arrest Warrant, European Constitutional Law Review, 2006, 209; S. Molders, Case note, The European Arrest Warrant in the German Federal Constitutional Court, German Law Journal, 2006, 45; N. Nohlen, Germany: The European Arrest Warrant case, International Journal of Constitutional Law, Volume 6, 2008, 153. The Polish Constitutional Tribunal also declared unconstitutional the Polish ewa leg- islation. Polish Constitutional Tribunal, European Arrest Warrant, 27 April 2005, No. 1/05. see Oreste Pollicino, The New Relationship between National and the European Courts after the Enlargement of Europe: Towards a Unitary Theory of Jurisprudential
Kingdom.28 Debate over how to best resolve this issue remains and there is a vast difference of opinion on the extent to which national courts and national organs of member states must obey international and supranational courts in matters that touch basic principles underlying legal systems of member states.29 The debate was conducted both from the point of view of national legal systems, as well as, from the other direction of the viewpoint of the judicial policy of the international tribunal such as the ECtHR. Lord Hoffman of the
Supranational Law? 29 Yearbook of European Law (2010) at 65, at p. 81. The Czech Constitutional Court declared constitutional the Czech legislation to implement the eaw. Policinno, id, at p. 82. For other cases see the decisions of the Hungarian Constitutional Court invalidat a certain statute in preparation for the accession to the E.U. Policinno, id. at 70; and see Slovak Constitutional Court, Policinno, id. at 71. 28 See the ECtHR case of A & Others v UK, and see the UK Supreme Court case Secretary of State for the Home Department v. AF & Others (2009). See particularly the opinion of Lord Hoffman: [T]he judgment of the European Court of Human Rights (“ECtHR”) in A v. United Kingdom (Application No 3455/05), BAILII: [2009] ECtHR 301, requires these appeals to be allowed. I do so with very considerable regret, because I think that the decision of the ECtHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that Section 2(1)(a) of the Human Rights Act 1998 requires us only to “take into account” decisions of the ECtHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so. 29 For a detailed analysis see Y. Shany, The Competing Jurisdictions of International Courts and Tribunals, Oxford, 2003; Y. Shany, Regulating Jurisdictional Relations between National and International Courts, Oxford, 2007; M.L. Volcansek, J.F. Stack (eds), Courts Crossing Borders: Blurring the Lines of Sovereignty, Durham, N.C., 2005: J.H.H. Weiler, A.M. Slaughter, A. Stone Sweet (eds), The European Court and National Courts – Doctrine and Jurisprudence: Legal Change in Its Social Context, Oxford, 2004: Oreste Pollicino, The New Relationship between National and the European Courts after the Enlargement of Europe: Towards a Unitary Theory of Jurisprudential Supranational Law? 29 Yearbook of European Law (2010) at 65–111 W. Sadurski, Accession’s Democracy Dividend: The Impact of the EU Enlargement Upon Democracy in the New Member States of Central and Eastern Europe, in European Law Journal, 2004, p. 371: J.H.H. Weiler, The Community System: The Dual Character of Supranationalism, Yearbook of European Law, 1992, p. 267: H. Rasmussen, Present and Future Judicial Problems After Enlargements and the post-2004 Ideological Revolt, Common Market Law Review, 2007, p. 1661.
United Kingdom Supreme Court has been critical of the ECtHR and expressed the view that its power to interfere in a detailed manner in domestic law should be pointedly limited.30 The debate takes place in the older member states of the European Union and the echr such as the United Kingdom, Belgium, and Germany. But it is also conducted in the newer member states that entered after the Enlargement of the EU following the fall of the Soviet Union. In many of these countries there has been resentment against requirements considered overly demand- ing and unduly interfering in national sovereignty.31 The issue has been a prob- lematic one and reflects the potential conflict between pan-Europeanism’s need for supremacy of European Law and national sovereignty’s adherence to domestic law. The Amendment to the Mt. Scopus Standards of Judicial Independence pre- fers an approach that embodies dialogue and respect rather than confronta- tion and conflict. It is this doctrine of dialogue and respect that the Amendment adopted in Vienna represents. It provides:
1.3 It is vital that supranational and international Tribunals respect the fundamental principles of the legal systems of the Member States and to that end acknowledge the collegiality of the traditions of the courts of both the municipal and extra municipal courts.
The formulation that was adopted by Article 1.3 of the Mt. Scopus International Standards of Judicial Independence, which is an amendment approved in Vienna in 2012, is based on the idea that the relations between the top national courts and the International and Supranational courts should be based on dia- logue and respect, not on conflict and confrontation.
30 Lord Hoffmann, The Universality of Human Rights, Judicial Studies Board annual lecture, 2009; BBC News, “Judge attacks human rights court,” BBC News Online, (4 April 2009). For similar criticism see President of the Belgium Constitutional Tribunal, Marc Bossuyt, Stijn Smet, President of Belgian Constitutional Court Criticises European Court of Human Rights, 2010. It is relevant to note also the criticism of the ECtHR by judge Anatoly Kovler, of Russia on the ECtHR approach to non-European values in Refah v. Turkey (Applications nos. 41340/98, 41342/98, 41343/98 and 41344/98, and the comments of the President of the Russian Constitutional Court Valery Zorkin, regarding the case of Markin v. Russia Application no. 30078/06. But see the opposite view of Judge Martens supporting a more proactive ECtHR in Fisher v Austria (37950/97) [2001] echr 348 (29 May 2001). See Policinno, supra note 28, at 87. 31 Policinno, supra note 28, at p. 69.
The introduction of Article 1.3 reflects the concept that we live in a world of constitutional pluralism, and there is no one true interpretation of the International Human Rights treaty such as the echr, or the Lisbon Treaty in human rights issues, or in interpretation of treaties or constitutions. Article 1.3 follows the same approach for both supranational courts like the ecj in Luxembourg, whose rulings are directly applicable and enforceable in the domes- tic legal systems of all member states, and the international courts like the ECtHR in Strasburg, whose rulings are not directly applicable and need the acceptance of member states to be implemented in the domestic legal system.32 Article 1.3 is based on the idea that there should be a duty of all courts and tribunals acting in the international level whether they are defined as an ‘inter- national’ tribunal or as a ‘supranational’ tribunal. This approach of constitu- tional pluralism assumes that there could be more than one legitimate interpretation. Therefore a dialogue should be developed based on mutual respect. The legal approach of constitutional pluralism finds its expression in the parallel theories of political science33 which emphasizes the significance of state sovereignty and unique state characteristics that should be given rec- ognition in international relations, legal relations, and political partnerships.
B Administrative Adjudicators
There has been a substantial increase in the adjudication performed by offi- cials within the Executive branch. This is due to the ever-increasing role of the welfare state and the ever-increasing fields of administrative agencies with which it is entrusted. For the citizen, matters adjudicated by an administrative adjudicator are equally important as those adjudicated by the ordinary courts of law. In the United States, administrative adjudicators are called administra- tive law judges and there are 1600 at the federal level.34 In the United Kingdom,
32 See for the example the controversy over the rejection by the UK of the decision of the ECtHR to accord rights to vote to prisoners. http://jurist.org/paperchase/2011/10/uk-top -judge-national-courts-not-bound-by-europe-rights-court.php. 33 M. Kumm, Who is the final arbiter of constitutionality in Europe? Three Conceptions of the Relationship between the German federal Constitutional Court and the European Court of Justice, Common Market Law Review, 1999, p. 351; A. Jakab, Neutralizing the Sovereignty Question, European Constitutional Law Review, 2006, p. 375. 34 Kent Barnett, Resolving the alj (Administrative Law Judges) Quandary, 66 VANDERBILT LAW REVIEW 797 (2013), available at: http://digitalcommons.law.uga.edu/fac_artchop/ 893., Deborah A. Geier, The Tax Court, Article III, And The Proposal Advanced By The Federal Courts Study Committee: A Study In Applied Constitutional Theory, 76 Cornell L. Rev. 985 1990–1991; Kathleen C. Engel, Moving Up The Residential Hierarchy:
A New Remedy For An Old Injury Arising From Housing Discrimination 77 WASHINGTON UNIVERSITY LAW QUARTERLY 1153 (1999). 35 Shimon Shetreet and Sophie Turenne, Judges on Trial: Independence and Accountability of the English Judiciary, Chapter 1(2d Ed., Cambridge UP, 2013). 36 Article 9A.7 of the Mt. Scopus Standards.
C Limits on Judges Consultations 2011
In the second volume of Culture of Judicial Independence, Professor Forsyth analysed the regrettable incident of a judge in South Africa who approached judges in another court in an attempt to influence the case of a high ranking public officer of the state. Following that case, which continues to be dealt with, Professor Forsyth sug- gested that Article 7.12 be added as an amendment to the Mt. Scopus Standards of Judicial Independence. Article 7.12 addresses the issue of consultation and provides that “Except in cases of legitimate consultation, a judge shall not approach other judges not sitting with him on the panel on the cases.” Article 7.12 was approved as an amendment in Vienna in 2011.
37 Tribunals, Courts and Enforcement Act (2007), ch 15 (UK), available online at
D Expressly Provided Procedure for Selection of Presidents of Courts
The Chief Justice, Chief Judges, and Presidents of a Court perform a significant role in managing the court. They also perform important administrative func- tions in assigning cases and by generally acting as a leader representative of the court vis-à-vis other branches of government. It is for these reasons that the Project decided that there should be a special provision in national legislation (and in international treaties) that regulates the selection of the Chief Justice or President of Court. Article 4.10 was approved as an amendment to the Mt. Scopus Standards of Judicial Independence in Vienna in 2011.
E Building and Maintaining the Culture of Judicial Independence Ghent 2012
The modern concept of judicial independence is that it extends beyond the simple principle of judicial independence to a wider concept of cultural devel- opment. The culture of judicial independence must include formal and infor- mal aspects and insure proper standards of conduct for all branches of the government.40 This amendment addresses the broader idea of judicial inde- pendence, as applied to judges and their environment of service, along with the ethical conduct expected of judges. All societies and international bodies must seek to establish a culture of judicial independence, as it is essential for democracy and world peace. Judicial independence is founded upon creating institutional structure, establishing constitutional infrastructures, introducing legislative provisions and constitutional safeguards, creating adjudicative arrangements and jurispru- dence, and maintaining ethical traditions and code of judicial conduct. Institutional structures must regulate the matters relative to the status of judges and jurisdictions, and constitutional infrastructure must embody the provisions of judicial protection. Legislative provisions must offer a detailed regulation of the basic constitutional principles of judicial independence and impartiality, and courts must add complimentary interpretations and jurisprudence on judi- cial conduct. The code of judicial conduct covers both the judge’s unofficial and official duties. Other aspect of the culture of judicial independence is the prin- ciple that the legislature should respect and implement judicial decisions and refrain from passing legislation that reverses such decisions.41
40 Shetreet, supra note 5, at 19 ff. 41 Shetreet, Legislative Reversals of Judicial Decisions: The Case for respectful Dialogue between the Judiciary and the Legislature, in The Rule of law: A Conceptual Perspective, Festschrift for Anton MJ Cooray, chapter 12 (2013).
F Guidelines Regarding Public Inquiries by Judges
The practice of judges chairing commissions of inquiry has been very wide over the years. 42 It is a practice followed at the national level as well as at the international level. Most of the inquiries conducted by judges have public and political ramifications. The importance of insuring the impartiality and inde- pendence of judges while serving as members of a commission of inquiry was recognized by the International Project of Judicial Independence. Based on a study advanced in Ghent by Sir Louis Blom-Cooper and agreed to in Hong Kong, Article 9B was approved as an amendment to the Mt. Scopus International Standards of Judicial Independence. Article 9B addresses the caution that judges must take to ensure impar- tiality during their service as chair or member of a commission of inquiry. Serving members of the judiciary must accept appointments as a Commissioner of Inquiry on behalf of the government only in such capacity as a public servant in public administration, not as a judge, and only after careful consideration of the ramifications of acceptance. He must act impar- tially and insist that all matters of the procedure be at his complete discre- tion. He must consider all responses to warning letters and must act impartially during mediation or arbitration.43
IV Agenda for Future Focus Issues in Coming Conferences
Based on the discussions in Ghent and Hong Kong, the agenda of debates regarding amendments to Mt. Scopus will focus on three main topics: the legal profession and judicial independence, the drafting of a Global Judicial Ethics Code, and the development of guidelines on Online Justice or odr.
A The Legal Profession and Judicial Independence
The lawyer and bar associations perform an important role, both as individuals and as organisations of lawyers. It is therefore important that a special detailed amendment to the Mt. Scopus Standards of Judicial Independence be devoted to this issue after proper deliberations in the next conferences (in Moscow and Osnabrück). A background paper was prepared by Prof. Andrew Lesuer will
42 For analysis of recent examples in the UK see Sir Louis Blom Cooper, Horses for Courses: Judges for public Inquiries, paper delivered at the international Conference in City uni- versity of Hong Kong (2012). 43 See also Article 9B of the Mt. Scopus International Standards.
B Global Judicial Ethics Code
In Ghent and San Diego it was resolved, at the suggestion of Prof. Marcel Storme, and with the support of Prof. Shetreet, to embark upon a project to develop a global judicial ethics code. It will be done in two parts. One part will deal with conduct on the bench while the other will focus on conduct off the bench, i.e. on rules governing conduct outside judges’ offi- cial duties.
C Online Justice or Online Dispute Resolution (odr)
We should analyse the increasing recourse to online justice practices and procedures whereby consumers are compelled to work out disputes and arguments against major companies online or via digital procedures. The digital procedures of handling consumer complaints are conducted by phone centres and call centres which sometimes are not even in the jurisdic- tion where the dispute arose, but rather are conducted by out-of-jurisdiction outsourcing call centres. The solution is to require separate, independent complaints officers44 and to impose a duty on companies to establish separate departments presided over by persons who enjoy independence from the accounting and financial officers. Only they should be in charge of handling the complaints from con- sumers. The complaints officers must enjoy decisional independence similar to that of administrative adjudicators.45 In online dispute handling, there is also an increasing recourse to online justice in divorce, where uncontested divorce is completed entirely by inter- net communication with the relevant court or state agency. When such a procedure is performed online impartiality and fairness are not maintained and the outcome of critical issues can be affected, from distribution of the marital estate to parenting plans. We must consider proper guidelines to apply to online justice.
44 Meaning separate from the ordinary company departments such as accounting and finance departments which now entertain the complaints. 45 See Article 9A of the Mt. Scopus Standards, supra, this Chapter.
V In Pursuit of the Protection of Judicial Independence
The activity of the jiwp Association is largely concerned with research and study. But the Association is also engaged in the pursuit of the protection of judicial independence around the globe. Sometimes the jiwp Association is approached by senior judges asking for materials, books, and sources while cases regarding judges are being considered; the Association provides such sources expeditiously to requesting judges. The jiwp Association also was active in calling attention, at the request of judges from Egypt during President Mursy’s term of office, to help protect the independence of the judiciary and the rule of law when President Mursy attempted to reduce the retirement age of judges (among other measures adversely affecting judicial independence and the rule of law). The bill was introduced with a view to lower the age of judiciary retirement and thereby aid in the replacement of secular judges with regime sympathizers.46 The Association brought attention to cases of adverse legislation touching upon judicial independence and the rule of law in other jurisdictions. The Association brought the attention to Argentina’s Congress’ legislation limiting injunctions against government policies and creating three new appellate courts, making the legal system less beholden to special interest groups.47
46 Egyptian Judges Back Out of Reform Conference with Morsi, http://www.cbsnews .com/8301-202_162-57584751/egyptian-judges-back-out-of-reform-conference-with-morsi/. 47 Argentina Leader Wins Say Over Courts, http://online.wsj.com/article/SB10001424127887 324743704578444831718223010.html.
Part nine
Text of the International Standards of Judicial Independence
∵
Appendix I Mount Scopus International Standards of Judicial Independence
Approved March 19, 2008 Consolidated 2013
Preamble
These revised standards are approved in recognition of the need for the revision of the guidelines of general application to contribute to the independence and impartiality of the judiciary, with a view to ensuring the legitimacy and effectiveness of the judicial process. In formulating these standards due regard has been given to the New Delhi Minimum Standards on Judicial Independence 1982 and the Montréal Universal Declaration on the Independence of Justice 1983 drafted with the assistance of members of the International Project of Judicial independence of the International Association of Judicial Independence and World Peace and to the un Basic Principles of Judicial Independence 1985 and the long series of sets of other international rules and standards relating to judicial independence and the right to a fair trial; and The Burgh House Principles of Judicial Independence in International Law (for the international judiciary). Inspiration has also been drawn from the Tokyo Law Asia Principles; Council of Europe Statements on judicial independence, particularly the Recommendation of the Committee of Ministers to Member States on the indepen- dence, efficiency and role of judges by the Council of Europe 1998, The Bangalore Principles of Judicial Conduct November 2002, and the American Bar Association’s revision of its ethical standards for judges. The Standards were drafted bearing in mind the special challenges facing the judiciary in view of the challenges and problems in both the national and international spheres. An updated comprehensive revision of minimum standards for judicial independence is called for in order to give appropriate response to the developments and challenges regarding the position of courts and judges in contemporary society. This revision is important to enable the judiciary to play a role in the adequate protection of human rights and in the operation of an effi- cient and fair market economy with a human face in the era of globalisation. The stan- dards give due consideration particularly to the fact that that each jurisdiction and legal tradition has own characteristics that must be recognised. It is also recognized
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_034
A National Judges
1 The Significance of the Independence of the Judiciary
1.1. An independent and impartial1 judiciary is an institution of the highest value in every society2 and an essential pillar of liberty3 and the rule of law. 1.2. The objectives and functions of the judiciary shall include: 1.2.1.1. To resolve disputes and to administer the law impartially between persons and between persons and public authorities; 1.2.1.2. To promote, within the proper limits of the judicial function, the obser- vance and the attainment of human rights; and 1.2.1.3. To ensure that all people are able to live securely under the rule of law.4 1.3. It is vital that supranational and international Tribunals respect the fundamen- tal principles of the legal systems of the Member States and to that end acknowl- edge the collegiality of the traditions of the courts of both the municipal and extra municipal courts.5
1 Stating this in the body of the standards themselves in addition to the preamble helps stress the section’s importance and ensures that it is more easily referred to. → This is preferred to the first version as it describes exactly what elements are required in the Judiciary. 2 → Tokyo Law Asia Principles. Stating this in the body of the standards themselves rather than in a preamble helps stress the section’s importance and ensures that it is more easily referred to. 3 Preamble, Montréal Declaration. 4 Montréal Declaration. → Recall competing values of judicial independence and judicial accountability: “As phrased by a Canadian judge, Mr. Justice Riddell, commenting on an arrangement of divisions of labour among the judges, ‘Judges are the servants, not the masters of the people.’ Servants are accountable, so are judges.” From Shetreet, Judicial Independence: The Contemporary Debate, at 593, referring to Davis Acetylene Gas Co. v. Morrison, (1915) 34 O.L.R. 155, 23 D.L.R. 871 (C.A.). 5 This Article 1.3 was added as an Amendment in the Conference in Venna 2011.
Building and Maintaining Culture of Judicial Independence6
1.4. Every society and all international bodies, tribunals and courts shall endeavour to build and maintain a culture of judicial independence that is essential for democracy, liberty, rule of law and human rights in domestic system of govern- ment and is a necessary foundation for world peace, orderly world trade, globalised markets and beneficial international investments. 1.4.1. The culture of judicial independence is created on five important and essential aspects: creating institutional structure, establishing constitutional infrastruc- tures, introducing legislative provisions and constitutional safeguards, creating adjudicative arrangements and jurisprudence, and maintaining ethical tradi- tions and code of judicial conduct. 1.4.2. The institutional structures regulate the matters relative to status of the judges and jurisdiction of the courts. 1.4.3. The constitutional infrastructure embodies in the constitution the main provi- sions of the protection of the judiciary as outlined in this standards. 1.4.4. The legislative provisions offer a detailed regulation of the basic constitutional principles of judicial independence and impartiality. 1.4.5. The courts add to the constitutional infrastructure and the legislative provisions complimentary interpretations and jurisprudence on different aspects of the conduct of judges operation and courts. 1.4.6. 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 indepen- dence from dependencies, associations, and even less intensive involvements which might cast doubts on judicial neutrality.
2 The Judiciary7 and the Executive
2.1. The Judiciary as a whole shall be independent. 2.2. Each judge shall enjoy both personal independence and substantive independence:8
6 This Article 1.4 was added as an Amendment in October 2012 in the conference in Ghent. 7 The focus is really on the relationship with the judiciary as a whole, rather than with indi- vidual judges. 8 Although substantive independence warrants wide protection, it is not without boundaries. Judges must exercise their powers subject to the general limit of mutual respect between the various branches of the government and accepted lines of demarcation of their respective responsibilities. The mutual respect is expressed in judge-made rules, including the rule that courts will not engage in the adjudication of unjusticiable issues, such as political questions:
2.2.1. Personal independence means that the terms and conditions of judicial service are adequately secured by law9 so as to ensure that individual judges are not subject to executive control; and 2.2.2. Substantive independence means that in the discharge of his judicial function, a judge is subject to nothing but the law and the commands of his conscience. 2.3. The Judiciary as a whole shall10 enjoy collective independence and autonomy vis-à-vis the Executive. 2.4. Judicial appointments and promotions by the Executive are not inconsistent with judicial independence as long as they are in accordance with Principles 4. 2.5. No executive decree shall reverse specific court decisions, or change the compo- sition of the court in order to affect its decision-making.11 2.6. The Executive may only participate in the discipline of judges by referring complaints against judges, or by the initiation of disciplinary proceedings, but not by the adjudication of such matters. 2.7. The power to discipline or remove a judge must be vested in an institution which is independent of the Executive. 2.8. The power of removal of a judge shall preferably be vested in a judicial tribunal. 2.9. The Executive shall not have control over judicial functions. 2.10. Rules of procedure and practice shall be made by legislation or by the Judiciary in cooperation with the legal profession, subject to parliamentary approval. 2.11. The state shall have a duty to provide for the execution of judgments of the Court. The Judiciary shall exercise supervision over the execution process. 2.12. Judicial matters are exclusively within the responsibility of the Judiciary, both in central judicial administration and in court level judicial administration. 2.13. The central responsibility for judicial administration shall preferably be vested in the Judiciary or jointly in the Judiciary and the Executive. 2.14. The principle of democratic accountability should be respected and therefore it is legitimate for the legislature to play a role in judicial appointments and central administration of justice provided that due consideration is given to the princi- ple of judicial independence.
Shetreet, Judicial Independence: New Conceptual Dimensions and Contemporary Challenges, in Shetreet and Descenes Judicial Independence: The Contemporary Debate at 635. (1985). 9 To clarify that these important conditions must be legally entrenched. 10 Adds mandatory language. 11 Montréal Declaration Section 2.08.
2.15. The process and standards of judicial selection shall give due consideration to the principle of fair reflection by the judiciary of the society in all its aspects.12 2.15.1. Taking into consideration the principle of fair reflection by the judiciary of the society in all its aspects, in the selection of judges, there shall be no discrimination on the grounds of race, colour, gender, language, religion, national or social origin, property, birth or status, subject however to citizenship requirements.13 2.16. Candidates for judicial office shall be individuals of integrity14 and ability, well- trained in the law. They shall have equality of access to judicial office.15 2.17. It is the duty of the state to provide adequate financial resources to allow for the due administration of justice. 2.18. Division of work among judges should ordinarily be done under a predeter- mined plan, which can be changed in certain clearly defined circumstances. 2.18.1. In countries where the power of division of judicial work is vested in the chief justice, it is not considered inconsistent with judicial indepen- dence to accord to the chief justice the power to change the predeter- mined plan for sound reasons, preferably in consultation with the senior judges when practicable. 2.18.2. Subject to 2.18.1, the exclusive responsibility for case assignment should be vested in a responsible judge, preferably the President of the Court. 2.19. The power to transfer a judge from one court to another shall be vested in a judicial authority according to grounds provided by law and preferably shall be subject to the judge’s consent, such consent not to be unreasonably withheld. 2.20. Judicial salaries and pensions shall be adequate at all times, fixed by law, and should be periodically reviewed independently of Executive control. 2.21. The position of the judges, their independence, their security of tenure, and their adequate remuneration shall be entrenched constitutionally16 or secured by law.
12 Montréal Declaration Section 2.13. See also Shetreet, Judicial Independence: The Contemporary Debate, at 401. 13 Montréal Declaration. → “Political opinion” is also taken from ph Lane, Fragile Bastion: Constitutional Aspects of Judicial Independence (judicial independence is composed of at least five aspects: (1) non-political appointments to a court; (2) guaranteed tenure and salary; (3) executive and legislative interference with court proceedings or office holders; (4) budgetary autonomy; (5) administrative autonomy). 14 Montréal Declaration Section 2.11. 15 Exact wording of the Montréal Declaration, Section 2.11. 16 un Basic Principles.
2.22. Judicial salaries, pensions, and benefits17 cannot be decreased during judges’ service except as a coherent part of an overall public economic measure. 2.23. The Ministers of the government shall not exercise any form of pressure on judges, whether overt or covert, and shall not make statements which adversely affect the independence of individual judges, or of the Judiciary as a whole. 2.24. The power of pardon shall be exercised cautiously so as to avoid its use as an interference with judicial decision. 2.25. The Executive shall refrain from any act or omission which pre-empts the judicial resolution of a dispute, or frustrates the proper execution of a court judgment. 2.26. The Executive shall not have the power to close down, or suspend, or delay, the operation of the court system at any level.
3 The Judiciary18 and the Legislature
3.1. The Legislature shall not pass legislation which reverses specific court decisions. 3.2. Legislation introducing changes in the terms and conditions of judicial service shall not be applied to judges holding office at the time of passing the legislation unless the changes improve the terms of service and are generally applied.19
→ Change suggested in order to provide additional flexibility, and also to stress how this is an important enough issue to be constitutionally entrenched. 17 In the interests of completeness. 18 The focus is really on the relationship with the judiciary as a whole, rather than with individual judges. 19 In order to prevent “rewarding” specific judges. → The US Constitution’s Compensation Clause guarantees federal judges a “Compensation, which shall not be diminished during their Continuance in Office.” U.S. Const., Art. III, §1. → See US v. Hatter (99–1978) 532 U.S. 557 (2001) 203 F.3d 795: Congress is prohibited from singling out judges for specially unfavourable taxation treatment, although it is permitted to impose a “non-discriminatory tax laid generally” upon judges and other citizens. → See United States v. Will, 449 U.S. 200, 220–21 (1980): though Congress may not rescind a salary increase for judges once it has gone into effect - that would be a diminishment of compensation - Congress is under no constitutional obligation to grant salary increases. → See Evans v. Gore, 253 U.S. 245, 253 (1920): The imposition of a new federal tax that has the effect of reducing the judicial compensation of judges already in office is unconstitutional. → But see O’Malley v. Woodrough, 307 U.S. 277 (1939): an income tax levied against the judi- cial salary of judges who took office after the levy is in effect is constitutional, when the taxing measure is of general, non-discriminatory application to all earners of income.
3.3. In case of legislation reorganising or abolishing courts, judges serving in these courts shall not be affected, except for their transfer to another court of the same or materially comparable20 status. 3.4. Everyone shall have the right to be tried expeditiously by the established ordi- nary courts or judicial tribunals under law, subject to review by the courts.21 3.5. Part-time judges should be appointed only with proper safeguards secured by law. 3.6. The Legislature may be vested with the powers of removal of judges, upon a rec- ommendation of a judicial commission or pursuant to constitutional provisions or validly enacted legislation.22
4 Terms and Nature of Judicial Appointments
4.1. The method of judicial selection shall safeguard against judicial appointments for improper motives23 and shall not threaten judicial independence. 4.2. (a) The principle of democratic accountability should be respected and there- fore it is legitimate for the Executive and the Legislature to play a role in judicial appointments provided that due consideration is given to the principle of Judicial Independence. (b) The recent trend of establishing judicial selection boards or commissions in which members or representatives of the Legislature ,the Executive ,the Judiciary and the legal profession take part ,should be viewed favourably, provided that a proper balance is maintained in the composition of such boards or commissions of each of the branches of government. 4.3. Judicial appointments should generally be for life, subject to removal for cause and compulsory retirement at an age fixed by law at the date of appointment. 4.3.1. Retirement age shall not be reduced for existing judges.24
20 To provide for situations such as those that occurred in Ontario when the entire court structure was reorganized. 21 For a discussion of this issue, see Shetreet, Judicial Independence: The Contemporary Debate, at 616. 22 In order to try to prevent situations such as those that occurred in Ecuador in April 2007 when Congress removed all nine judges of the Constitutional Court in a retaliatory measure, contrary to the Ecuadorian constitution which provides that judges of the Constitutional Court can only be removed by impeachment: Human Rights Watch, Ecuador: Removal of Judges Undermines Judicial Independence (May 11, 2007). 23 Montréal Declaration. 24 See Shetreet, Judicial Independence: New Conceptual Dimensions and Contemporary Challenges, in Shetreet and Descenes Judicial Independence: The Contemporary Debate, at 607 ( 1985 ) reporting that in Bangladesh, in 1977 an ordinance was passed bringing down the retirement age from 65 to 62 years with immediate effect. This resulted in the
4.4. Promotion of judges shall25 be based on objective factors, in particular merit,26 integrity and experience.27 4.5. Judicial appointments and promotions shall be based on transparency of the procedures and standards and shall be based on professional qualifications, integrity, ability and efficiency. 4.6. Judges should not be appointed for probationary periods except in legal systems in which appointments of judges do not depend on having practical experience in the profession as a condition of appointment, and provided that permanent appointment will be granted on merit.28 4.7. The institution of temporary judges should be avoided as far as possible except where there exists a long historic democratic tradition. 4.8. Part-time judges should be appointed only with proper safeguards secured by law. 4.9. The number of the members of the highest court should be fixed, with the exception of courts modeled after the courts of cassion, and in the case of all courts, should not be altered for improper motives. 4.10. Legislatures should formulate special procedures for the appointment of Chief Justices and Presidents of courts.
5 Judicial Removal and Discipline
5.1. The proceedings for discipline and removal of judges29 shall be processed expe- ditiously and fairly30 and shall ensure fairness to the judge including adequate opportunity for hearing. 5.2. With the exception of proceedings before the Legislature,31 the procedure for
retirement of two distinguished judges. This was in fact a legislative removal of these two judges though it was in theory a general statute. 25 In order to make this mandatory. 26 “Merit” is broader than “ability.” 27 un Basic Principles. → Montréal Declaration provides: “Promotion of a judge shall be based on an objective assessment of the candidate’s integrity and independence of judgment, professional competence, experience, humanity and commitment to uphold the rule of law.” 28 Scottish temporary judges cases Starrs and Chalmers v. D.F. Linlithgow 2000 S. L. 2; Clancy v. Caird 2000 Scottish Law Times,The Bailiff Judicial Appointments ( Scotland ) Act 2000. 29 The un Basic Principles adds “in his/her judicial and professional capacity.” This wording was not added here to prevent personal suits being lodged against judges as a back-door method of interfering with their independence. 30 un Basic Principles. 31 Montréal Declaration Section 2.36.
discipline should be held in camera. The judge may however request that the hearing be held in public32 and such request should be respected, subject to expeditious, final and reasoned disposition of this request by the disciplinary tribunal. Judgments in disciplinary proceedings, whether held in camera or in public, may be published.33 5.3. All of the grounds for the discipline, suspension and removal of judges shall be entrenched constitutionally or fixed by law and shall be clearly defined. 5.4. All disciplinary, suspension and removal34 actions shall be based upon estab- lished standards of judicial conduct.35 5.5. A judge shall not be subject to removal, unless by reason of a criminal act or through gross or repeated neglect or serious infringements of disciplinary rules or physical or mental incapacity he has shown himself manifestly unfit to hold the position of judge. The grounds for removal shall be limited to reasons of medical incapacity or behaviour that renders the judge unfit to discharge their duties.36 5.6. In systems where the power to discipline and remove judges is vested in an insti- tution other than the Legislature, the tribunal for discipline and removal of judges shall be permanent, and be composed predominantly of members of the Judiciary. 5.7. The head of the court may legitimately have supervisory powers to control judges on administrative matters.
6 The Media and the Judiciary
6.1. It should be recognized that judicial independence does not render judges free from public accountability, however, the media and other institutions should show respect for judicial independence and exercise restrain in criticism of judi- cial decisions.37 6.2. While recognising the general right of freedom of expression of all citizens, a judge should not interview directly with the general media. If a judge needs to
32 Montréal Declaration Section 2.36. 33 Montréal Declaration Section 2.36. 34 Inclusive. 35 Montréal Declaration Section 2.34. Broad. 36 un Basic Principles. 37 See discussion by Julie Debeljak, Judicial Conference of Australia, Uluru, April 2001: Judicial Independence: A Collection of Material for the Judicial Conference of Australia regarding the consequences of inappropriate public criticism (it leaves judges having to choose between being silent leading to a potential decrease in public confidence in the judiciary, or else inappropriately being drawn into public criticism).
respond to the media in regard to a media report or inquiry, it shall be done via a spokesperson assigned by the court or a judge specifically assigned by the court for this purpose. In exceptional circumstances a judge may respond directly to the media if that judge’s direct response will prevent an irreparable damage. 6.3. The media should show responsibility and restraint in publications on pending cases where such publication may influence the outcome of the case. 6.4. A judge shall not knowingly, while a proceeding is, or could come before the judge, make any comment that might reasonably be expected to affect the out- come of such proceeding or impair the manifest fairness of the process. Nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue.38
7 Standards of Conduct39
7.1. Judges may not serve in Executive or Legislative functions, including as: 7.1.1. Ministers of the government; or as 7.1.2. Members of the Legislature or of municipal councils. 7.2. Judges shall not hold positions in political parties. 7.3. A judge, other than a temporary or part-time judge, may not practice law. 7.4. A judge should refrain from business activities and should avoid from engaging in other remunerative activity,40 that can affect the exercise of judicial functions or the image of the judge, except in respect of that judge’s personal investments, ownership of property, the business activities or ownership of property of family members,41 or that judge’s teaching at a university or a college. 7.5. A judge should always behave in such a manner as to preserve the dignity of the office and the impartiality, integrity and independence of the Judiciary. 7.6. Judges may be organized in associations designed for judges, for furthering their rights and interests as judges. 7.7. Judges may take appropriate action to protect their judicial independence.42 7.8. A judge shall disqualify himself or herself from participating in any proceedings in
38 Bangalore Principles. 39 Human Rights Watch, Rigging the Rule of Law: Judicial Independence Under Siege in Venezuela, Volume 16, No. 3(B) (June 2004) reporting some of allegations of judicial bias in Venezuela. For instance, Attorney General Isaías Rodríguez in May 2004 allegedly described how the country’s top administrative court in the past established set fees for resolving different kinds of cases. 40 aba Model Code of Judicial Conduct (February 2007), Canon 4, Article D(2). 41 aba Model Code of Judicial Conduct (February 2007), Canon 4, Article D(2) discusses family. 42 This is how the section appears in the Montréal Declaration, Section 2.09.
which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. 7.9. Such proceedings include, but are not limited to, instances where (a) the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; (b) the judge previously served as a lawyer or was a material witness in the matter in controversy; or (c) the judge, or a member of the judge’s family, has an economic interest in the outcome of the matter in controversy:
Provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice.43
7.10. A case should not be withdrawn from a particular judge without valid reasons, such as cases of serious illness or conflict of interest. Any such reasons and the procedures for such withdrawal should be provided for by law and may not be influenced by any interest of the government or administration. A decision to withdraw a case from a judge should be taken by an authority which enjoys the same judicial independence as judges.44 7.11. Judges shall discourage ex parte communications from parties and except as pro- vided by the rules of the court such communications shall be disclosed to the court and to the other party. 7.12. Except in cases of legitimate consultations a Judge shall not approach other judges not sitting with him on the same panel on pending cases.45
8 Securing Impartiality and Independence46
8.1. A judge47 shall enjoy immunity from legal actions in the exercise of official functions.48
43 Bangalore Principles. 44 Recommendation No. R(94)12). of the committee of Ministers of the Council of Europe to Memner States. 45 This Article 7.12 was added as an Amendment in Vienna in 2011. 46 See Cyrus Das and K. Chandra, Editors, Judges and Judicial Accountability, Universal Law Publishing Company Ltd., Delhi. 47 This does not exclude the possibility that the state may be liable for the gross negligence of a judicial officer. 48 Consider a 1988 Italian law which was designed to, within certain limit, render judges accountable for damages caused by serious fault in the exercise of their functions: see
8.2. A judge shall not sit in a case where there is a reasonable suspicion of bias or potential bias.49 8.3. A judge shall avoid any course of conduct which might give rise to an appear- ance of partiality. 8.4. The state shall ensure that in the decision-making process, judges should be independent and be able to act without any restriction, improper influence, inducements, pressures, threats50 or interferences, direct or indirect, from any quarter or for any reason. The law should provide for sanctions against persons seeking to influence judges in any such manner. Judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law. Judges should not be obliged to report on the merits of their cases to anyone outside the judiciary.51
9 The Internal Independence of the Judiciary
9.1. In the decision-making process, a judge must be independent vis-à-vis his judi- cial colleagues and superiors. 9.2. Any hierarchical organization of the judiciary and any difference in grade or rank shall in no way interfere with the right of judges to pronounce their judg- ments freely.52
9A Administrative Adjudicators53
Administrative Adjudicatory Officers
9A.1. Definitions
In this section the term administrative adjudicators means — Administrative officers exercising judicial functions in agencies but are not part of the regular court system.
Giovanni E. Longo, “The Human Right to an Independent Judiciary: International Norms and Denied application before a Domestic Jurisdiction,” St. John’s Law Review (Winter 1996). 49 “It is most important that the judiciary be independent and be so perceived by the public. The judges must not have cause to fear that they will be prejudiced by their decisions or that the public would reasonably apprehend this to be the case”: Howland, CJ, R. v. Valente 2C.C.C. (3d) 417, at 423 (1983). 50 Including physical threats to injure or to kill. 51 Recommendation No. R(94)12 of the committee of Ministers of the Council of Europe to Memner States. 52 Montréal Declaration Section 2.03. 53 This Article 9A was added as an Amendment in Vienna in 2011.
9A.2. Except as provided below, the standards applicable to national judges shall apply to administrative adjudicators. 9A.3. Administrative officers exercising judicial functions – hereinafter administrative adjudicators – may be appointed by the executive on merit according to the gen- eral principles in Section 4.4 and Section 4.5. 9A.4. Administrative adjudicators may be appointed for probationary periods pro- vided the decision whether to make a permanent appointment is based on merit. 9A.5. Compensation of administrative adjudicators shall not be reduced except as part of a general economic measures applied to the country as a whole. 9A.6. Administrative adjudicators may be removed only for good cause, to be specified by law, and only after a fair hearing. 9A.7. Administrative adjudicators shall not exercise or be assigned non-adjudicatory functions in the same or a related matter in which they perform adjudicatory functions. 9A.8. Decisions of administrative adjudicators , including factual findings and legal conclusions, shall be subject to review by the agency that administers the pro- gram under which the matter arises and also may be subject to judicial review according to law. 9A.9. The executive shall not interfere in the substantive decision-making of adminis- trative adjudicators. 9A.10. Administrative adjudicators shall be subject to evaluation according to objective criteria that are related to promoting uniform decisional standards.
Public Inquiries by Judges54
9B If a serving member of the judiciary accepts appointment as a Commissioner of Inquiry on behalf of Government, he or she does so not in the capacity of a judge but as a public servant in public administration. 9B.1. While a serving judge conducts a public inquiry, in accordance with terms of reference stated by the Government, he must act impartially and independently of any party interested in the substance of the public inquiry. 9B.2. A serving judge who chairs a public inquiry is entitled to insist that all matters of the procedure in the conduct of the inquiry shall be at his complete discretion; in particular he or she may, according to the applicable law or standards, issue a warning letter to any interested party of any complaint that may appear in the Inquiry’s report to Government.
54 This Article 9B was added as an Amendment in Ghent in 2012.
9B.3. If an interested party responds to any such warning letter from the public inquiry, the judge will consider such response, and if necessary, indicate that it has been considered in the preparation of the final report to Government. 9B.4. Upon receiving a request to chair a commission of inquiry, a judge shall carefully consider all the ramifications of such appointment before giving consent to said appointment. 9B.5. Judges who exercise other functions such as in alternative dispute resolution (adr), in mediation or arbitration, shall act impartially and independently of any party to the relevant procedure.
B International Judges
The following text on minimum standards for the independence of the international judiciary is based, with minor amendments, on the Burgh House Principles on the Independence of the International Judiciary which were formulated by the Study Group of the International Law Association on the Practice and Procedure of International Courts and Tribunals.
10 Independence
10.1. The international courts and the judges shall exercise their functions free from direct or indirect interference or influence by any person or entity. 10.2. This freedom of the judges and courts shall apply both to the judicial process in pending cases, including the assignment of cases to particular judges, and to the operation of the court and its registry. 10.3. The court shall be free to determine the conditions for its international adminis- tration, including staff recruitment policy, information systems and allocation of budgetary expenditure. 10.4. Deliberations of the court shall remain confidential. 10.5. All Judges of international courts and tribunals shall adhere to the principle that a judges who are nationals of a member state of the organisation establishing the court or tribunal when exercising judicial discretion and function shall engage in fair and independent adjudication of the case and by no means in representation of the member state.
11 Nomination, Election and Appointment
11.1. In accordance with the governing instruments, judges shall be chosen from among persons of high moral character, integrity and conscientiousness who possess the appropriate professional qualifications, competence and experience required for the court concerned.
11.2. While procedures for nomination, election and appointment should consider fair representation of different geographic regions and the principal legal systems, as appropriate, as well as of female and male judges, appropriate per- sonal and professional qualifications must be the overriding consideration in the nomination, election and appointment of judges. 11.3. Procedures for the nomination, election, and appointment of judges should be transparent and provide appropriate safeguards against nominations, elections and appointments motivated by improper considerations. 11.4. Information regarding the nomination, election and appointment process and information about candidates for judicial office should be made public, in due time and in an effective manner, by the international organisation or other body responsible for the nomination, election and appointment process. 11.5. For the promotion of the independence of judges it is preferable that appoint- ment of judges to the international courts and tribunals shall be for one long term and shall not be open for re-election.
12 Security of Tenure
12.1. Judges shall have security of tenure in relations to their term of office. They may only be removed from office upon specified grounds and in accordance with appropriate procedures specified in advance. 12.2. The governing instruments of each court should provide for judges to be appointed for a minimum term to enable them to exercise their judicial func- tions in an independent manner.
13 Service and Remuneration
13.1. Judges’ essential conditions of service shall be enumerated in legally binding instruments. 13.2. No adverse changes shall be introduced with regard to judges’ remuneration and other essential conditions of service during their terms of office. 13.3. Judges should receive adequate remuneration which should be periodically adjusted in line with any increases in the cost of living at the seat of the court. 13.4. Conditions of service should include adequate pension arrangements.
14 Privileges and Immunities
14.1. Judges shall enjoy immunities equivalent to full diplomatic immunities, and in particular shall enjoy immunities from all claims arising from the exercise of their judicial functions.
14.2. The court alone shall be competent to waive the immunity of judges; it should waive immunity in any case where, in its opinion, the immunity would impede the course of justice and can be waived without prejudice to the exercise of the judicial function. 14.3. Documents and papers of the courts, judges and registry, in so far as they relate to the business of the court, shall be inviolable. 14.4. The state in which an international court has its seat shall take the necessary measures to protect the security of the judges and their families, and to pro- tect them from adverse measures related to the exercise of their judicial function.
15 Budget
15.1. States, parties and international organisations shall provide adequate resources, including facilities and levels of staffing, to enable courts and the judges to per- form their functions effectively.
16 Freedom of Expression and Association
16.1. Judges shall enjoy freedom of expression and association. These freedoms must be exercised in a manner that is compatible with the judicial function and that may not affect or reasonably appear to affect judicial independence or impartiality. 16.2. Judges shall maintain the confidentiality of deliberations, and shall not com- ment extra-judicially upon pending cases. 16.3. Judges shall exercise appropriate restrain in commenting extra-judicially upon judgements and procedures of their own and other courts and may upon any legislation, drafts, proposals or subject-matter likely to come before their court.
17 Extra-Judicial Activity
17.1. Judges shall not engage in any extra-judicial activity that is incompatible with their judicial function or the efficient and timely functioning of the court of which they are members, or that may affect or may reasonably appear to affect their independence or impartiality. 17.2. Judges shall not exercise any political function. 17.3. Each court should establish an appropriate mechanism to give guidance to judges in relation to extra-judicial activities, and to ensure that appropriate means exist for parties to proceedings to raise any concerns.
18 Past Links to a Case
18.1. Judges shall not serve in a case in which they have previously served as agent, counsel, advisor, advocate, expert or in any other capacity for one of the parties, or as a member of a national or international court or other dispute set- tlement body which has considered the subject matter of the dispute or in a case where they had previously commented or expressed an opinion concerning the subject matter in a manner that is likely to affect or may reasonably appear to affect their independence or impartiality. 18.2. Judges shall not serve in a case with the subject matter of which they had other forms of association that may affect or may reasonably appear to affect their independence or impartiality.
19 Past Links to a Party
19.1. Judges shall not sit in any case involving a party for whom they have served as agent, counsel, advisor, advocate or expert within the previous three years or such other period as the court may establish within its rules; or with whom they have had any other significant professional or personal link within the previous three years or such other period as the court may establish within its rules.
20 Interest in the Outcome of a Case
20.1. Judges shall not sit in any case in the outcome of which they hold any material personal, professional or financial interest. 20.2. Judges shall not sit in any case in the outcome of which other persons or entities closely related to them hold a material, personal, professional or financial interest. 20.3. Judges must not accept any undisclosed payment from a party to the proceed- ings or any payment whatsoever on account of a judge’s participation in the proceedings.
21 Contact with a Party
21.1. Judges shall exercise appropriate caution in their personal contacts with parties, agents, counsel, advocates, advisors, and other persons and entities associated with a pending case. Any such contacts should be conducted in a manner that is compatible with the judicial function and that may not affect or reasonably appear to affect the judge’s independence and impartiality.
21.2. Judges shall discourage ex parte communications from parties and except as pro- vided by the rules of the court such communications shall be disclosed to the court and to the other party.
22 Post-Service Limitations
22.1. Judges shall not serve in a case with the subject-matter of which they have had any other form of association that may affect or may reasonably appear to affect their independence or impartiality. 22.2. Judges shall not seek or accept, while they are in office, any future employment, appointment or benefit, from a party to a case on which they sat or from any entity related to such a party that may affect or may reasonably appear to affect their independence or impartiality. 22.3. Former judges shall not, except as permitted by rules of the court, act in any capac- ity in relations to any case on which they sat during their judicial term of office. 22.4. Former judges shall not act as agent, counsel, advisor or advocate in any proceed- ings before the court on which they previously served for a period of three years after they have left office or such other period as the court may establish and publish. 22.5. Former judges should exercise appropriate caution as regards the acceptance of any employment, appointment or benefit, in particular from a party to a case on which they sat or from any entity related to such a party.
23 Disclosure
23.1. Judges shall disclose to the court and, as appropriate, to the parties of the pro- ceedings any circumstances which come to their notice at any time by virtue of which any of Principles 16 to 22 apply. 23.2. Each court shall establish appropriate procedures to enable judges to disclose to the court and, as appropriate, to the parties to the proceedings matters that may affect or may reasonably appear to affect their independence or impartiality in relations to any particular case.
24 Waiver
24.1. Notwithstanding Principles 16 to 22, judges shall not be prevented from sitting in a case where they have made appropriate disclosure of any facts bringing any of those Principles into operation, where the court expresses no objections and the parties give their express and informed consent to the judge acting.
25 Withdrawal or Disqualification
25.1. Each court shall establish rules of procedure to enable the determination whether judges are prevented from sitting in a particular case as a result of the application of these Principles or for reasons of incapacity. Such procedures shall be available to a judge, the court, or any party to the proceedings.
26 Misconduct
26.1. Each court shall establish rules of procedure to address a specific complaint of misconduct or breach of duty on the party of a judge that may affect indepen- dence or impartiality. 26.2. Such a complaint may, if clearly unfounded, be resolved on a summary basis. In any case where the court determines that more detailed investigation is required, the rules shall establish adequate safeguards to protect the judges’ rights and interests and to ensure appropriate confidentiality of the proceedings. 26.3. The governing instruments of the court shall provide for appropriate measures, including the removal from office of a judge. 26.4. The outcome of any complaint shall be communicated to the complainant.
27 Ad Hoc Judges
27.1. An ad hoc judge in an international court or tribunal must act conscientiously and independently in the adjudication of the case to which that judge was assigned to sit. 27.2. The restrictions and provisions applicable to full-time international judges regarding past links, extra-judicial activities, post-service limitations, and secu- rity of tenure shall not apply to ad hoc judges.
International Association of Judicial Independence and World Peace International Project on Judicial Independence Mt. Scopus Standards Conferences Series Jointly sponsored by the Hebrew University of Jerusalem Faculty of Law and the University of Cambridge Centre of Public Law Officers and Conferences of the International Project on Judicial Independence General Coordinator, International Project on Judicial Independence Professor Shimon Shetreet, Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem, former Director, Sacher Institute of Comparative Law
I Co-Chairs of the International Conference on Judicial Independence on International Law, Jerusalem, 26–27 June 2007
Professor Shimon Shetreet, Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem, former Director, Sacher Institute of Comparative Law Professor James R. Crawford, Faculty of Law, University of Cambridge
II Officers of the International Conference on Judicial Independence for the Drafting of the International Standards of Judicial Independence, Zurich Area Conference, 30 November–1 December 2007
Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Christopher F Forsyth, Co-Chair of the Conference, Director Centre of Public Law, Faculty of Law, University of Cambridge Professor Marcel Storme, Emeritus Professor, Ghent University, Past President of the World Association of Procedural Law, Leader of the Discussions H.E. Markus Buechel, Chair of the Local Organising Committee
III Co-Chairs of the International Conference on Judicial Independence and the Constitutional Position of the Judiciary, Jerusalem, 18–20 March 2008
Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Christopher F Forsyth, Co-Chair of the Conference, Director Centre of Public Law, Faculty of Law, University of Cambridge
IV Co-Chairs of the International Conference on Judicial Independence: The Challenge of Implementing the International Standards, Krakow, November 2008
Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Dr. Fryderyk Zoll, Faculty of Law, Jagelonian University, Krakow
V Co-Chairs of the International Conference on the The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, University of Cambridge. 14–16 August 2009
Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Christopher F Forsyth, Co-Chair of the Conference, Director Centre of Public Law, Faculty of Law, University of Cambridge
VI Co-Chairs of the International Conference on Judicial Independence: Challenges for Judicial Independence, Implementing Judicial Independence in Multi-cultural Societies and in Times of Crisis, University of Utah, 1–3 October 2010
Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Dean Hiram Chodosh, Co-Chair of the Conference, Dean, School of Law, University of Utah Professor Wayne McCormack, Co-Chair of the Conference, E.W. Thode Professor of Law of Law, University of Utah
VII Co-Chairs of the International Conference on Judicial Independence, University of Vienna, 20–22 May 2011
Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Walter Rechberger, Co-Chair of the Conference, Faculty of Law, University of Vienna
VIII Co-Chairs of the International Conference on Judicial Independence and Globalisation, City University of Hong Kong, 21–23 March 2012
Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Anton Cooray, Associate Dean of Law, City University of Hong Kong
IX Co-Chairs of the International Conference on Judicial Independence: Impartiality and Fairness of the Judicial Process, University of Ghent, 18–20 October 2012
Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Marcel Storme, University of Ghent, Belgium, Honorary President, International Association of Procedural Law
X Co-Chairs of the International Conference on Judicial Independence: Rule of Law and World Peace, University of San Diego, August 2013
Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Maimon Schwarzschild, Co-Chair of the Conference, Professor of Law, University of San Diego Members of the Consultation Group of the International Project of Judicial Independence: Professor Neil H. Andrews, University of Cambridge, Clare College, Professor Frank Bates, School of Law, University of Newcastle Australia Professor John Bell, Faculty of Law, University of Cambridge Professor Vernon Bogdanor, Oxford University Dr. Tomer Braude, Faculty of Law, Hebrew University Professor Dr. Winfried Brugger, Universitat Heidelberg H.E. Advocate Markus Buechel, Senior Lawyer, Liechtenstein Professor Federico Carpi, President of the World -Association of Procedural Law Professor Oscar G. Chase, New York University School of Law Professor Albert Chen, Professor of Law, Hong Kong University Professor Hiram Chodosh, Dean, S.J. College of Law, the University of Utah Professor Sir Louis Blom Cooper, UK Professor Anton Cooray, The School of Law, City University of Hong Kong Professor James R Crawford, Faculty of Law, University of Cambridge Dr. Cyrus Das, Former President of the Bar of Malaysia Professor Masahisa Deguchi, Faculty of Law, Ritsumeikan University Professor Chandra R. de Silva, Vice Provost, Old Dominion University Prof Yoav Dotan, Dean Faculty of Law, Hebrew University of Jerusalem
Professor Bernhard Ehrenzeller, Universität St. Gallen Professor Jonathan Entin, Case Western Reserve University School of Law Professor Hans Walter Fasching, Austria Professor David Feldman, Chairman of the Faculty Board of Law, Faculty of Law, University of Cambridge Professor Christopher F Forsyth, Director Centre of Public Law, Faculty of Law, University of Cambridge Professor Martin Friedland, Faculty of Law, University of Toronto Professor Bryant G. Garth, American Bar Foundation Professor Peter Gilles, Institut fur Rechtsvergleichung, Johann Wolfgang Goethe Universitat Professor Stephen Goldstein, Emeritus Professor, Hebrew University of Jerusalem Professor Peter Gottwald, Universitat Regensburg, Secretary General World Association of Procedural Law Professor Ada Pellegrini Grinover, Brazil Professor Walter Habscheid, Emeritus Professor, University of Zurich Professor Walther J. Habscheid, Emeritus Professor, University of Geneva and University of Zurich Prof. Yitzhak Hadari, Tel Aviv University, Natanya College Law Professor Dr. Burkhardt Hess, University of Heidelberg Professor Moshe Hirsh, Faculty of Law, Hebrew University of Jerusalem Justice Tassaduq Hussain Jillani, Judge of the Supreme Court of Pakistan Professor John Anthony Jolowicz, Trinity College, University of Cambridge Professor Konstantinos D. Kerameus, University of Athens Professor Nikolas Klamaris, University of Athens Professor Ruth Lapidot, Faculty of Law, Hebrew University of Jerusalem Professor Per Henrick Lindblom, Faculty of Law, Uppsala University Juridicum Professor Asher Maoz, Tel-Aviv University, Faculty of Law Professor Stephen Marks, Francois-Xavier Bagnoud Professor of Health and Human Rights, Department of Population and International Health, Harvard School of Public Health. Professor Sean McConville, Professor of Law and Professorial Research Fellow School of Law, Queen Mary College , University of London Professor Dr. Francisco Ramos Mendez, University of Barcelona Paul Morris, Barrister, York, UK Professor James Nemeth, Eotvos Lorand University, Hungary Professor Dr. Paul Oberhammer, Universität, Zürich Professor Roger Perrot, Université de Paris Professor Hoong Phun (“HP”) Lee, Deputy Dean, Faculty of Law, Monash University Professor Walter H. Rechberger, University of Vienna
Professor Judith Resnik, Yale Law School Professor Michel Rosenfeld, Benjamin N. Cardozo School of Law, Yeshiva University Professor Maimon Schwarzschild, Faculty of Law, University of San Diego Dr. Anat Scolnicov, Deputy Director, Centre of Public Law, University of Cambridge Prof. Yuval Shany, Faculty of Law, Hebrew University of Jerusalem Professor Shimon Shetreet, Director, Sacher Institute of Comparative Law Hebrew University of Jerusalem Professor Gary J Simson, Dean, Case Western Reserve University Professor Zhivko Stalev, Bulgaria Professor Marcel Storme, Ghent University, Past President of the World -Association of Procedural Law Professor Yasuhei Taniguchi, Senshu University, Tokyo Professor Daniel Thurer, Universität Zürich Professor Keith Uff, Executive Secretary General, International Association of Procedural Law, Professor, Faculty of Law, University of Birmingham Professor K.K. Venogopal, Senior Advocate of the Supreme Court, India Professor Garry D. Watson, Osgoode Hall Law School, York University Prof Joseph Weiler, New York University Professor Neil James Williams, University of Melbourne, Professor Pelayia Yessiou-Faltsi, Faculty of Law, Aristotle University of Thessaloniki Professor Andreyj J. Zoll, Former President of Constitutional Court of Poland Professor Dr. Fryderyk Zoll, Faculty of Law, Jagelonian University, Krakow
International Law Association Study Group on the Practice and Procedure of International Courts and Tribunals on the Independence of International Judges
Co-Chairs
Philippe Sands, Professor of Law, University College London; Co-Director, Project on International Courts and Tribunals Campbell McLachlan, Professor, Deputy Dean, School of Law, Victoria University of Wellington
Members
Laurence Boisson de Chazournes, Professor of International Law, University of Geneva Rodman Bundy, Frere Cholmeley Eversheds, Paris James Crawford, Whewell Professor of International Law, Cambridge University
Hans van Houtte, Professor of International Law, Katholieke Universiteit Leuven Mojtaba Kazazi, United Nations Compensation Commission Francisco Orrego Vicuna, Professor of International Law, University of Chile Alain Pellet, Professor of International Law, Université Paris X Nanterre Davis Robinson, LeBoeuf, Lamb, Greene & MacRae, Soli Sorabjee, Attorney General of India, Margrete Stevens, Senior Counsel, International Centre for Settlement of Investment Disputes
The Jerusalem Approved Standards as adopted in the Plenary Session of the 19th iba Biennial Conference held on Friday, 22nd October 1982, in New Delhi, India.
A Judges and the Executive
1. (a) Individual judges should enjoy personal independence and substantive independence. (b) Personal independence means that the terms and conditions of judicial service are adequately secured, so as to ensure that individual judges are not subject to executive control. (c) Sustantive independence means that in the discharge of his judicial func- tion, a judge is subject to nothing but the law and the commands of his conscience. 2. The judiciary as a whole should enjoy autonomy and collective independence vis-a-vis the Executive. 3. (a) Judicial appointments and promotions by the Executive are not inconsis- tent with judicial independence. (b) Except for countries where by long historic and democratic tradition judicial appointments operate satisfactorily, judicial participation in the process of jutheial appointments an& promotions, whether by judicial commission or otherwise, is imperative for the maintenance of judicial independence. (c) The Legislature may be vested with the powers of removal of judges, pref- erably upon a recommendation of a judicial commission. 4. (a) The Executive may participate in the discipline of judges, only in referring com- plaints against judges, or in the initiation of disciplinary proceedings, but not the adjudication of such matters. The power to discipline or remove a judge must be vested in an institution which is independent of the Executive. (b) The power of removal of a judge should preferably be vested in a judicial tribunal.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_035
(c) The Legislature may be vested with the powers of removal of judges, pref- erably upon a recommendation of a judicial commission. 5. The Executive shall not have control over judicial functions. 6. Rules of procedure and practice shall be made by legislation or by the Judiciary in cooperation with the legal profession, subject to parliamentary approval. 7. The state shall have a duty to provide for the execution of judgments of the Court. The Judiciary ihall exercise supervision over the execution process. 8. Judicial matters are exclusively within the responsibility of the Judiciary, both in central judicial administration and in court level judicial administration. 9. The central responsibility for judicial administration shall preferably be vested in the Judiciary or jointly in the Judiciary and the Executive. 10. It is the duty of the state to provide adequate financial resources to allow for the due administration of justice. 11. (a) Division of work among judges should ordinarily be done under a predeter- mined plan, which can be changed in certain clearly defined circumstances. (b) In countries where the power of division of judicial work is vested in the chief justice, it is not considered inconsistent with judicial independence to accord to the chief justice the power to change the predetermined plan for sound reasons, preferably in consultation with the senior judges when practicable. (c) Subject to (a), the exclusive responsibility for case assignment should be vested in a responsible judge, preferably the President of the Court. 12. The power to transfer a judge from one court to another shall be vested in a judi- cial authority and preferably shall be subject to the judge’s consent, such consent not to be unreasonably withheld. 13. Court services should be adequately financed by the relevant government. 14. Judicial salaries and pensions shall be adequate, and should be regularly adjusted to account for price increases independently of Executive control. 15. (a) The position. of the judges, their independence, and their adequate remu- neration shall be secured by law. (b) Judicial salaries cannot be decreased during the judges’ service except as a coherent part of an overall public economic measure. 16. The Ministers of the government shall not exercise any form of pressure on judges, whether overt or covert, and shall not make statements which adversely affect the independence of individual judges, or of the Judiciary as a whole. 17. The power of pardon shall be exercised cautiously so as to avoid its use as an interference with judicial decision. 18. (a) The Executive shall refrain from any act or omission which pre-empts the judicial resolution of a dispute, or frustrates the proper execution of a court.
(b) The Executive shall not have the power to close down, or suspend, the operation of the court system at any level.
B Judges and the Legislature
19. The Legislature shall not pass legislation which retroactively reverses specific court decisions. 20. (a) Legislation introducing changes in the terms and conditions of judicial ser- vices shall not be applied to judges holding office at the time of passing the legislation, unless the changes improve the terms of service. (b) In case of legislation abolishing courts, judges serving in these courts shall not be affected, except for their transfer to another court of the same status. 21. A citizen shall have the right to be tried by the ordinary courts of law, and shall not be tried before ad hoc tribunals.
C Terms and Nature of Judicial Appointments
22. (a) Judicial appointments should generally be for life, subject to removal for cause and compulsory retirement, at an age fixed by law at the date of appointment. (b) Retirement age shall not be reduced for existing judges. 23. (a) Judges should not be appointed for probationary periods except for in legal systems in which appointments of judges do not depend on having practi- cal experience in the profession as a condition of appointment. (b) The institution of temporary judges should be avoided as far as possible except where there exists a long historic democratic tradition. 24. The number of the members of the highest court should be rigid and should not be subject to change, except by legislation. 25. Part-time judges should be appointed only with proper safeguards. 26. Selection of judges shall be based on merit.
D Judicial Removal and Discipline
27. The proceedings for discipline and removal of judges should ensure fairness to the judge, and adequate opportunity for hearing. 28. The procedure for discipline should be in camera; however, judgments in disci- plinary proceedings may be published.
29. (a) The grounds for removal of judges shall be fixed by law and shall be clearly defined. (b) All disciplinary action shall be based upon standards of judicial conduct promulgated by law, or in established rules of court. 30. A judge shall not be subject to removal unless, by reason of a criminal act or through-gross or repeated neglect or physical or mental incapacity, he has shown himself manifestly unfit to hold the position of judge. 31. In systems where the power to discipline and remove judges is vested in an insti- tution other than the Legislature, the tribunal for discipline and removal of judges shall be permanent, and be composed predominantly of member of the Judiciary. 32. The head of the court may legitimately have supervisory powers to control judges on administrative matters.
E The Press, the Judiciary and the Courts
33. It should be recognised that judicial independence does not render the judges free from public accountability, however, the press and other institutions should be aware of the potential conflict between judicial independence and excessive pressure on judges. 34. Subject to Standard 41, judges may write articles in the press, appear on televi- sion and give interviews to the press. 35. The press should show restraint in publications on pending eases where such publication may influence the outcome of the case.
F Standards of Conduct
36. Judges may not, during their term of office, serve in Executive functions, such as ministers of the government, nor may they serve as members of the Legislature or of municipal councils, unless by long historical traditions these functions are combined. 37. Judges may serve as chairmen of committees of inquiry in cases where the pro- cess requires skill of fact-finding and evidence-taking. 38. Judges shall not hold positions in political parties. 39. A judge, other than a temporary judge, may not practice law during his term of office. 40. A judge should refrain from business activities, except his personal investments, or ownership of property.
41. A judge should always behave in such a manner as to preserve the dignity of his office and the impartiality and independence of the Judiciary. 42. Judges may be organized in associations designed for judges, for furthering their rights and interests as judges. 43. Judges may take collective action to protect, their judicial independence and to uphold their position.
G Securing Impartiality and Independence
44. A judge shall enjoy immunity from legal actions in the exercise of his official functions. 45. A judge shall not sit in a case where there is a reasonable suspicion of bias or potential bias. 46. A judge shall avoid any course of conduct which might give rise to an appear- ance of partiality.
H The Internal Independence of the Judiciary
47. In the, decision-making process, a judge must be independent vis-a-vis his judi- cial colleagues and superiors.
Note—The above standards are subject to periodic review by the appropriate commit- tee or committees of the International Bar Association and amendment from time to time by the International Bar Association in plenary session as circumstances may warrant or require.
New Delhi Standards Conference Series (1980–1982): Berlin (1980), Lisbon (1981), New Delhi (October 1982), Jerusalem (March 1982)
The issue of Judicial Independence has been highlighted by numerous incidents of violation of judicial independence in many parts of the world. These violations of judi- cial independence took different forms, and occurred in countries with different systems of government. These events, the apparent diversities and conflicts between different countries on the law and practice, concerning judges and judicial independence, and generally the developments in modern society, in political and social conditions, called for the review of conceptions, traditions and principles bearing on judicial independence.
Moreover, the concepts on the nature of judicial office and on the role of the individual judge and the judicial branch have undergone changes. The time was ripe for a crystal- lization of these changing concepts in a set of International Minimum Standards of Judicial Independence. These were the main reasons behind the decision of the leaders of the Project together with the International Bar Association in August 1980 to embark upon a proj- ect for the development of an international comprehensive code of minimum stan- dards of judicial independence. In 1982 after over two years of intensive work since the initiation of the project, it was possible to develop an international code of judicial independence based on the General Report, on 29 National Reports, and 15 topical reports. The National Reports followed the guidelines laid down by the General Rapporteur, detailing the specific questions which the National Rapporteurs were requested to address. It was in 1980 at the 18th Biennial Convention in Berlin that the International Bar Association embarked upon the project for the development of an International com- prehensive code of minimum standards of judicial independence. The Project was the responsibility of the Committee on Administration of Justice in the Section of General Practice. Justice D.K. Haese of Australia, the Chairman of the Committee acted as the Project Coordinator, and Professor Shimon Shetreet served as General Rapporteur of the Project. Justice Haese succeeded Chief Justice L. King, also of Australia, in the office of Project Coordinator, in the beginning of 1982. National rapporteurs and topical Rapporteurs of the highest academic and profes- sional standing from over 30 countries took part in the Project. The participating coun- tries are geographically representative of the world, and fairly represent the major legal families of judicial systems, as well as the major systems of government. (The exception is the communist-bloc countries which abstained from involvement in the project.) After the initiation of the Project in August 1980 substantial work has already been done. The first Draft of the Minimum Standards were presented by the General Rapporteur, Professor Shimon Shetreet, to the Lisbon conference in May 1981, where the Draft Standards were debated and revised. Based on the resolutions in the Lisbon Conference and other suggestions made in the course of the proceedings in that con- ference, the General Rapporteur prepared the Jerusalem Revised Draft Standards, for debate and approval in the Jerusalem Planning Conference in March 1982. The Jerusalem Approved Standards, the fruits of the Jerusalem Conference, were submit- ted for final approval to the nineteenth iba Biennial Convention in New Delhi in October 1982, and were finally approved with slight changes. We acknowledge with gratitude the help of the National Rapporteurs and we express deep appreciation for their most significant contribution to the success of the project. We are particularly indebted to Chief Justice King and Justice Haese, the
Project coordinators, for their invaluable and indispensable work. Thanks are also due to the iba Head Office in London for their help throughout the period of work on the project. In the course of the Project we have been in touch with other organisations involved in similar efforts such as the International Commission of Jurists in Geneva, whose representatives attended our conferences in Lisbon in 1981 in Jerusalem in March 1982 and in New Delhi in October 1982.
Officers and Rapporteurs
General Coordinators
Justice David K. Haese Chief Justice Leonard King
General Rapporteur
Shimon Shetreet
Reporters
Michael D Kirby, Australia Hans W. Fasching, Austria M A Mutaleb, Bangladesh Marcel Storme, Belgium Celso Agricola Bar bi, Brazil Irma Lager, Finland F. Grivartde Kerstrat, France Enoch D. Kom, Ghana Peter Schlosser and Walther Habseheld, Federal Republic of Germany Peter Gilles, Germany Manfred Wolf, Germany K D Kerameus, Greece D.B. Casson and I.R. Scott, Great Britain Anand Prakash, India Shimon Shetreet, Israel Alessandro Pizzorusso, Italy Yasuhei Taniguchi, Japan Nobuo Kumamuto, Japan
J.M. Ganado, Malta B.J. Van Heyst, The Netherlands Niki Tobi, Nigeria Haakon I Flaraidsen, Norway Alexandra M. Pessoa Vaz, Portugal G.D. Andrew, South Africa A. Trani Pelayo, Spain Andrea Audersson,. Sweden Joseph. M.N. Kakooza, Uganda Robert B. McKay, United States of America James M. Parkison, United States of America Biographical Notes of Officers and Topical & Country Reporters:
Anres Andersson, Judge, Svea Court of Appeal, Sweden; graduate of the Faculty of Law, University of Lund, Sweden; formerly, Judge of the Stockholm City Court. Geoffrey David Andrew, Attorney, Johannesburg, South Africa; University of Capetown; Dip. Juris, University of the Orange Free State. Celci Agricola Barbi, Professor of Law and practicing lawyer in Brazil; graduate of Federal University of Minas Gerais, Brazil. Marc-Andre Bedard, Minister of Justice of Quebec, Canada. Mauro Cappelletti, Professor of Law, Stanford University, California, and Professor of Law, University of Florence, European Institute; studied at the University of Florence and Freiburg im Breisgau; has been visiting Professor at various universities, including Harvard University, University of California at Berkeley and Paris 1. David B. Casson, Dean and Professor, University of Buckingham School of Law, formerly Head of the Law Section, University of Surry, Guilford, Surrey, England. Jules Desehenes, Justice of the Superior Court of the Province of Québec, formerly the Chief Justice: of the same court, 1973–1983; legal studies University of Montréal, M.C.L., F.RS.C. Held high judicial offices in Québec, including Justice of the Court of Appeal of Quebec, (March 1972–August 1973); Knight of the Order of Malta; honorary doctoral degree: Concordia university member, United Nations Sub Commission on the Prevention of Discrimination, and Protection of: Minorities; General Coordinator, the First World Conference on the Independence of Justice; Chairman, Ad Hoc Committee, the, World Organization on the independence of Justice; author of a num- ber of books, numerous publications in legal and lay journals. Hans W Fasching, Professor of Procedural Law, University of Vienna; a graduate of University of Graz, Doctor of Laws, 1950; Chairman of the Commission of Civil Procedure of the-Federal Ministry of Justice of Austria. J.M. Ganado, Professor of Law, and attorney, Valetta, Malta; B.A., Ph.D. (London).
Peter Gilies, University Professor of Civil Law, Procedural Law and Comparative Law, Co-Director of the Institute of Comparative Law, Johann Wolfgang Goethe University, Frankfurt. Studied law and economics, 1958–1962; doctoral degree, 1965; Professor of Civil Law and Procedural Law at Goethe University, Frankfurt, 1972–1975 and since 1979; Professor of Civil Law and Procedural Law, University of Hannover, 1975–1979. Walther J. Habscheid, Professor of Law, University of Zurich, Switzerland, Doctor of Laws, University of Bonn; formerly Rector, Dean and Professor of Law University of Wuerzburg, Germany; Professor of Law, University of Geneva, honorary doctoral degree, University of Caen, France; Chairman, VIIth International Congress of Procedural Law, Wuerzburg, 1983 Author of several books and numerous publications in legal journals. Haakon I. Haraldson, Attorney-at-Law, Oslo, Norway; graduate of the Faculty of Law, University of Oslo; formerly, deputy judge at the County and the City Court of Lillehammer. David K. Hease, Judge, Family Court of Australia, Adelaide, South Australia, Chairman, International Bar Association Committee on the Administration of Justice, 1980. 1984; General Coordinator, iba Project on Minimum Standards of Judicial Independence, since 1981. Joseph M. N Kakooza, Advocate, Kampala, Uganda. Leonard James King, Chief Justice of South Australia since 1978; served in R.A.A.F., 1943–1946, in Australia and New Guinea; Bachelor of Laws, University of Adelaide, 1950; admitted to the bar, 1950; Queen’s Counsel, 1967; elected to House of’ Assembly, 1970 served, as Attorney-General, Minister of Community Welfare; and, later, Minister of Prices and Consumer Affairs; Judge of Supreme Court of South. Australia 1975. Michael D. Kirby, President, Court of Appeal, New South Wales, Australia; formerly Chairman, Law Reform Commission of Australia; Justice, Supreme Court of New South Wales; Author of books and articles in legal publications. K.D. Kerameus, Professor, Athens University Law School since 1982; LL.B., University of Thessaloniki, 1960; Ph.D., Free University of Berlin, 1962; Professor of Civil Procedure at the University of Thessaloniki Law School 1970–1982; Dean of the University Of Thessalonica Law School, 1979–1980; Visiting Professor of Law, Free University of Berlin, Hamburg, Louisiana State University, Baton Rouge, Thrace University in Komotini, Greece, Ohio State University Columbus and Tulane University, New Orleans; member of the Special Supreme Court (Constitutional Court) in Athens. F. Grivart de Kerstrat, Member, Faculty of Law and Political Science, University of Aix/Marseilles. Enoch D. Kom, Solicitor of the Superior Court of Judicature and Notary Public, Accra, Ghana; LL.B. (Land.), Barrister at Law, Gray’s Inn.
Nobuo Kumarnuto, Professor of Administrative Law at Hokkai-Gakuen University since 1974, LL.B., LL.M., LL.D, Hokkaido University and LL.M., University of California at Berkeley; Fulbright Visiting Scholar at the University of Michigan Law School 1968– 1970; Visiting Professor, Hebrew University of Jerusalem, 1981 and Tulane Law School, 1982; Author and editor of books and articles. Irma Anikkki Lager (Kepila), Acting Professor of Law, University of Helsinki since 1974; Bachelor of Laws, 1954; Licentiate Examination of Laws, 1958; Assistant Judge, 1959; J.D. 1972; Referendary in the Supreme Administrative Court, 1959–1966. Geoffrey Dawson Lane, Baron Lane,; Lord Chief Justice of England since l980; PC, 1974; Knight, 1966; AFC, 1943. Education: Trinity College, Cambridge, (Hon. Fellow, 1981); served in RAF, 1939–1945; called to Bar, Gray’s Inn, 1946; Bencher, 1966; Queen’s Counsel, 1962; Deputy Chairman, Bedford Quarter Session, 1960–1966; Rector of Bedford, 1963–1966; Judge of the High Court of Justice, Queen’s Bench Division, 1966–1974; Lord Justice of Appeal, 1974–1979; Lord of Appeal in Ordinary, 1979–1980. Mark MacGuigan, Judge of the Federal Court, Appeal Division; formerly Federal Minister of Justice, Canada. Robert B. McKay, President, Bar Association of New York City; Professor of Law, New York University; B.S., 1940, University of Kansas; J.D., 1947; Yale University; Dean of New York University, School of. Law, 1969–1975; Director of the Institute of Judicial Administration at New York University Law School; Visiting Professor of Law at a number of universities, including University of California at Berkeley, University of Kansas, University of Texas, University of California at Hastings; honorary, degrees: LL.D., 1973, Emory University; D.H.L., 1973, Mount Saint, Mary College; LL.D., 1975, Seton Hall; numerous public and professional positions author of a number of books and numerous articles in legal journals; numerous papers in academic and professional conferences. M.A. Mutaleb, Advocate, Supreme Court Bar of Bangladesh and Mymensingh District Bar; in practice since 1965; regular contributor to legal journals in his region, past Vice President of the National Bar Association of Bangladesh and past member of the Bangladesh Bar Council; Director of the Asian Legal Research Institute. Fali S. Nariman, Sr. Advocate, Supreme Court of India, New Delhi; B.A. (Hon.) St. Xavier’s College, Bombay; LL.B., Government Law College, Bombay; Vice President, LAW ASIA, the Law Association for Asia and Western Pacific; Chairman, LAW ASIA Human Rights Committee. James M. Parkison, Court Administrator, State of New Jersey; formerly Associate Director Institute of Judicial Administration at New York University, School of Law; Member, Ad Hoc Committee of the World Organization on the Independence of Justice; Special Rapporteur on Justice, First World Conference on the Independence of Justice.
Antonio Beltran Pelayo, Government Secretary Granada, Spain; B.A. and Doctorate in Law, Granada University, Spain; author of several legal publications. Alexandre M. Pessoa Vaz, Professor of Law, University of Coimbra, Portugal. Lows Edmond Pettiti, Lawyer, Paris, and Judge, European Court of Human Rights, President, Le Mouvement International des Juristes Catholiques. Alessandro Pizzorusso, Director of the Comparative Law institute, Florence University since 1983; Magistrate, 1958 1972; Professor of Constitutional Law, Pisa University, 1972–1983. Anand Piakash, Senior Advocate of the High Court and Supreme Court of India since 1973; M.A., LL.B., Delhi University; B.Sc (Econ.) and Ph.D. (Econ.), London School of Economics, London University; Barrister-at-Law, Lincoln’s Inn, London. Simone Razes, President, Cour de Cassation, France; formerly, Judge, Court of Justice of the European Communities. Peter Sehlosser, Professor of Law, LMU, Munich, Germany. I.R. Scott, Barber Professor of Law, Faculty of Law, University of Birmingham; LL.B. (Melb.), Ph.D. (London); Chairman, Committee of Management, Institute of Judicial Administration, University of Birmingham, Executive Director, Victoria Law Foundation, 1982–1983. Shimon Shetreet, Faculty of Law, Hebrew University of Jerusalem; LLB., LL.M., Hebrew University; M.C.L., D.C.L, University of Chicago; Visiting Professor of Law at a number of universities; including New York University, University of Manitoba, Canada, Wuerzburg University (Germany), University of San Diego and New York. Law School; clerk to Mr Justice Witkon of the Supreme Court of Israel; Member of Chief Justice Landau Commission on the Israeli Court System, 1980; General Rapporteur, International Bar Association Project on Minimum Standards of Judicial Independence, since 1981; Special Rapporteur (on national judges), First World Conference on the Independence of Justice, 1983; General Rapporteur, XIIth Congress of Comparative Law, (on transna- tional protection of human rights) to be held in 1986; author and editor of a number of books including “Judges on Trial” (1976) and numerous articles: in legal journals; deliv- ered many papers at international conferences and before academic audiences. Manfred Simon, retired Presiding Judge, Court of Appeal, Paris, LL.D, Bologna, LL.D., Paris. L.M. Singhvi, senior Advocate Supreme court of India; J.S.D.; Special Rapporteur, United Nations Study on the Independence and Impartiality of Judges, Lawyers, Juror and Assessors. Sir Ninian Stephen, Governor-General of the Commonwealth of Australia since,1982; A.K., G.C.M.G., G.C.V.O., K.B.C., KSt. J.; Justice of the High Court of Australia, 1972–1982; LL.B.; education: Edinburgh Academy, St. Paul’s School Chillon College, Switzerland, Scotch College, Melbourne and Melbourne University; Honorary Master of the Bench of Gray’s Inn.; held numerous legal and public positions.
Marcel Storme, Dean Faculty of Law, University of Gent, Belgium; General Secretary, International Association of Procedural Law. Yasuhei Taniguchi, Professor of Law, Kyoto University; LL.B., Kyoto University; LL.M., University of California at, Berkeley; J.S.D, Cornell University. Niki Tobi, Reader in Law, Faculty of Law, University of Maiduguri, Nigeria; LL.B., LL. M, University of Lagos, Member, Nigerian Bar; formerly, Dean of Faculty of Law, and Deputy Vice Chancellor, University of Maiduguri. B.J. Van. Heyst, Advocate, Utrecht, The Netherlands; General Secretary, Dutch Association of Procedural Law. Eurique Vescovi, Professor of Law and Attorney, Montevideo, Uruguay, Doctor of Law, Faculty of Law and Social Sciences, University of Montevideo, Uruguay; General Rapporteur, 7th International Congress of Procedural Law, Wuerzburg, 1983, on Judicial Independence. Manfred Wolf, Professor of Civil Law and Law of Procedure, Johann Wolfgang Goethe University, Frankfurt, since 1972; Judge of the Appellate Court, Frankfurt since 1977; Visiting Professor at the University of Kobe, Japan, 1978.
Publication
Shimon Shetreet and Jules Deschenes, Judicial Independence: The Contemporary Debate (Martinus Nijhoff: 1985).
Introduction
The Universal Declaration on the Independence of Justice adopted at Montreal on June 10th, 1983 was not the product of spontaneous generation. Rather, it marked the culmination of a series of efforts which for two years had progressed along a checkered path: One can readily see that attention had generally been focused on the judiciary, except for the Noto meeting on lawyers. It happens, however, that consideration had started to be given to the topic over twenty years ago by the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights of the United Nations. Interest was revived in 1978 and, on May 2nd 1980, the Economic and Social Council of the United Nations authorized the SubCommission to entrust Dr. L.M. Singhvi, of New Delhi, with the preparation of a Report on “the independence and impartiality of the judiciary, jurors and assessors and the independence of lawyers.” Now a large number of bodies were showing interest in the matter, but they were working more or less separately and there was no common forum where they could put their ideas together in order to achieve their common purpose. The author then suggested to the Noto meeting that such a general Conference be organized to deal with the wider topic as proposed in the un. The suggestion was received with sympathy and the project was born. A year later the first World Conference on the Independence of Justice convened in Montreal. It was sponsored by seven Canadian organizations and enjoyed the support of the Governments of Canada and of Quebec, and of the International Development Research Centre. Twenty-six international bodies, represented by citizens of thirty-four countries, met on that occa- sion: they included the United Nations, the four International Courts (which were thus officially gathered for the first time) and organizations with membership in the five continents. This time the participants were expected to study not only the independence of judges or that of lawyers, but more broadly what had been termed significantly “the independence of justice.” So in order to cover the field and to tie in with the mandate given to Dr. Singhvi by the un, the study was split into five chapters: International Judges, National Judges, Lawyers, Jurors and Assessors.
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_036
At the end of a week of deliberations at times heated but always courteous, the Conference adopted unanimously – this should be stressed – an ambitious Universal Declaration, in French and in English, which purports to cover the whole field of the independence of justice. The Preamble recalls the link between justice and liberty, the need for the respect of the rule of law, the respective roles of the national and the international courts, and the need for the guaranteed independence of all actors in the process of justice. Then, follow 142 compact articles, which profess to set out an universally applicable theory of the independence of justice. It is now hoped that the effort will not prove fruitless and that it will bring closer the adoption by the United Nations of a “Universal Declaration on the Independence of Justice” through which all the peoples of the world may at last see the ideal 0 f justice dawning on the horizon.
The Declaration
Unanimously adopted at the final plenary session of the First World Conference on the Independence of Justice held at Montreal (Quebec, Canada) on June 10th, 1983.
Preamble
Whereas justice constitutes one of the essential pillars of liberty; Whereas the free exercise of fundamental human rights as well as peace between nations can only be secured through respect for the rule of law; Whereas States have long established courts and other institutions with a view to assuring that justice be duly administered in their respective territories; Whereas the Charter of the United Nations has established the International Court of Justice as its principal judicial organ in order to promote the peaceful solution of dis- putes between States, in conformity with the principles of justice and international law; Whereas the Statute of the International Court of Justice provides that the latter shall be composed of a body of independent judges, elected regardless of nationality, which as a whole shall be representative of the main forms of civilisation and of the principal legal systems of the world; Whereas various Treaties have established other courts endowed with an interna- tional competence, which equally owe exclusive allegiance to the international legal order and benefit from representation of diverse legal systems; Whereas the jurisdiction vested in international courts shall be respected in order to facilitate the interpretation, application and progressive development of interna- tional law and the promotion of human rights;
Whereas national and international courts shall, within the sphere of their compe- tence, cooperate in the achievement of the foregoing objectives; Whereas all those institutions, national and international, must, within the scope of their competence, seek to promote the lofty objectives set out in the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Optional Protocol to the latter Covenant and other perti- nent international instruments, objectives which embrace the independence of the administration of the justice; Whereas such independence must be guaranteed to international judges, national judges, lawyers, jurors and assessors; Whereas the foundations of the independence of justice and the conditions of its exercise may benefit from restatement; The World Conference of the Independence of Justice Recommends to the United Nations on the consideration of this Declaration.
I International Judges
Definitions
1.01 In this chapter: I. “judges” means international judges and arbitrators; II. “court” means an international court or tribunal of universal, regional, community or specialized competence.
Independence
1.02 The international status of judges shall require and assure their individual and collective independence and their impartial and conscientious exercise of their functions in the common interest. Accordingly, States shall respect the interna- tional character of the responsibilities of judges and shall not seek to influence them in the discharge of these responsibilities. 1.03 Judges and courts shall be free in the performance of their duties to ensure that the Rule of Law is observed, and shall not admit influence from any government or any other authority external to their statutes and the interests of international justice. 1.04 When governing treaties give international courts the competence to determine their rules of procedure, such rules shall come into and remain in force upon adoption by the courts concerned. 1.05 Judges shall enjoy freedom of thought and, in the exercise of their duties, shall avoid being influenced by any considerations other than those of international justice.
1.06 The ethical standards required of national judges in the exercise of their judicial functions shall apply to judges of international courts. 1.07 The principles of judicial independence embodied in the Universal Declaration of Human Rights and other international instruments for the protection of human rights shall apply to judges. 1.08 Judges shall promote the principle of the due process of law as being an integral part of the independence of justice. 1.09 No reservation shall be made or admitted to treaty provisions relating to the fun- damental principles of independence of the judiciary. 1.10 Neither the accession of a state to the statute of a court nor the creation of new international courts shall affect the validity of these fundamental principles.
Appointment
1.11 Judges shall be nominated and appointed, or elected in accordance with govern- ing constitutional and statutory provisions which shall, if possible, not confine the power of nomination to governments or make nomination dependent on nationality. 1.12 Only a jurist of recognized standing shall be appointed or elected to be a judge of an international court. 1.13 When the statute of a court provides that judges shall be appointed on the rec- ommendation of a government, such appointment shall not be made in circum- stances in which that government may subsequently exert any influence upon the judge.
Compensation
1.14 The terms of compensation and pension of judges shall be established and maintained so as to ensure their independence. Those terms shall take into account the recognized limitations upon their professional pursuits both during and after their tenure of office, which are defined either by their statute or recog- nized and accepted in practice.
Immunities and Privileges
1.15 Judges shall enjoy privileges and immunities, facilities and prerogatives, no less than those conferred upon chiefs of diplomatic missions under and recognized by the Vienna Convention on Diplomatic Relations. Only the court concerned may lift these immunities. 1.16 Judges shall not be liable for acts done in their official capacity.
1.17 (a) In view of the importance of secrecy of judicial deliberations to the integ- rity and independence of the judicial process, judges shall respect secrecy in, and in relation to their judicial deliberations; (b) States and other external authorities shall respect and protect the secrecy and confidentiality of the courts’ deliberations at all stages.
Discipline and Removal
1.18 All measures of discipline and removal relating to judges shall be governed exclusively by the statutes and rules of their courts, and be within their jurisdiction. 1.19 Judges shall not be removed from office, except by a decision of the other mem- bers of the court and in accordance with its statute.
Judges Ad Hoc and Arbitrators
1.20 Unless reference to the context necessarily makes it inapplicable or inappropri- ate, the foregoing articles shall apply to judges ad hoc and to arbitrators in public international arbitrations.
II National Judges
Objectives and Functions
2.01 The objectives and functions of the judiciary shall include: (a) to administer the law impartially between citizen and citizen, and between citizen and state; (b) to promote, within the proper limits of the judicial function, the obser- vance and the attainment of human rights; (c) to ensure that all peoples are able to live securely under the rule of law.
Independence
2.02 Judges individually shall be free, and it shall be their duty, to decide matters before them impartially, in accordance with their assessment of the facts and their under- standing of the law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. 2.03 In the decision-making process, judges shall be independent vis-a-vis their judi- cial colleagues and superiors. Any hierarchical organization of the judiciary and
any difference in grade or rank shall in no way interfere with the right of the judge to pronounce his judgment freely. 2.04 The judiciary shall be independent of the Executive and Legislative. 2.05 The judiciary shall have jurisdiction, directly or by way or review, over all issues of a judicial nature. 2.06 (a) No ad hoc tribunals shall be established; (b) Everyone shall have the right to be tried expeditiously by the established ordinary courts or judicial tribunals under law, subject to review by the courts; (c) Some derogations may be admitted in times of grave public emergency which threatens the life of the nation but only under conditions prescribed by law, and only to the extent strictly consistent with inter- nationally recognized minimum standards and subject to review by the courts; (d) In such times of emergency: I. Civilians charged with criminal offences of any kind shall be tried by ordinary civilian courts, expanded where necessary by additional competent civilian judges; II. Detention of persons administratively without charge shall be sub- ject to review by ordinary courts by way of habeas corpus or similar procedures, so as to insure that the detention is lawful, as well as to inquire into any allegations of ill-treatment; (e) The jurisdiction of military tribunals shall be confined to military offences committed by military personnel. There shall always be a right of appeal from such tribunals to a legally qualified appellate court. 2.07 (a) No power shall be exercised so as to interfere with the judicial process. (b) The Executive shall not have control over judicial functions. (c) The Executive shall not have the power to close down or suspend the oper- ation of the courts. (d) The Executive shall refrain from any act or omission which preempts the judicial resolution of a dispute or frustrates the proper execution of a court decision. 2.08 No legislation or executive decree shall attempt retroactively, to reverse specific court decisions, nor to change the composition of the court to affect its decision-making. 2.09 Judges may take collective action to protect their judicial independence. 2.10 Judges shall always conduct themselves in such a manner as to preserve the dig- nity of their office and the impartiality and independence of the judiciary. Subject to this principle, judges shall be entitled to freedom of belief, expression, association and assembly.
Qualifications, Selections and Training
2.11 Candidates for judicial office shall be individuals of integrity and ability, well- trained in the law. They shall have equality of access to judicial office. 2.12 In the selection of judges, there shall be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or status, subject however to citizenship requirements. 2.13 The process and standards of judicial selection shall give due consideration to ensuring a fair reflection by the judiciary of the society in all its aspects. 2.14 (a) There is no single proper method of judicial selection provided it safe- guards against judicial appointments for improper motives. (b) Participation in judicial appointments by the Executive or Legislature is consistent with judicial independence, so long as appointments of judges are made in consultation with members of the judiciary and the legal pro- fession, or by a body in which members of the judiciary and the legal pro- fession participate. 2.15 Continuing education shall be available to judges.
Posting, Promotion and Transfer
2.16 The assignment of a judge, to a post within the court to which he is appointed is an internal administrative function to be carried out by the judiciary.
[Explanatory Note: Unless assignments are made by the court, there is a danger of erosion of judicial independence by outside interference. It is vital that the court not make assignments as a result of any bias or prejudice or in response to external pressures. These comments are not intended to exclude the practice in some countries of requiring that assignments be approved by a Superior Council of the judiciary or similar body.]
2.17 Promotion of a judge shall be based on an objective assessment of the candi- date’s integrity and independence of judgment, professional competence, expe- rience, humanity and commitment to uphold the rule of law. Article 2.14 shall apply to promotions.
2.18 Except pursuant to a system of regular rotation, judges shall not be transferred from one jurisdiction or function to another without their consent, but such consent shall not be unreasonably withheld.
[Explanatory Note: Unless this principle is accepted, transfer can be used to pun- ish an independent and courageous judge, and to deter others from following his
example. This principle is not intended to interfere with sound administrative practices enumerated in the law. Thus exceptions may be made, for example, where a judge in his early years is transferred from post to post to enrich his judicial experience.]
Tenure
2.19 (a) The term of office of the judges, their independence, security, adequate remuneration and conditions of service shall be secured by law and shall not be altered to their detriment. (b) Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or expiry of their term of office, where such exists. 2.20 The appointment of temporary judges and the appointment of judges for proba- tionary periods is inconsistent with judicial independence. Where such appoint- ments exist, they shall be phased out gradually.
[Explanatory Note: This text is not intended to exclude part-time judges. Where such practice exists, proper safeguards shall be laid down to ensure impartiality and avoid conflict of interests. Nor is this text intended to exclude probationary periods for judges after their initial appointment, in countries which have a career judiciary, such as in civil law countries.]
2.21 (a) During their terms of office, judges shall receive salaries and after retire- ment, they shall receive pensions. (b) The salaries and pensions of judges shall be adequate, commensurate with the status, dignity and responsibility of their office, and be regularly adjusted to account fully for price increases. (c) Judicial salaries shall not be decreased during the judges’ term of office, except as a coherent part of an overall public economic measure. 2.22 Retirement age shall not be altered for judges in office without their consent. 2.23 The executive authorities shall, at all times, ensure the security and physical pro- tection of judges and their families.
Immunities and Privileges
2.24 Judges shall enjoy immunity from suit, or harassment, for acts and omissions in their official capacity. 2.25 (a) Judges shall be bound by professional secrecy in relation to their delibera- tions, and to confidential information acquired in the course of their duties other than in public proceedings. (b) Judges shall not be requried to testify on such matters.
Disqualifications
2.26 Judges may not serve in an executive or a legislative capacity unless it is clear that these functions are combined, without compromising judicial independence. 2.27 Judges may not serve as chairmen or members of committees of inquiry, except in cases where judicial skills are required. 2.28 Judges shall not be active members of, or hold positions in, political parties.
[Explanatory Note: This text is not intended to permit membership of judges in political parties in countries where under law or practice such is excluded, but to lay down standards limiting the scope of judicial involvement in countries where such membership is permissible.]
2.29 Judges may not practice law. [Explanatory Note: See note 2.20.1] 2.30 Judges shall refrain from business activities, except as incidental to their per- sonal investments or their ownership of property. 2.31 A judge shall not sit in a case where a reasonable apprehension of bias on his part may arise.
Discipline and Removal
2.32 A complaint against a judge shall be processed expeditiously and fairly under an appropriate practice, and the judge shall have the opportunity to comment on the complaint at the initial stage. The examination of the complaint at its initial stage shall be kept confidential, unless otherwise requested by the judge. 2.33 (a) The proceedings for judicial removal or discipline, when such are initiated, shall be held before a court or a board predominantly composed of mem- bers of the judiciary and selected by the judiciary. (b) However, the power of removal may be vested in the Legislature by impeachment or joint address, preferably upon a recommendation of a court or board as referred to in 2.33(a).
[Explanatory Note: In countries where the legal profession plays an indispens- able role in maintaining the rule of law and judicial independence, it is recom- mended that members of the legal profession participate in the selection of the members of the court or board, and be included as members thereof.
2.34 All disciplinary action shall be based upon established standards of judicial conduct.
2.35 The proceedings for discipline of judges shall ensure fairness to the judge and the opportunity of a full hearing. 2.36 With the exception of proceedings before the Legislature, the proceedings for discipline and removal shall be held in camera. The judge may, however, request that the hearing be held in public, subject to a final and reasoned disposition of this request by the disciplinary Tribunal. Judgments in disciplinary proceedings, whether held in camera or in public, may be published. 2.37 With the exception of proceedings before the Legislature or in connection with them, the decision of a disciplinary Tribunal shall be subject to appeal to a court. 2.38 A judge shall not be subject to removal except on proved grounds of incapacity or misbehaviour, rendering him unfit to continue in office. 2.39 In the event that a court is abolished, judges serving in this court shall not be affected, except for their transfer to another court of the same status.
Court Administration
2.40 The main responsibility for court administration shall vest in the judiciary. 2.41 It shall be a priority of the highest order, for the state to provide adequate resources to allow for the due administration of justice, including physical facilities appropriate for the maintenance of judicial independence, dignity and efficiency, judicial and administrative personnel, and operating budgets. 2.42 The budget of the court shall be prepared by the competent authority in collabo- ration with the judiciary. The judiciary shall submit their estimate of the budget requirements to the appropriate authority. 2.43 The judiciary shall alone be responsible for assigning cases to individual judges or to sections of a court composed of several judges, in accordance with law or rules of court. 2.44 The head of the court may exercise supervisory powers over judges on adminis- trative matters.
Miscellaneous
2.45 A judge shall ensure the fair conduct of the trial and inquire fully into any allega- tion made of a violation of the rights of a party or of a witness, including allega- tions of ill-treatment. 2.46 Judges shall accord respect to the members of the Bar. 2.47 The state shall ensure the due and proper execution of orders and judgments of the courts; but supervision over the execution of orders and judgments process shall be vested in the judiciary.
2.48 Judges shall keep themselves informed about international conventions and other instruments establishing human rights’ norms, and shall seek to imple- ment them as far as feasible, within the limits set by their national constitutions and laws. 2.49 The provisions of Chapter U: National Judges, shall apply to all persons exercising judicial functions, including arbitrators and public prosecutors, unless reference to the context necessarily makes them inapplicable or inappropriate.
III Lawyers
Definitions
3.01 In this chapter: (a) “lawyer” means a person qualified and authorized to practice before the courts, and to advise and represent his clients in legal matters; (b) “Bar association” means the recognized professional association to which lawyers within a given jurisdiction belong.
General Principles
3.02 The legal profession is one of the institutions referred to in the preamble to this declaration. Its independence constitutes an essential guarantee for the promo- tion and protection of human rights. 3.03 There shall be a fair and equitable system of administration of justice, which guarantees the independence of lawyers in the discharge of their professional duties without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. 3.04 All persons shall have effective access to legal services provided by an indepen- dent lawyer, to protect and establish their economic, social and cultural, as well as civil and political rights.
Legal Education and Entry into the Legal Profession
3.05 Legal education shall be open to all persons with requisite qualifications, and no one shall be denied such opportunity by reason of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or status. 3.06 Legal education shall be designed to promote in the public interest, in addition to technical competence, awareness of the ideals and ethical duties of the
lawyer, and of human rights and fundamental freedoms recognized by national and international law. 3.07 Programmes of legal education shall have regard to the social responsibilities of the lawyer, including cooperation in providing legal services to the poor and the promotion and defence of economic, social and cultural rights in the process of development. 3.08 Every person having the necessary integrity, good character and qualifications in law shall be entitled to become a lawyer, and to continue in practice without discrimination for having been convicted of an offence for exercising his inter- nationally recognized civil or political rights.
Education of the Public Concerning the Law
3.09 It shall be the responsibility of the lawyer to educate the members of the public about the principles of the rule of law, the importance of the independence of the judiciary and of the legal profession and to inform them about their rights and duties, and the relevant and available remedies.
Rights and Duties of Lawyers
3.10 The duties of a lawyer towards his client include: (a) advising the client as to his legal rights and obligations; (b) taking legal action to protect him and his interests; and, where required, (c) representing him before courts, tribunals or administrative authorities. 3.11 The lawyer, in discharging his duties, shall at all times act freely, diligently and fearlessly in accordance with the wishes of his client and subject to the estab- lished rules, standards and ethics of his profession without any inhibition or pressure from the authorities or the public. 3.12 Every person and group of persons is entitled to call upon the assistance of a lawyer to defend his or its interests or cause within the law, and it is the duty of the lawyer to do so to the best of his ability. Consequently the lawyer is not to be identified by the authorities or the public with his client or his client’s cause, however popular or unpopular it may be. 3.13 No lawyer shall suffer or be threatened with penal, civil, administrative, eco- nomic or other sanctions by reason of his having advised or represented any client or client’s cause. 3.14 No court or administrative authority shall refuse to recognize the right of a law- yer to appear before it for his client. 3.15 It is the duty of a lawyer to show proper respect towards the judiciary. He shall have the right to raise an objection to the participation or continued participa- tion of a judge in a particular case, or to the conduct of a trial or hearing.
3.16 If any proceedings are taken against a lawyer for failing to show proper respect towards a court, no sanction against him shall be imposed by a judge who participated in the proceedings which gave rise to the charge against the lawyer. 3.17 Save as provided in these principles, a lawyer shall enjoy civil and penal immu- nity for relevant statements made in good faith in written or oral pleadings, or in his professional appearances before a court, tribunal or other legal or adminis- trative authority. 3.18 The independence of lawyers, in dealing with persons deprived of their liberty, shall be guaranteed so as to ensure that they have free and fair legal assistance. Safeguards shall be built to avoid any possible suggestions of collusion, arrangement or dependence between the lawyer who acts for them and the authorities. 3.19 Lawyers shall have all such other facilities and privileges as are necessary to fulfill their professional responsibilities effectively, including: a) absolute confi- dentiality of the lawyer-client relationship; b) the right to travel and to consult with their clients freely, both within their own country and abroad; c) the right freely to seek, to receive and, subject to the rules of their profession, to impart information and ideas relating to their professional work; d) the right to accept or refuse a client or a brief. 3.20 Lawyers shall enjoy freedom of belief, expression, association and assembly; and in particular they shall have the right to: (a) take part in public discussion of mat- ters concerning the law and the administration of justice, (b) join or form freely local, national and international organizations, (c) propose and recommend well-considered law reforms in the public interest and inform the public about such matters, and (d) take full and active part in the political, social and cultural life of their country. 3.21 Rules and regulations governing the fees and remunerations of lawyers shall be designed to ensure that they earn a fair and adequate income, and legal services are made available to the public on reasonable terms.
Legal Services for the Poor
3.22 It is a necessary corollary of the concept of an independent bar, that its members shall make their services available to all sectors of society, so that no one may be denied justice, and shall promote the cause of justice by protecting the human rights, economic, social and cultural, as well as civil and political, of individuals and groups. 3.23 Governments shall be responsible for providing sufficient funding for legal ser- vice programmes for the poor.
3.24 Lawyers engaged in legal service programmes and organizations, which are financed wholly, or in part, from public funds, shall receive adequate remu- neration and enjoy full guarantees of their professional independence in par- ticular by: – the direction of such programmes or organizations being entrusted to an independent board, composed mainly or entirely of members of the pro- fession, with full control over its policies, budget and staff; – recognition that, in serving the cause of justice, the lawyer’s primary duty is towards his client, whom he must advise and represent in conformity with his professional conscience and judgment.
The Bar Association
3.25 There shall be established in each jurisdiction one or more independent and self-governing associations of lawyers recognized in law, whose council or other executive body shall be freely elected by all the members without interference of any kind by any other body or person. This shall be without prejudice to their right to form or join, in addition, other professional associations of lawyers and jurists. 3.26 In order to enjoy the right of audience before the courts, all lawyers shall be members of the appropriate Bar Association.
Function of the Bar Association
3.27 The functions of a Bar Association in ensuring the independence of the legal profession shall be inter alia: (a) to promote and uphold the cause of justice, without fear or favour; (b) to maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession; (c) to defend the role of lawyers in society and preserve the independence of the profession; (d) to protect and defend the dignity and independence of the judiciary; (e) to promote the free and equal access of the public to the system of justice, including the provision of legal aid and advice; (f) to promote the right of everyone to a fair and public hearing before a com- petent, independent and impartial tribunal, and in accordance with proper procedures in all matters; (g) to promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and applica- tion of existing and proposed legislation;
(h) to promote a high standard of legal education as a prerequisite for entry into the profession; (i) to ensure that there is free access to the profession for all persons having the requisite professional competence and good character, without discrimination of any kind, and to give assistance to new entrants into the profession; (j) to promote the welfare of members of the profession and render assis- tance to a member of his family in appropriate cases; (k) to affiliate with, and participate in, the activities of international organiza- tions of lawyers. 3.28 Where a person involved in litigation wishes to engage a lawyer from another country to act with a local lawyer, the Bar Association shall cooperate in assisting the foreign lawyer to obtain the necessary right of audience. 3.29 To enable the Bar Association to fulfill its function of preserving the independence of lawyers, it shall be informed immediately of the reason and legal basis for the arrest or detention of any lawyer; and for the same purpose the association shall have prior notice for: 0 any search of his person or property, (ii) any seizure of documents in his possessions, and (iii) any decision to take pro- ceedings affecting or calling into question the integrity of a lawyer. In such cases, the Bar Association shall be entitled to be represented by its president or nomi- nee, to follow the proceedings, and in particular to ensure that professional secrecy is safeguarded.
Disciplinary Proceedings
3.30 The Bar Association shall freely establish and enforce, in accordance with the law, a code of professional conduct of lawyers. 3.31 The Bar Association shall have exclusive competence to initiate and conduct dis- ciplinary proceedings against lawyers on its own initiative or at the request of a litigant. Although no court or public authority shall itself take disciplinary proceedings against a lawyer, it may report a case to the Bar Association with a view to its initiating disciplinary proceedings. 3.32 Disciplinary proceedings shall be conducted in the first instance by a disciplin- ary committee established by the Bar Association. 3.33 An appeal shall lie from a decision of the disciplinary committee to an appropri- ate appellate body. 3.34 Disciplinary proceedings shall be conducted with full observance of the require- ments of fair and proper procedure, in the light of the principles expressed in this declaration.
IV Jurors
Selection of Prospective Jurors
4.01 The opportunity for jury service shall be extended without distinction of any kind by reason of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or status, subject however to citizenship requirements. 4.02 The names of prospective jurors shall be drawn from a jury source list compiled from one or more regularly maintained lists of persons residing in the court’s jurisdiction. 4.03 The jury source list shall be representative, and shall be as inclusive of the adult population in the jurisdiction, as is feasible. 4.04 The Court shall periodically review the jury source list for its representativeness and inclusiveness. Should the Court determine that improvement is needed in the representativeness or inclusiveness of the jury source list, appropriate cor- rective action shall be taken. 4.05 Random selection procedures shall be used at all stages throughout the jury selection process except as provided herein. 4.06 The frequency and the length of time that persons are called upon to perform jury service and to be available therefore, shall be the minimum consistent with the needs of justice. 4.07 All automatic excuses or exemptions from jury service shall be eliminated. 4.08 Eligible persons who are summoned may be excused from jury service only for valid reason by the court, or with its authorization.
Selection of a Particular Jury
4.09 Examination of prospective jurors shall be limited to matters relevant to deter- mining whether to remove a juror for cause, and to exercising peremptory challenges. 4.10 If the judge determines during the examination of prospective jurors, that an individual is unable or unwilling to hear the particular case at issue fairly and impartially, the individual shall be removed from the panel. Such a determina- tion may be made on motion of a party or on the judge’s own initiative. 4.11 In jurisdictions where peremptory challenges are permitted, their number and the procedure for exercising them shall be uniform for the same type of case. 4.12 Peremptory challenges shall be limited to a number no larger than necessary, to provide reasonable assurance of obtaining an unbiased jury.
Administration of the Jury System
4.13 The responsibility for administration of the jury system shall be under the control of the judiciary. 4.14 The notice summoning a person to jury service shall be in writing, easily under- standable, and delivered sufficiently in advance. 4.15 Courts shall employ the services of prospective jurors, so as to achieve the best possible use of them with a minimum of inconvenience. 4.16 Courts shall provide adequate protection for jurors from threat and intimidation. 4.17 Courts shall provide an adequate and suitable environment for jurors, and jury facilities shall be arranged to minimize contact between jurors and parties, counsel and the public. 4.18 Persons called for jury service shall receive a reasonable allowance. 4.19 Employers shall be prohibited from penalizing employees who are called for jury service.
Jury Consideration and Deliberations
4.20 Procedures shall be provided to prevent a trial from being terminated because of unforeseen circumstances which would reduce the number of jurors. 4.21 Courts shall provide some form of orientation or instruction to persons called for jury service, to increase prospective jurors understanding of the judicial system, and prepare them to serve competently as jurors. 4.22 In simple language the trial judge shall: (i) directly following empanelment of the jury, give preliminary explanations of the jury’s role and of trial procedures; (ii) prior to commencement of deliberations, direct the jury on the law. 4.23 A jury’s deliberations shall be held in secrecy. Jurors shall not make public, rea- sons for their decisions. 4.24 (a) A jury shall be sequestered only for the purpose of insulating its members from improper information or influence. 4.25 (b) Standard procedures shall be promulgated to make certain that the inconve- nience and discomfort of the sequestered jurors are minimized.
V Assessors
Status
5.01 In defining assessor, the following shall be considered: In general, on certain judicial, quasi-judicial bodies or administrative tribunals, the assessor sits with a
judge, magistrate or other jurist, to assist him in his duties. In most cases he is a person who does not necessarily have legal training, but who has some specific professional qualification or socio-economic expertise, that pertains to the sub- ject-matter under consideration. 5.02 In some cases, the assessor shares with his legally-trained colleague, responsibil- ity for the decision to be rendered: this then becomes a multidisciplinary judicial or quasi-judicial body.
Appointment
5.03 Unless he is selected by the parties unanimously, the assessor shall be appointed by a neutral authority not involved in the dispute. 5.04 Unless agreed upon by the parties or provided by law, the assessor shall be paid according to the decision of a neutral authority not involved in the dispute. 5.05 The assessor shall be selected for reasons of integrity and competence especially relevant to the matter to be considered by him. 5.06 The assessor shall enjoy a tenure which guarantees his independence; if he serves on a permanent basis he shall be guaranteed security, adequate remu- neration and conditions of service. 5.07 Before commencing his duties, the assessor shall take an oath or affirmation of office.
Exercise of Mandate
5.08 In the decision-making process, the assessor shall be free from any order or instruction by the authority which has appointed him, by the parties or by the professional associations to which he belongs. 5.09 The assessor shall have the right to participate in the decision with complete freedom and independence in the area of his jurisdiction. 5.10 The assessor shall behave in such a manner as will maintain the dignity of his position and the impartiality and independence of justice. 5.11 The assessor shall not sit in a case where a reasonable apprehension of bias on his part may arise. 5.12 The assessor shall be free to withdraw for generally accepted reasons.
Powers and Immunity
5.13 The assessor shall be vested with the authority, immunity and powers necessary to carry out his duties. 5.14 The assessor shall not be sued or harassed for acts and omissions in his official capacity.
Dismissal
5.15 The assessor shall not be dismissed in the course of his mandate except for inca- pacity or misbehaviour.
1 Montreal Conference 1983: Independence of Justice Conference, Montreal Canada (1983)
In June 1983 the First World Conference on the Independence of Justice was held in Montreal at the Queen Elizabeth Hotel under the leadership of the then Chief Justice Jules Deschenes. Chief Justice Deschenes, succeeded in the difficult task of gathering under one roof about 130 distinguished jurists representing some 20 international organisations in order to approve a Universal Declaration on the Independence of Justice. Long before the conference in Montreal, a steering committee developed a Draft of the Declaration, which was put before the participants of the Montreal Conference. The debates in Montreal were conducted in five Commissions, which discussed each of the Five Chapters of the Declaration:
(I) The International Judges (led by Judge Oxner and Batonnier Pettiti); (II) The National Judges (led by Justice Gonthier and Shimon Shetreet); (III) The Lawyers (led by Bttonier Louis Phillippe de Grandpr, and Debo Akande); (IV) The Jury (led by Chief Justice William Sinclair and Mr. James Parkison); (V) The Assessors (led by Judge Guerin and Judge Poirier).
The chapters of the Declaration were finally approved by a plenary session of the Conference. Among the organisations which were represented in Montreal were the International Bar Association, International Commission of Jurists, International Court of Justice at The Hague, LAWASIA, European Court of Human Rights, Amnesty International, and numerous international lawyers’ organization.
Officers of the Montreal Conference
Chairman of the Conference
Chief Justice Jules Deschens, Chief Justice of Quebec
Commissions of Montreal Conference
Commission of International Judges Chairs: Judge Oxner and Batonnier Pettiti
Commission of National Judges Chairs: Justice Gonthier and Professor Shimon Shetreet
Commission of Lawyers Chairs: Bttonier Louis Phillippe de Grandpre, and Debo Akande
Commission of the Jury Chairs: Chief Justice William Sinclair and Mr. James Parkison
Commission of the Assessors Chairs: Judge Guerin and Judge Poirier
Other Contributors of Papers at the Conference
Debo Akande Marc-Andrg Ballard Mauro Cappelletti Judge Jules Deschenes Bttonier Louis Phillippe de Grandpre Judge Guerin Justice Gonthier Justice Haese Lord Lane Professor Mark MácGuigan Judge Oxner Mr. James Parkison L.E. Pettiti Judge Poirier Simone Rozes Professor Shimon Shetreet Manfred Simon William Sinclair L.M. Singhvi Sir Ninian Stephen
In Memoriam The Late HE Markus Buechel Former Prime Minister of the Principality of Liechtenstein
In memoriam of our colleague The late HE Markus Buechel Former Prime Minister of the Principality of Liechtenstein and Vice President of the jiwp Association we bring here the sad note of his passing away and selected memo- rial notes of the jiwp Members
From Prof Shimon Shetreet
Mourning the untimely passing away of our dear colleague Makus Buechel the former prime minister of Liechtenstein
It is with deep sorrow and personal feeling of great loss that I am writing to advise that our dear friend and colleague Markus Buechel passed away this morning 9th of July at 6 am at his home in Rugell, Lichtenstein. In the last year he has conducted a challenging battle with a serious illness and in the last month he suffered a setback and in the last week his situation deteriorated Markus was a significant partner in the International Project of Judicial Independence. He hosted the December 2007 conference of the International Project of Judicial Independence, and took part in our con- ferences including the last one held in October 2012 at the University of Ghent. He served as the Vice President of the International Association of Judicial Independence and World Peace. The funeral will be held on Friday 10:00 am in Liechtenstein. I will send further details when I receive them. We mourn his passing away and we send condolences to Mrs Elena Buechel and David, the son. We will remember him as a fine man, distinguished leader, a devoted family man, a generous gentleman and a committed friend. We will greatly miss him. Sincerely, SHIMON SHETREET President, The International Association of Judicial Independence and World Peace
© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_037
From Professor HP Lee
Dear Shimon, Rose and I were deeply saddened by the news of the passing away of Markus. On the number of occasions we met him, he was always the paragon of gentlemanly behaviour and politeness. He gener- ously extended his hand of friendship to us. We were extremely touched by his concern and lovely floral bouquet when Rose had to undergo an operation in the Hadassah Hospital after she had a fall in Jerusalem. Please convey our condolences to Mrs Elena Buechel and David. Sincerely, HP and Rose
Professor Hoong Phun (‘HP’) Lee, Associate Dean (Academic Resourcing), Sir John Latham Professor of Law, Faculty of Law, Monash University,
From Professor Maimon Schwartzchield
Dear Shimon, This is very sad news. Markus was a kind, erudite, and courageously wise friend. We will miss him very much. With sorrow Maimon
From Professor Avrom Sherr
Likewise Shimon. He was a delightful man and so full of life. Avrom
From Professor Marcel Storme
Dear Shimon, I am very Sad that we lost our excellent colleague and good friend. He was still my guest at my home in Gent last year…I pray for him and for his family. Marcel STORME
From Professor Keith Uff
I share the sorrow of the other respondents to Shimon’s e-mail concern- ing the death of Markus Buechel. He will be sorely missed by many. Keith Uff
From Professor Fryderyk Andrzej Zoll
I am so sorry about this. It is just unbelievable Fryderyk
From Professor Neil Andrews
Dear Shimon thank you for letting us know. This is really sad and sudden news. I first met Markus when he attended your Herbert Smith Professor lecture in Cambridge, quite a few years ago. Since then, of course, we have all seen him regularly, and in so many countries. He was in twinkling form last Autumn when we met in Belgium at Gent. I remember having a long conversation with him, during which he ranged across a vast array of topics (history, culture, religion, social changes). And he loved being part of this group. Such an interesting and intellectually vital man. I will certainly miss him. I wish you and all our colleagues well. N
From Professor Christopher Forsyth
Dear Shimon, I share the sorrow of others at the passing of Markus whose kindness and sensitivity were exceptional. As ever, Christopher
From Professor Ada Pellegrini
Dear Shimon, it is with deep sorrow that I received the sad and unexpected news about the loss of Markus Buechel.
I mourn his passing away and send condolences to his family. Ada Pellegrini Grinover
From Professor Daniel Thuerer
Dear all I am deeply sad. Markus Büchel was a remarkable man: gentle, warm, highly intelligent, cultivated, interested in other peoples’ ideas and feel- ings. The loss is big. We will all miss him. Cordially Daniel Thürer
From Senior advocate Dmitry V. Magonya
Dear Shimon, Dear Colleagues, I would like to express my deepest feelings about the loss of our dear friend and colleague Markus. Markus was an eminent person not indifferent to the global challenges of the contemporary world connected with such fundamental issues as human rights and world peace. Thanks to his scientific and personal contribution, we’ve worked out the International Project of Judicial Independence and moved forward in maintaining the unified rules of law all around the world. Moreover, the whole epoch in the modern Liechtenstein history is connected with the name of this prominent political figure. For years occupying important government posts, he has made a great contribu- tion to the development of his country. In Russia Markus Buechel will be remembered as a successive supporter of strengthening the friendly rela- tions and mutually fruitful cooperation between Russia and Liechtenstein. His dedication to his work has deserved the profound respect and love of all who knew him. Please accept my heartfelt condolences and give my sincere sympathy and support to his family and loved ones. Sincerely yours, Dmitry
Abuse of power 315 Austrian Supreme Court, the 451 Accountability of the judiciary to the Bachman, Michelle 384 parliament 233, 244, 403 Baker, David 384 Accountability, judicial 35, 38, 374, 396 Balancing independence and Administrative Adjudicators 43, 44, 465, accountability 35, 36 477, 478, 479, 482, 498, 499 Bam, Dimitri 385 Administrative judges 43, 44, 162, 436, Belgium Constitutional Court 137, 138 439, 479 Belgium Court of Cassation 137, 140 Administrative procedural code 437, 440 Bemess, Robert 379 Agenda for Next Conferences 465, 481 Benjamin, Brent 382 Air pollution 207, 208 Bilateral investment treaties (“bits”) 302, Alabama 375 303, 304, 305, 306, 307, 309, 310, 311 Alaska 375, 379, 386 Briffault, Richard 377, 378 Alien combatants 28, 29 British Constitutional Reform Act 18 Amendments to the Mt. Scopus British Human Rights Act 18, 26, 29, 40, Standards 466, 474 45, 185, 187, 188, 190, 196, 198, 203, 205, 215, American Bar Association (“aba”) 22, 219, 397, 398, 401, 407, 467 228, 292, 282, 384, 496 Bureaucratization 412, 429 American Family Association 384 Arbitration 266, 267, 274, 340–362, 438, California code of conduct 22, 293, 380 439, 440, 441 California 375, 382 Arizona 375, 382 Canada 18, 22, 28, 29, 68, 282, 285, Australia 18, 22, 24, 26, 33, 34, 36, 39, 68, 293, 313 146, 203, 205, 232–250, 281–285, 293, 296, Cantons 363, 370 308, 309, 466, 468 Challenges to constitutional Australian Constitution 34, 35, 242 structure 105 Austria 19, 68, 156, 445–464 Challenge of Demarcating Boundary Line Austria, development of the law by judicial Between Executive Action and Court decisions 457 Intervention 190 Austria, examples in Austrian Civil Procedure Challenges to judicial independence Law 459 25, 26 Austria, existence of independent Circuit Court (us) 376, 380, 383 courts 446 Civil Law tradition 217 Austria, independence and Civil Procedure Code of the Russian impartiality in the Austrian Civil Federation. 2002 225, 228 Procedure 449 Civil Rights Act 94 Austria, independence of a state court Civil society xxxiv, 117, 118, 119, 121, 124, judge 444 128, 131, 132, 187, 319, 410 Austria, impartiality of a state court Clinton, Hillary 377 judge 449 Code of Criminal Procedure 364, Austria, jurisprudence shall be based on 369, 370 law 456 Code of Judicial Conduct 5, 6, 11, 20, 22, Austria, right to a lawful judge 450 46, 292, 293, 294, 327, 382, 384, 480 Austrian Administrative Court, the 453 Code of Judicial Ethics 22, 293, 295, 329, Austrian Constitutional Court, the 452 380, 416, 417
Commercial Arbitration Procedure Development of the International Project of Code of the Russian Federation Judicial Independence 466 2002 228, 235 Dispute settlement mechanism 304, 311, Commercial arbitration 266, 312, 316, 341, 312, 316, 435 351, 360, 361 Disqualification of judges 30, 281, 284, Commercial award 317 286, 331, 337, 384, 497, 505, 532 Commercial risk 303, 304 District attorney 364, 366, 367, 368, 369 Common law 205, 266 District Court (us) 376 Confusion of the roles of professions Division of powers 24, 26 220, 221 Duty to Send a Warning Letter to Affected Constitutional adjudication 16, 26, 33, Persons in Public Inquires 148 396, 399, 400, 401, 409, 410 Constitutional court 53, 54, 55, 56, Economic growth xxxiv 169, 397 ECtHR 18, 102, 103, 269, 474, 475, 476, 477 Constitutional review 30, 32, 155, 156, 159, Elections 212, 288, 374 169, 170, 173, 176, 177, 398, 400, 452 Elections, Judicial 373–386 Constitutional tribunals 30, 156, 166, 177 El-Masri Case 107, 109, 110, 114 Consultation duty 401 Energy Charter Treaty (“ect”) 302, 304 Contemporary judiciary 45, 47 Enforcement of a commercial arbitral Control over court funds 196, 428 award 308, 310, 312, 315, 316, 317 Conversion contract 247, 310, 311, 312 England 255, 257, 263, 266, 267, 286, 294, Corriher, Billy 443, 444 296, 340, 341, 355 Corruption 53, 55, 76, 84, 96, 318, 319, 320, Equality of the three Highest Courts in 321, 328, 337, 376, 377, 384, 433 Austria 450 Court of Justice 100, 102, 155, 168, 330, European Constitutional Courts 162 334, 335, 359, 438, 451, 470 European Convention on Human Covered investment 304, 309, 311 Rights 79, 80, 83, 363 Covered investor 308 European Court of Human Rights 18, 32, cpc interference in trial courts 425 67, 108, 114, 128, 334, 363, 399 Cravans, Sarah 373 European Court of Justice 102, 155, Cultural influence on civil 334, 359 procedure 388, 392 European treaties 167 Culture of judicial independence xxxiv, Expressly Provided Procedure for Selection of 19, 465 Chief Justice 2011 465 Culture of Judicial Independence: Expropriation 173, 305, 306, 307, 316, 437 Conceptual Foundations and Practical Extraordinary Chambers in the Courts of Challenges xxxiii, xxxv Cambodia 324, 336
Deference (judicial deference, due Fairness in Criminal Justice 149 deference) 191, 201, 202, 206, 214, Fairness in Criminal Procedure 151 215, 250 Fairness Requirement before Commission Deficiencies in mainland China 425–430 of Inquiry 150 Defining religion 89, 90 Fairness: The requirement of Impartiality Definition of investment 302, 303, 304, in Administrative Law 147 305, 309, 314, 316 Federal Court 363, 364, 365, 366, 369 Delineating independent authority 33, Ferejohn, John 378, 379 133, 396, 398, 404, 490, 493 Fiftieth Anniversary of the International Democracy 15, 16, 20, 21, 26, 47 Association of Procedural Law 466 Democratic accountability 396, 398, 404 First Amendment 91, 92, 376, 377
Florida 375, 379 Independence 224, 225, 226, 227 Free Exercise Clause 90, 93 Independence of the judiciary 34, 137, Freedom 8, 17, 94, 100 213, 488 Independence of the judiciary in the Fortis Genesis of the Right to the Truth: the case (Belgium) 140 Inter-American Court of Human Rights’ Independent arbitrator, impossibility of Case Law 122 being 219 Georgia 375, 379, 380 Influence of higher courts 429 Ghent Conference 20, 65, 67 Institutional structure 5, 20, 480 Ghent 465, 466, 471, 473, 480, 481, 482 Inter-American Court for Human Global judicial ethics code 13, 465, 481, Rights 108, 109, 118, 119, 120, 122, 125, 482, 483 126, 127, 128, 129, 130, 133, 334 Good cause 478 International Bar Association 466, Government policy 207, 208, 211, 212, 468, 470 213, 215 International Chamber of Commerce Grounds for recusing a judge 224, 225, (“icc”) 303, 308, 356 226, 227 International Conferences xxxv, xxxvi In civil procedure 224 International Congress on the Law of Civil In judicial courts 225 Procedure 65 In criminal courts 224 International Court of Justice 323, Guide to Judicial Conduct 228, 230, 231 330, 470 Guidelines Regarding Public Enquiries by International Criminal Court 330 Judges 2012 481 International Criminal Tribunal for Rwanda 332 Hard cases 407 International Criminal Tribunal for the History of judicial independence 15, 16, former Yugoslav Republic 330 419, 420 International Project of Judicial Hong Kong 202, 206, 207, 208, 210, Independence xxxiv, xxxvi 212, 216 Investment arbitration 302, 305, 306, 308, House of Lords Select Constitution 310, 311, 312, 313, 314, 315, 316, 317 Committee 398, 404, 405, 406 Investor-State settlement mechanisms Human rights 18, 26, 40, 84, 85, 99, 107, (arbitration) 304, 312 108, 123, 128, 129, 151, 185, 187, 188, 189, 196, Iowa for Freedom 384 206, 274, 345, 357, 369, 363, 364, 365, 367, Israel 293, 296 368, 369, 397, 398, 401, 407, 431, 467, Israeli religious court system 90, 96 474, 475 Italian Code of Public Contracts 441 it-Justice 69 icc Arbitration 303, 304, 309, 311, 315 icc award 308, 311, 312, 314, 315, 316 jiwp Association Project xxxv, xxxvi icsid jurisdiction 302, 303, 304, 305, 306, jiwp association 3, 7, 21, 70, 465, 466, 309, 311, 314, 315 467, 483 Illinois 201, 374 Judge Hlophe 49–64 Immigration 202, 211, 212 Judge’s right to be heard 57, 58, 59 Impact of European court of human rights Judges in Poland 218, 220 on Swiss law 363 Judges on the Market of legal Impartiality 224, 225, 226, 229, 373, 449 writings 221, 222 Impartiality, of judges 374 Judgments in Poland 218, 220, 222 Implementation action 440 Judicial accountability 374 Importance of judicial independence 14, 15 Judicial and Judicious Review 182
Judicial appointments 33, 37, 45, 52, 138, Legal autonomy 90, 97 249, 275, 290, 322, 326, 330, 366, 375, 379, Legal Profession and Judicial 397, 405, 412, 479, 493, 514 Independence 481 Judicial appointments criteria 375, 379 Legislation impacting on courts and court Judicial clarification 229, 230, 231 decisions 236 Judicial diversity 401, 404, 405 Levitt, Justin 386 Judicial ethics 11, 293, 294, 295, 296, 297, Liberty 14, 20, 47, 89 327, 482 Limits on Judges’ Consultations 2011 Judicial independence, duty to 466, 479 uphold 403 Lisbon Treaty 100, 104, 105, 106, 477 Judicial independence criteria 85, 322 Lord Chancellor 16, 18, 198, 296, Judicial independence in China 419–441 402–407 Judicial independence in the Louisiana 375, 383 New Era 430–431 Lucy, William 373 Judicial independence 14, 301, 302, 314, 316, 317, 322, 364, 387, 394, 411, 412, 419, 420, Massey Coal Company 382 425, 445, 465, 467, 470, 472, 473, 474, 475, Mediation 266, 390, 391, 437, 438 480, 481, 483, 487 (Appendix I), 512 Merit 396, 402, 404, 405, 409 (Appendix II) Merits stage 306 Judicial Independence: The Contemporary mfn clause 309 Debate xxxiv Minnesota 375, 376, 378, Judicial intervention in the law-making 380, 383 process 233, 234, 235 Missouri 375, 382 Judicial issues in South Africa 48, 49, 50 Missouri Plan 374 Judicial power 185, 188, 203, 213, 233, 236, Model Code of Judicial Conduct (2011) 267, 412 292, 327, 382, 384 Judicial precedent 220, 223, 224, 229, 230, Montana 375, 384 231, 232 Montesquieu’s Separation Judicial Restraint 181 of Powers 18 Judicial review 16, 17, 26, 181, 182, 188, 198 Montreal Declaration 465, 466, 467, Judicial review in litigation 59, 60, 61 469, 470 Judicial Role in Statutory Mt. Scopus International Standards of Interpretation 196 Judicial Independence 20, 21, Judicial salaries and bribery 322 68, 254, 275, 466, 488 (Appendix I ) Judicial Sanctions 69 Judicial Selection Commission 396, 399, National Rapporteurs 468, 469, 517 401, 402, 404 Natural Justice and Fairness 144 Judicial Service Commission 48, 49, 50 Nemo judex in propria causa 145, 227 Judicial system reform 431 Nevada 375 Jurisdictional stage 306 New Delhi Code of Minimum Standards of Jurisprudence of European Courts 84, 85 Judicial Independence 1982 465, 466, 467, 469, 512 (Appendix II) Kramer, Larry 378, 379 New York 375, 379, 382 New York Convention 307, 308, Lavendis, John 383 313, 316 Law professors as practicing lawyers Nobel Peace Prize 100 218, 219 Normative safeguards 23, 24, 25 Lay membership, judicial selection North Carolina 375, 379, 385 by 410 North Dakota 375, 379
O’Donnell, Terrence 383 Relationship adjustments between ruling Objective circumstances to conclude on the parties 424, 425 partiality 224, 225 Relationship between the Highest Courts in Ohio 375, 383 Austria, the 453 Online dispute resolution 478, 479 Relations Between Top National Courts Online Judicial Practices 69 and International and Supranational Online Justice or Online Dispute Resolution Courts 2011 474 (odr) 482 Relationship between Truth Commissions Origin of Judicial Review 182 and the Inter-American Court of Human Rights 125 Palmer, Vernon Valentine 383 Religious arbital courts 95, 96 Parliamentary attempts to restrict courts’ Religious exemptions 90, 93, 94, 97 jurisdiction 241 Religious Freedom Restoration Act 93 Parliamentary privilege 204, 213, 246 Repayment agreement 311, 312 Parliamentary restructuring of Research Projects and Reports on Judicial courts 239, 247, 248, 249, 250 Independence 1984–2005 465, 466 Partition of powers 220 Res judicata 356, 440, 460, 462, 463 Pennsylvania 375, 379 Retention money 303, 304 Polish legal system 217, 218 Right to the Truth in Case Law 119 Political question 175, 195, 201 Role of the law professor 217, 218, Practical experience of the 219, 220 professors 218, 219 Role of the practicing lawyer 217, 219, 220 Prima facie evidence 306 Role of the University in Continental legal Principles of Judicial Ethics 293 tradition 218 Prisoners’ voting rights 399, 403, 407 Rule of law xxxiv, 182–190, 233, 318, 319 Problems of religious autonomy 91, 92, Russian civil procedure 391, 393 93, 94, 96, 97 Procedural guarantees of Salini test 303, 309 independence 223 Scope of judicial review 26, 27, 181 Procedural legislation of the Russian Security decisions 26, 27, 29 Federation 224, 227, 228 Self-governance of the Judiciary 40–43 Profession of the professors 218 Separation of Powers 10, 18, 21, 24, 157, Proposal for reform 431, 432, 433, 434, 435 182–187, 189, 195, 201–205, 450 Protecting the integrity of state Setting aside of an Award 303, 308 courts 238, 239, 240, 241 Settlement agreement 311, 312 Public law appeal 364 Seventh International Congress Public procurement sector 440 of Procedural Law 5, 466, 470 Public prosecutor 364, 366, 368 Sexual discrimination 208, 270 Sharman, Jeffrey M. 373 Quest of Justice 69 Silver, Andrew 381, 382, 385 Skaggs, Adam 381, 382, 384, 385 Rationemateriae test 309 South African President Zuma 35, 53, Recognition of a commercial arbitral 54, 55 award 308–314 South Carolina 374 Recusal 31, 280, 384–388 Special Court for Sierra Leone 336, 337 Recusal of judges of the highest courts in Special judicial procedure 231 Belgium 138 State Supreme Court (us) 379, 381, 384 Recuse a judge from a case 32, 61, 138, Streit, Michael 384 139, 140, 223, 224, 226, 280–291 Supervision of courts in China 424, 425
Supervisory jurisdiction 202, 243, 244, uk Supreme Court 23, 46, 293, 362, 315, 316 404, 476 Supranational courts 12, 122, 329, 465, Umbrella clause 313 365, 474, 475, 476, 477 United Kingdom 26, 28, 44, 80, 99, 244, Supremacy of Parliament 203, 204, 205 284, 287, 404, 467, 479 Supreme Court of the us 24, 377, 378, United States 373, 374 379, 380, 424 United States challenges 33 Swiss Federal Court 12, 363, 364, Utah 375, 382 369, 459 Values, legal xxxv, 21, 23, 40, 214, 273, 302, Tensions between branches of 374, 420 government 26, 30 Values social xxxv, 94, 100, 149, 153, 196, Ternus, Marsha 384 302, 374, 407, 472 Terrorism and judicial review 26, 27, 28 Virginia 110, 111, 374 Texas 22, 293, 375, 384 Texas code of judicial conduct 22, 293 Webster, Paul 386 Threat to liberal society 94, 95, 96 Wersal, George 376 Transparency International 319 West Virginia 375, 382, 385 Tribal courts 90 Wiggins, Davis 384 Twelfth Congress of Comparative Wisconsin 375, 385 Law 466