Constitutional Guarantees of the Independence of the Judiciary · 1 Constitutional Guarantees of the Independence of the Judiciary* John Bridge Readers are reminded that this work

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Constitutional Guarantees of the Independence of the Judiciary*

John Bridge

Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use.

1. Introduction

It is a truth, universally acknowledged, that judicial independence is one of the principal building blocks of the rule of law. It is also commonly agreed that there are three characteristics of a truly independent judiciary: “First, it is impartial. Judicial decisions are not infl uenced by a judge’s personal interest in the outcome of a case … . Second, judicial decisions, once rendered are respected … . [T]hird … that the judiciary is free from interference. Parties to a case, or others with an interest in its outcome, cannot infl uence the judge’s decision.”1 This theme is consistently taken up by international instruments safeguarding fundamental rights. Thus the Universal Declaration on Human Rights of 1948, the European Convention on Human Rights of 1950 and the International Covenant on Civil and Political Rights of 1966 all declare that everyone, in the determination of his civil rights and obligations and of any criminal charge against him, is entitled to a fair and public hearing by an independent and impartial tribunal established by law.2 In response to these injunctions, the concept of “an independent and impartial tribunal” has been given further defi nition by other international instruments. In 1985 the UN General Assembly endorsed a statement of the “Basic Principles

* Session IVB1. Les garanties constitutionnelles de l‘indépendence de l‘autorité judiciaire. National reports received from: Belgium, J.-F. van Drooghenbroeck & S. van Drooghenbroeck; Denmark, J. Christoffersen; Germany, A. Seibert-Fohr; Greece, N. K. Klamaris; Hungary, Z. Fleck; India, D. Annoussamy; Japan, H. Yamamoto; The Netherlands, R. de Lange & P. A. M. Mevis; Serbia and Montenegro, D. Coric; South Africa, K. Lehmann, Spain, R. Garcimartin Montero; UK, A. Olowofoyeku; US, L. Claus.1 The World Bank Group – Legal Institutions of the Market Economy. Judicial Independence: What It Is, How It Can Be Measured, Why It Occurs. http://www.worldbank.org/publicsector/legal/judicialindependence.htm2001.2 See Articles 10, 6 and 14 respectively.

Electronic Journal of Comparative Law, vol. 11.3 (December 2007), http://www.ejcl.org

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on the Independence of the Judiciary”.3 After acknowledging an obligation on governmental and other institutions to respect and observe the independence of the judiciary,4 it then proceeds to identify the content of that independence in terms that include the impartiality of judgment and the absence of improper infl uences of any kind, the exclusive authority of the judiciary over its competence and the absence of any inappropriate or unwarranted interference in the judicial process.5 A practical perspective on these notions, from the standpoint of the judges themselves, is provided by the Bangalore Principles of Judicial Conduct.6 This identifi es the values of independence, impartiality, integrity, propriety, equality and competence and diligence, expresses each as a principle and gives detailed guidance on how judges should apply the principles in practice.7 The themes of these statements of principle are appropriately placed in a wider, governmental context by the Commonwealth (Latimer House) Principles on the Three Branches of Government.8 That emphasises the importance of the three branches of government reinforcing one another while each plays its own distinctive role.9 Against that background, the Latimer House Principles state that “An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confi dence and dispensing justice. The function of the judiciary is to interpret and apply national constitutions and legislation, consistent with international human rights conventions and international law… .”10

While acceptance of these principles, particularly in mature democracies, might be thought to be if not unthinking at least a matter of routine, recent events have put that acceptance under considerable pressure. In the United Kingdom for example, of which it was said some forty years ago that “[p]robably on no constitutional question would there be greater unanimity throughout the country than upon the independence of the judiciary”,11 there have been clear and troubling indications of a disaffection on the part of the Government towards the judiciary. In the leading case,12 nine foreign nationals had been imprisoned under post-9/11 anti-terrorism legislation.13 None of them were the subject of a criminal charge and in none of their cases was a criminal trial in prospect. They challenged the legality of their detention. The essence of the UK Government’s response to that challenge was that since 3 http://www.unhchr.ch/html/menu3/b/h_comp50.htm.4 Article 1.5 Articles 2, 3 and 4.6 Drawn up in 2002, under UN auspices, by a group of Chief Justices (the Judicial Group on Strengthening Judicial Integrity) and based, after wide consultation, on 32 national and international codes of judicial ethics; see http://www.undoc.org/pdf/corruption/bangalore_e.pdf.7 Id. 8 Drawn up by the Law Ministers and endorsed by the Commonwealth Heads of Government Meeting, Abuja, Nigeria, 2003 and published by the Commonwealth Secretariat in April 2004.9 Id., Clauses I to III.10 Id., Clause IV.11 C. K. Allen, Law and Orders 4 (3rd ed., 1965).12 A (FC) and others (FC) v. Secretary of State for the Home Department [2004] UKHL 56.13 Anti-terrorism, Crime and Security Act 2001, Section 21.

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it was responsible for the safety of the British people, any judgement on such an issue was essentially a political judgement within the discretion of the relevant Government minister in the light of offi cial advice. In other words, even where fundamental rights were in issue, such questions were not a matter for the courts. In powerful and unanimous judgments, the House of Lords rejected that argument and declared that the detentions were illegal.14 In addition to expounding the reasons for that conclusion, the judges also emphasized the primacy of the courts as arbiters of fundamental rights. In the leading judgment, Lord Bingham rejected the Government’s argument in favour of the courts deferring to the political authorities in matters of national security and observed:

I do not … accept the distinction which [has been drawn] between democratic institutions and the courts. It is of course true that the judges of this country are not elected and are not answerable to Parliament. It is also of course true … that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The [Government] is fully entitled to insist on the proper limits of judicial authority, but [it] is wrong to stigmatise judicial decision-making as in some way undemocratic.15

The Government’s response to this, particularly after the terrorist attacks in London in July 2005, was outspokenly critical of the judiciary. The approach of British judges combined with Britain’s international obligations to uphold fundamental rights were seen as legal obstacles to necessary anti-terrorist measures, legal obstacles which the Government was prepared to remove.16 These unprecedented events put into high relief the age-old confl ict between a democratically elected government’s political right and duty to adopt and implement policy and the judiciary’s exclusive right to interpret and apply laws designed to put that policy into practice. As the Chief Justice of Australia has recently observed:

The political dimensions of the law and order debate provide a good example of the dangers of external infl uence on decision-making. The administration of … justice needs to refl ect community values, but those values are expressed through the law, including legislation, not through political pressure on judges … . It is not the role of judges to implement government policy, except to the extent that such policy is refl ected in the law. It is the role of judges to apply the law.17

It is against that background that this General Report will consider and assess constitutional guarantees of the independence of the judiciary.

14 Supra note 13.15 Id., para. 42.16 See P. Sands, Lawless World (Rev. ed., 2006), at 275-276. The seriousness of this dispute is refl ected in newspaper headlines at the time: GUILTY! Senior judges accuse politicians of seeking to subvert the rule of law …, The Independent, 11 August 2005, p. 1; We won’t heed Blair, say judges, The Times, 28 July 2005, p. 9; Courts told not to block terror suspects’ removal, The Times, 7 September 2005.17 M. Gleeson, Rights would be worthless if they could be overridden by government decree, The Times Law Supplement, 13 September 2005, p. 8-9.


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2. Scheme for National Reports

National Reporters have been requested to report with reference to their national constitutions on provisions designed to secure the independence of the judiciary. They have been asked, where appropriate, to take account not only of provisions of the text of the Constitution itself but also of other relevant national laws, judicial decisions and constitutional conventions.18

The Scheme drawn up for National Reports requires that they should address issues of judicial independence in relation to a) the appointment of judges, b) the position of judges while in offi ce and c) the dismissal of judges from offi ce. In respect of the fi rst of these, information was requested on the qualifi cations for judicial appointment and the criteria for assessing those qualifi cations, the identity and nature of the selecting body, and the selection and appointment process. In respect of the second, National Reporters were asked to deal with the term of offi ce of judges (judicial tenure), the scope of judges’ authority and powers, any political direction, control or interference in the exercise of the judicial function, and the fi nancial independence of judges. Finally, the grounds for dismissing judges, the identity and nature of the body authorised to dismiss judges, the capacity to initiate dismissal proceedings, the dismissal process and the decision to dismiss were to be addressed. This General Report is based on the thirteen National Reports submitted.19 It will broadly follow the Scheme outlined above.

3. General Survey

All the countries represented by the National Reports accept the principle of judicial independence. A majority of them have relevant constitutional provisions. In six, the Constitution contains an express reference to judicial independence. Thus, Article 151 of the Belgian Constitution “explicitement consacré le principe de l’indépendence des magistrats”;20 Article 97(1) of the German Grundgesetz states that “Judges shall be independent and subject only to the law”;21 Article 50 of the Constitution of Hungary provides that “Judges are independent and answer only to the law”;22 the Constitutional Charter of the State Unity of Serbia and Montenegro upholds the principle of “independence of judges in the course of their duty”;23 Section 165 of the South African Constitution declares that “judicial authority vests in the courts, which are independent and subject only to the Constitution and the

18 The latter being understood to mean political practices which do not have the force of law but are customarily regarded as binding.19 References to National Reports will be by country and page.20 Belgium, p. 3.21 Germany, p. 1.22 Hungary, p. 1.23 Serbia & Montenegro, p. 33.

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law”;24 and Article 117(1) of the Spanish Constitution states that “Justice derives from the people and is administered in the King’s name by Judges and Magistrates who make up the judiciary and who are independent … and subjected solely to the Rule of Law.”25 In three others, the approach of the Constitution is from the standpoint of the separation of powers: by allocating the judicial function to the courts their independence from the other branches of government is secured. This is to be found in Article 26(3) of the Greek Constitution in terms that “The judicial function shall be exercised by the courts of law …”,26 Article 76 of the Japanese Constitution which says that “l’autorité judiciare, dans son ensemble, est dévolue à une Cour Suprême ainsi qu’à tous tribunaux de moindre instance créés par la loi”,27 and the United States where Article III, section 1 of the Constitution states that “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”28 Lastly, Section 64 of the Danish Constitution, while neither mentioning judicial independence nor the separation of powers expressis verbis, declares that “In the performance of their duties the judges shall be governed by the law.”29 That provision, coupled with legislative guarantees and “an age-old tradition of non-intervention” is said to provide “constitutional protection.”30 Lastly, in India while the status of judges is still based on British hierarchical principles established during the colonial period, there are also “quelques modifi cations apportés par la Constitution.”31

Of the remaining two countries, in the Netherlands, although the independence of the judiciary is regarded as an essential principle it is not explicitly mentioned in the Constitution: “The guarantees for the independence of the judiciary are to be found in statute law, in particular the Judiciary Organization Act … and the Judicial Offi cers (Legal Status) Act … .”32 In the United Kingdom judicial independence has been guaranteed by long tradition and statutory provisions regarding the security of tenure of judges, particularly the Act of Settlement 1701.33 Very recently, as part of a reorganisation of the courts system, Section 3(1) of the Constitutional Reform Act 2005 provides that “The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.”34

24 South Africa, p. 3.25 Spain, p. 1.26 Greece, p. 1.27 Japan, p. 1.28 USA, p. 1.29 Denmark, p. 2.30 Id. 31 India, p. 2.32 Netherlands, p. 1.33 UK, pp. 2-3.34 Id., p. 13.


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Eight of the countries reporting are party to the European Convention on Human Rights, Article 6 of which, as we have seen, imposes an obligation to determine legal issues before an independent and impartial tribunal. In those countries that obligation reinforces domestic provisions regarding the independence of the judiciary and some National Reports draw specifi c attention to this. Thus, in Belgium, Article 6 is said to have “profondément infl uencé la manière dont la justice est organisé et exercée … .”35 In Greece, the right to judicial protection is founded, in part, on Article 6.36 The guarantees contained in Netherlands’ law “are also partly based on European norms.”37 In the United Kingdom, the impetus for constitutional change has been strengthened by the incorporation of the European Convention into domestic laws: “[p]ivotal to this was the role played by Art[icle] 6.”38

In addition to constitutional provisions underwriting judicial independence, it is common for those provisions to be confi rmed and elaborated in statutory provisions dealing with the status, authority and working arrangements of the judiciary.39

4. Appointment of the Judiciary

4.1. Professional Status

The National Reports reveal that the countries represented fall into three groups: those in which the judiciary is a career; those in which career judges are combined with judges appointed from the legal profession; and those in which the judges are appointed from the legal profession. The fi rst group consists of Denmark, Germany, Greece, Hungary and Japan.40 The typical practice here is to recruit to the judiciary exclusively from the ranks of university graduates in law. The second group consists of Belgium, the Netherlands, Serbia and Montenegro and Spain. Each of these combines the appointment of career judges with the appointment of judges with alternative backgrounds, usually a period of legal practice. Thus, Belgian law provides “une double voie d’accès à la magistrature … La première voie, ouverte aux jeune juristes … La seconde voie d’accès ouverte pour sa part à des juristes plus chevronnés … .”41 Somewhat similarly, in Spain, while the principal route to the judiciary follows graduation in law, a minority of judges are drawn from jurists “of acknowledged competence” with an

35 Belgium, p. 2.36 Greece, p. 3.37 Netherlands, p. 1.38 UK, p. 4. The other reporting countries party to the European Convention are Denmark, Germany, Hungary and Spain.39 See Belgium, pp. 9 & 21; Denmark, p. 2; Germany, p. 1; Greece, p. 4; Hungary, pp. 1-2; Japan, p. 5; Serbia & Montenegro, p. 9; South Africa, p. 4; Spain, p. 1.40 See pp. 2, 5, 6, 2 and 3 respectively.41 Belgium, pp. 21-22.

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appropriate period of professional practice.42 In the Netherlands, in addition to professional judges, there is a category of deputy judge. These are lawyers “with relevant professional experience as such – whose main occupation is outside the judiciary, but who [take] part in the administration of justice on an incidental basis … .”43 As variation on that theme, Serbia and Montenegro has, besides professional judges, lay-judges who are “citizens of different professions” who cannot be “lawyer[s], or anyone providing legal services for compensation” but who enjoy “all rights and responsibilities of a professional judge.”44 In the fi nal group (India, South Africa and the United Kingdom) judges are appointed from the ranks of the practising legal profession.45

4.2. Qualifi cations for Appointment

The general pattern emerging from the Reports of those countries that have a professional judiciary is that entry into the profession requires a basic legal education followed by a period of specifi c training involving a probationary status. The most thoroughgoing of this approach is Hungary where “law graduates have an opportunity through an open application process to be appointed to the bench for a three-year apprenticeship period … as junior clerks.”46 During this period, with the help of sitting judges, they “get acquainted with every fi eld of judicial work [including] making draft sentences, [i.e. judgments].”47 Their work during this educational stage is evaluated regularly and culminates in state and vocational examinations. The latter includes an evaluation of capabilities, character and aptitude with medical and psychiatric examinations.48 An open competition among law graduates for judicial appointment is also the case in Belgium, Denmark, Japan, Serbia and Montenegro and Spain.49 The competitive examination in the latter is particularly rigorous and covers “a total of 360 subjects distributed into seven groups of materials.”50 In all of the above cases, success in the competition is followed by a programme of appropriate training. In Belgium that period of training is not exclusive to would-be judges but is also followed by would-be public prosecutors51 and in the case of Japan would-be advocates as well.52 In a departure from this practice, the Japanese Supreme Court is composed of one-third professional judges, the other

42 Spain, pp. 2, 4.43 Netherlands, p. 7.44 Serbia & Montnegro, pp. 16, 21-22.45 See India, p. 2; South Africa, pp. 10-11; UK, pp. 5-6. It is also assumed that the United States falls broadly within this group.46 Hungary, p. 2.47 Id. 48 Id. 49 See pp. 22, 2, 6, 5, 11 and 2 respectively.50 Spain, p. 3.51 Belgium, p. 22. 52 Japan, p. 6.


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members being drawn from the ranks of practising lawyers, prosecutors and administrators plus one professor of law.53 In Germany, citizenship is a specifi c requirement,54 although, at least de facto, it must be a common requirement. In the remaining group of common law countries the essential qualifi cation is a prescribed period of professional practice as a lawyer. In India the recruitment of “juges du premier degré” is from candidates who possess “une certaine expérience au barreau.”55 At the higher levels of the Indian judiciary, judges of the superior courts are chosen from the ranks of district judges and the bar while judges of the Supreme Court are chosen from the presidents and senior judges of the superior courts.56 In post-apartheid South Africa, traditional selection of judges from the ranks of senior counsel at the bar, which tended to produce an all-white judiciary, has been modifi ed to extend appointment also to the ranks of practising attorneys, legal academics and magistrates.57 Any person appointed to judicial offi ce must, in the words of the South African Constitution, be “an appropriately qualifi ed man or woman who is a fi t and proper person to be appointed”, with the additional requirement that appointees to the Constitutional Court must be South African citizens.58 In the United Kingdom, the historical source of this method of appointing judges, traditional selection of English High Court Judges from the ranks of the senior barristers of at least 10 years’ standing59 has been extended to include Circuit Judges and those solicitors who have a right of audience in the High Court.60 The product of selection from these categories has been regularly criticised as producing an unrepresentative, largely white, male, middle-aged, and exclusively educated judiciary.61 While “it is not generally thought that this compromises judicial independence”,62 under recent legislative changes judges will be appointed solely on merit, from qualifi ed persons of good character, with regard to the need to encourage diversity.63

53 Id., p. 7.54 Germany, p. 5.55 India, p. 2.56 Id. 57 South Africa, p. 11. While this has produced a majority of black, male judges, dissatisfaction remains with the racial and gender composition of the bench, id.58 Id., p. 10.59 For other categories of UK judges, see UK, p. 5-6.60 Id., p. 5. Circuit Judges are judges with less than full jurisdiction.61 Id., p. 7.62 Id. 63 Id., p. 15 and Constitutional Reform Act, 2005, sections 63 and 64. Marked increases in the appointment of female and ethnic minority judges have been reported recently; see The Times Law Supplement, 21 February 2006, p. 3.

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4.3. Power of Appointment and Procedure

In six of the reporting countries, special selection and appointment bodies play a key role in fi lling judicial vacancies Thus in Belgium while, following long practice, the nomination of judges remains a Royal prerogative, the actual choice of nominees involves intervention by the Conseil supérieur de la Justice. The Conseil is made up of two groups: “un collège francophone et un collège néerlandophone”, refl ecting the linguistic diversity of the country. Each “collège” is made up of an equal number of judges appointed by their peers and of non-judges appointed by a two-thirds vote of the Senate. The non-judges include lawyers of 10 years’ standing, university professors and persons “porteuses d’au moins un diplôme d’une école supérieure … et possédant une expérience professionnelle utile pour la mission du Conseil supérieur d’au moins dix années dans la domaine juridique, administrative, social ou scientifi que.”64 The role of this aptly termed unique institution is to evaluate the qualifi cations, merits and aptitudes of candidates for particular vacant judicial posts and to nominate a single candidate to the King for appointment.65 If that candidate is not accepted, the matter is referred back to the Conseil which has a range of options including accepting the Royal rejection and selecting a new candidate, re-nominating the rejected candidate, or accepting the Royal rejection and postponing the nomination of a new candidate. The latter would prompt a fresh appeal for candidates.66 Recourse to the Conseil d’État is available to challenge Royal decisions. In a ruling in 2002, the Conseil d’État observed of these provisions that “au delà de la lettre même des textes, l’esprit de ceux-ci opère pratiquement un transfert de facto de la responsabilité dans la nomination des magistrats … En réalité, elle appartient pratiquement in toto au Conseil supérieur de la justice.”67

Less elaborate versions of the same arrangements are to be found elsewhere. In Denmark, an Appointment of Judges Council, made up of judicial, lawyer and public representatives, interviews applicants and makes one nomination per vacancy for appointment by the Minister of Justice.68 In Serbia judges are appointed by the National Assembly on the proposition of the High Judicial Council.69 The core membership of that body is the President of the Supreme Court, the Chief Prosecutor, the Minister of Justice, a representative of the Bar and a representative of the National Assembly. When appointing judges, that membership is joined by six judges.70 The High Judicial Council, prior to making a nomination, will

64 Belgium, pp. 23-24.65 Id., p 26.66 Id., p 27.67 Id., p 28.68 Denmark, pp. 3-4.69 Serbia & Montenegro, p 11.70 Id., pp. 12-14. The High Judicial Council also nominates prosecutors and when carrying out that role the core membership is joined by two prosecutors.


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inform itself about the professional background of candidates and will seek the opinion of those with whom they have worked.71 This procedure is seen to have both positive and negative aspects: while it contributes to professionalism in the judiciary based on an impartial review of candidates, it is also seen as somewhat inward looking and lacking any form of control.72 In Spain, there is a Selection Committee made up of a member and a member of staff of the General Council of the Judiciary, a Magistrate, a Prosecutor, the Director of the Judicial School, the Director of the Centre of Legal Studies of the Administration of Justice and a representative of the Ministry of Justice.73 In addition to overseeing the competitive examination for eligibility for the judiciary, it also establishes “the distribution of positions for the judicial … career” and appoints the tribunals which evaluate the results of the competitive examination. These tribunals are composed of a Magistrate or Prosecutor from one of the superior courts, as Chairman, with two Magistrates, two Prosecutors, one Professor of Law, one State lawyer and a lawyer of at least 10 years’ standing. In South Africa, a comparable body is the Judicial Services Commission, which comprises three judges, four practising lawyers, one legal academic, ten Parliamentary nominees and four Presidential nominees.74 The Judicial Services Commission acts in part in a consultative capacity and in part in a de facto appointing role. In the former, it must be consulted by the President before he exercises his authority to appoint the presiding judges of the Constitutional Court and of the Supreme Court of Appeal. In these cases, the President has a measure of autonomy. But, with other judicial appointments his autonomy is either much restricted or non-existent. His appointment of the other judges of the Constitutional Court must be made from a list drawn up by the Judicial Services Commission and all other appointments at the High Court level must be made on the advice of the Judicial Services Commission.75 Candidates for judicial offi ce are interviewed in public by the Commission.76 The role of the President and the partly political membership of the Commission has been questioned in the South African Constitutional Court. It was the Court’s view that participation by the executive and legislative branches in judicial appointments was unproblematic provided they enjoy functional and institutional independence.77 It concluded that “the appointment process … is consistent with the need for, and promise of, judicial independence.”78

71 Id., p. 11. A Judicial Council in Montenegro is composed and works in the same way; id., p. 15.72 Id., p. 14. 73 Spain, pp. 2-3.74 South Africa, pp. 5-6.75 Id., pp. 4-6.76 Id., p. 11.77 Id., p. 6.78 Id., p. 8. For a “less sanguine” opinion, based on political pressure exerted on the Judicial Services Commission, see id., pp. 6-7.

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Finally in this category, Greece has Supreme Judicial Councils which have “an exclusive competence to appoint … judicial functionaries.”79 There are separate Supreme Judicial Councils for Civil and Criminal Justice, Administrative Justice and the Court of Auditors each consisting of the presiding judge of the respective court as Chairman with other judges appointed by lot.80 The authority of these bodies over judicial appointments is such that the “Executive Function/Power has no procedural or substantive, direct or indirect competence, involvement or leverage” over these matters.81

Participation by the political branches of government is a feature of judicial appointments in Germany, Japan, Hungary and the United States, although no overall pattern emerges from the Reports. In Germany, “judges are appointed by the head of state or competent government agency”, although the “selection and appointment process varies from court to court.”82 The judges of the Federal Constitutional Court are elected by a two-thirds majority half by the Bundestag and half by the Bundesrat. This has led to a practice where the political parties represented in the federal parliament nominate their candidates in turn with the result that an equilibrium of political ideologies is represented at the court.83 The judges of the other federal courts (Court of Justice; Administrative, Finance, Labour, and Social Courts) are chosen jointly by the competent Federal Minister and a committee made up of the competent Land Ministers and an equal number of members elected by the Bundestag.84 In Japan, there are differences between appointment to the Supreme Court and appointment to other courts. In respect of the former, “c’est le Cabinet qui dispose du plein pouvoir en dehors de toute intervention de la part des autres organes.”85 Under the terms of the Constitution, “l’Empereur nomme le Président de la Cour Suprême désigné par le Cabinet. S’agissant d’autres members … c’est le Cabinet lui-même qui les nomme … avec la sanction de l’Empereur.”86 These nominations must be confi rmed at ten-yearly intervals at the general parliamentary elections.87 Other judges are selected by the Supreme Court from among those who have completed the professional training and are appointed for 10 year renewable terms.88 Somewhat similar arrangements are found in Hungary. There, the President of the Supreme Court is elected by a two-thirds majority of the Parliament upon the recommendation of the President of the Republic.89 The presiding judges of regional and county courts are appointed by the National

79 Greece, p. 6.80 Id.81 Id., p. 7.82 Germany, p. 6.83 Id. This mode of selection has not been invalidated by the Federal Constitutional Court.84 Id. 85 Japan, p. 6.86 Id., pp. 6-7.87 Id., pp. 5, 7.88 Id., p. 6.89 Hungary, p. 2.


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Council of Justice, a body with a majority of judicial members.90 While other judges are selected by court presidents on the basis of personal interviews, the power of appointment is vested in the President of the Republic. He appoints judges for an initial three-year probationary period. An indefi nite appointment is dependent on an evaluation of a judge’s probation, a discretionary decision which rests with the relevant court president.91

In the United States, the Constitution both empowers and obliges the President to “nominate, and by and with the Advice and Consent of the Senate, [to] appoint … Judges of the Supreme Court.”92 This power of appointment and procedure also applies to other federal judges.93 These arrangements are part of “the Constitution’s scheme of checks and balances, the direct and regular means through which the President and Congress have sought to infl uence the trajectory of judicial decision-making.”94 The President’s freedom of action in making judicial appointments is further constrained by “the Senate’s reluctance to require itself to consent when merely a simple majority of senators favor doing so” and by statutory limits on the size of federal courts.95

In the remaining two countries, India and the United Kingdom, judges are appointed by the executive but are effectively selected by the judiciary themselves, although the situation in the United Kingdom has been modifi ed very recently. The National Report from India states: “Les nominations sont faites par le government, mais les recommendations sont en général faites par le corps judiciaire.”96 This process is followed at all levels of judicial appointment. In the United Kingdom, judges are appointed by the Queen on the advice of either the Prime Minister or the Lord Chancellor, depending on the court in question.97 Although this process has generally been regarded as apolitical in nature, it provided scope for political patronage, a concern heightened by the “secret soundings” undertaken in the past to identify potential candidates for judicial offi ce.98 In order to mitigate these risks and introduce greater transparency into the process, the Constitutional Reform Act 2005 has created a new Judicial Appointments Commission. This fi fteen member body has a lay chairman with at least fi ve other lay members, fi ve judicial members, two professional members, one lay justice and one other holder of judicial offi ce. Candidates for appointment to the High Court must now apply for their posts and complete a ‘self-assessment’ form and there will be a more

90 Id., pp. 2-3.91 Id.92 US Constitution, Article II(2)(2).93 US, p. 31.94 Id. 95 Id. 96 India, p. 2.97 UK, pp. 5-6.98 Id., p. 7.

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structured system of consulting the judiciary and seeking references.99 It is the Commission’s task to select judges, from among those who have applied, and recommend them to the Lord Chancellor for appointment by the Queen. The Commission acts through four-member panels made up of two judges and two lay members, including the Chairman or his nominee. The Lord Chancellor may, by reasoned written statement, reject a nominee or ask for a reconsideration. Where that further rejection/reconsideration stage has taken place, the Lord Chancellor is obliged to accept the eventual selection.100 Variations on this basic process have been made for the appointment of presiding judges, members of the Court of Appeal and the new Supreme Court, the latter replacing the present House of Lords as the fi nal court of appeal.101

4.4. Further Training and Evaluation

It has already been noted that some of the reporting countries include probationary or apprenticeship stages in appointment to the bench. In addition, some countries provide post-appointment programmes of training and evaluation. In Denmark, candidates recommended by the Appointment of Judges Council for appointment to the Supreme Court are assessed by participation in four ‘test’ cases. This is regarded as the fi nal bulwark against unsuitable candidates.102 In Hungary, the work of judges is evaluated fi rst before indefi nite appointment and then at six and twelve year intervals following that. In addition, a judge may ask for an extraordinary evaluation or one may be required if a judge’s abilities are in question. Evaluations are conducted by the President of the Regional, Appeal or Supreme Court or their designee. They must be based on at least fi fty cases of the judge from both substantive and procedural perspectives so as to evaluate the judge’s skills, disposition, working capacity and quality. The scale of assessment is outstanding, suitable and non-suitable, the latter being open to challenge in court.103 The introduction of training programmes for judges is under active consideration in Serbia and in South Africa.104

99 See F. Gibb, Taps on the shoulder make way for job applications, The Times Law Supplement, 4 April 2006, p. 3.100 UK, pp. 15-16.101 Id., p. 16. The new Supreme Court will be the present House of Lords in its judicial role in all but name. Its establishment awaits the provision of an acceptable building to house it.102 Denmark, p. 3. It is believed that only one candidate has failed this test: id. 103 Hungary, p. 4.104 See pp. 31-32 and 14-15 respectively.


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5. Independence of Judges in Offi ce

5.1. General Propositions

A common theme, in the words of the German Report, is that judicial independence is “an institutional safeguard for the judiciary as such, not … a right or a privilege for the individual judge.”105 That Report then identifi es the three elements of judicial independence guaranteed by the Grundgesetz. The fi rst, substantive independence, requires that the judicial decision-making process “is only bound by law, not by any determination or other means of infl uence by other parties.”106 Here “other parties” includes the legislature in respect of individual cases, the executive and other judges apart from the appellate process.107 The second, structural independence, requires a structural separation from the other branches of government.108 The third, personal independence, supplements substantive independence by protecting the judge as a person from external interventions, including his working and living conditions.109 Types or aspects of judicial independence are also recognised in the Netherlands: “functional independence … means that the judge should at all times feel that he can freely give his judgments”, whereas “personal independence … concerns the guarantees that are built into the legal position of judicial offi cers.”110

In other countries, functional independence is safeguarded by establishing an exclusive relationship between the judiciary and the law. In Greece, the key to this is based on the separation of powers so that the judicial function is exercised by the courts on the basis of a constitutional provision which is not open to amendment.111 In the United Kingdom, the recent changes in the law relating to the judiciary will reinforce the protection of the judiciary from governmental interference.112 In Japan, while the Constitution contains no express provision upholding judicial autonomy it does provide that “tous les juges se prononcent librement en leur âme et conscience et sont tenus d’observer exclusivement la constitution et les lois.”113 The Constitution of South Africa declares that the judges are “subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”114 To similar effect, “the primary responsibility” of judges in Hungary “is the application of the

105 Germany, p. 2.106 Id.107 Id., pp. 2-4.108 Id., p. 4.109 Id., pp. 4-5.110 Netherlands, p. 5.111 Greece, pp. 1-2.112 UK, p. 13.113 Japan, p. 8.114 South Africa, p. 3.

15


law in line with their conviction. They may not be infl uenced or instructed in making their judgments”115 and in Denmark “[t]he scope of judges’ authority and powers is not limited, except by the applicable law and the internal judicial hierarchy of the legal system.”116 Another factor which can underwrite judicial independence is the authority over the establishment of courts. Thus in Belgium “nul tribunal, nulle juridiction contentieuse ne peut être établi qu’en vertu d’une loi.”117 The Belgian Report comments on this provision of the Constitution in terms that it supplies “diverses garanties non négligeables qui, de manière plus au moins directe, concurrent à l’indépendence du Pouvoir judiciare.”118 Limits on the exercise of the power to create courts is also an additional safeguard in the United States. Congress is empowered “[t]o constitute Tribunals inferior to the supreme Court” which, together with the supreme Court, are vested with “[t]he judicial Power of the United States.”119 But that Congressional power may only be exercised by “Laws which shall be necessary and proper for carrying into Execution” that power.120 As the United States’ Report comments, “[a] regulation abolishing a court just to be rid of some of its life-tenured members, evidenced by the composition of the abolished court’s substitute, is not [a] ‘necessary and proper’ ” exercise of that power.121

In two remaining cases, Spain and Serbia, judicial independence is underwritten by detailed, codifi ed provisions. In the former, the Organic Law of the Judiciary devotes an entire Title to judicial independence, addressing such issues as tenure, prohibitions, immunity and economic independence.122 In Serbia, the Code of Judicial Ethics of the Association of Judges of Serbia is made up of “ten canons-rules, which are titled: be independent, just, professional, free, kind, fi tting, incorruptible, dedicated, apolitical, faithful to the Code.”123

5.2. Tenure and Retirement

The National Reports reveal a range of approaches to these issues, generally, but not always, guaranteeing security of tenure in offi ce subject to a compulsory retirement age. The most straightforward instances of this approach are Germany, Greece, the Netherlands and the United Kingdom.124 In these cases, judges enjoy life-tenure subject to retirement. The practical signifi cance of this, as the Greek Report puts it, is that “[t]he privilege of

115 Hungary, p. 1.116 Denmark, p. 4, emphasis in the original.117 Belgium, p. 15.118 Id., p. 16.119 US Constitution, Articles I(8)(9) and III(1).120 Id., Article I(8)(18).121 US, p. 30.122 Spain, p. 5.123 Serbia & Montenegro, p. 10.124 See pp. 5, 6, 7 and 7 respectively.


16

appointment for life of judicial functionaries … does not … mean that [they] remain in their positions until their demise but … until they reach the age of retirement.”125 The German position is however qualifi ed in the case of the Federal Constitutional Court where judges are appointed for a twelve-year non-renewable term. The retirement ages of these countries are not uniform: in Germany it is 65 in general and 68 for the Constitutional Court; in Greece it is 67; in the Netherlands it is 70; and in the United Kingdom it is 70 which may be extended to a maximum of 75.126

Two other countries, Belgium and the United States, also have life tenure. In the former, while appointment for life subject to retirement at an age prescribed by the law applies generally,127 it is compromised to an extent by “le système des mandats” introduced in 1998.128 This applies to certain judicial functions, notably the presidents of courts and tribunals, whose appointments are not permanent but are “mandated” for fi xed terms that are not immediately renewable in the same jurisdiction.129 The rationale for this innovation derives, in essence, from a desire to ensure that the judges in question function in an optimal manner. “On a souvent constaté dans le passé que les bons juges … ne devenaient pas nécessairement de bons chefs de corps parce qu’ils n’avaient notamment pas les talents d’organisateur requis ni la connaissance nécessaire pour traiter les dysfonctionnements.”130 This aim to introduce an element of fl exibility in the interests of effi ciency is seen by some as an implied amendment of the constitutional provision regarding life tenure, a provision which is not susceptible to express amendment.131 In the United States, life tenure appears to mean life tenure with no provision for mandatory retirement.132

Hungary, India, Japan and Spain all protect judicial tenure up to the retirement age, although not in the context of a notional life-tenure. After an initial three-year probationary period, Hungarian judges have permanent tenure with the option of retiring either at the general retirement age of 62 or, compulsorily, at 70. The retirement age in India is 62. In Japan, members of the Supreme Court retire at 70 and those of the lower courts at 65. The remaining two countries, Serbia and South Africa, have quite different arrangements. Serbian judges, after an initial appointment for a fi ve-year term, may subsequently “be re-elected on the basis of performance”, although there is doubt whether this applies to all judges and it has been subject to criticism by the judiciary.133 But while permanence of the judicial

125 Greece, p. 6.126 See pp. 7, 6, 9 and 8 respectively.127 Belgium, p. 31.128 Id., p. 29.129 Id.130 Id., pp. 29-30.131 Id., p. 30.132 US, p. 30.133 Hungary, pp. 11-12.

17


function is strongly supported by the Serbian Report, such permanence “cannot be conceived as a lifelong service. A judge’s mandate can be ended if the judge requests it, or if he/she fulfi ls conditions for retirement.”134 Judges in South Africa serve for what is effectively a fi xed term with appropriate provision being made for retirement. Thus, Judges of the Constitutional Court are appointed for non-renewable twelve-year terms or until their 70th birthday, whichever occurs fi rst. But, if such a judge having served twelve years has not served for a total of fi fteen years as a judge, or where at the age of 70 he has not served a full twelve-year term, then he must continue to serve until he has served fi fteen years or reaches 75, whichever comes fi rst. Judges of other South African courts retire on their 70th birthday, if they have already served for 10 years, if not, they retire on the day after they have completed ten-years service.135

5.3. Scope of Judicial Authority

Article 144 of the Belgian Constitution “confi e aux Cours et Tribunaux de l’ordre judiciaire un monopole absolu en ce qui concerne le contentieux relatif aux droits subjective civile.”136 While there is no equivalent, express provision relating to criminal law, “l’on a classiquement considéré que le contentieux pénal revenait en monopole aux Cours et Tribunaux de l’ordre judiciaire.”137 To the same effect, the Constitution and legal system of Spain establish “a series of mechanisms whose aim is to guarantee that the judicial body can exercise the jurisdictional function, only being subjected to the ‘rule of law’.”138 This exclusivity is found in other countries. In Greece, the judges are the sole masters of the law which empowers them to ignore unconstitutional laws and “to examine all laws – in the broadest sense, that is both laws in the strictest sense (i.e. statutes …), [as] well as presidential decrees, ministerial decisions, etc, – as regards their substantive conformity with the Constitution.”139 This ultimate authority over the law has been confi rmed in India in a case in which Parliament purported to expropriate property without compensation. When this was struck down by the Supreme Court on the basis of the Constitution’s guarantee of the right of property, attempts by Parliament to restrict that right and to give itself exclusive power over matters designed to redistribute wealth were annulled by the Court. It declared that such legislation was designed to abolish judicial control and as such it was contrary to the foundations of the Constitution.140

134 Id., p. 16.135 South Africa, p. 11.136 Belgium, p. 17.137 Id., p. 18.138 Spain, p. 5.139 Greece, pp. 9-10.140 India, pp. 2-3.


18

Similarly in Japan, “[l]a Cour Suprême est devenue le gardien de la loi fondamentale et le protecteur des droits fondamentaux de l’homme.”141 The same approach is found in the Serbian Report.142 In the United States, the Constitution, in sweeping terms, extends the judicial power “to all Cases, in Law and Equity” arising under the Constitution, Laws and Treaties, to “all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States;” and to controversies between citizens of the United States and between them and “foreign States, Citizens or Subjects”. The general appellate jurisdiction of the Supreme Court over these matters is,143 however, subject to “such Exceptions, and under such Regulations as the Congress shall make.”144 While these provisions can be largely taken at face value, the United States’ Report reveals differing opinions on the meaning and scope of the power of Congress to make exceptions to the Supreme Court’s appellate jurisdiction. The current orthodox view regards this as enabling Congress to deny to the Supreme Court ultimate jurisdiction over matters otherwise falling within the judicial power.145 This view is challenged by the United States National Report. It draws attention to the mandatory and imperative terms with which the Constitution both vests the judicial power and identifi es its subject matter146 and concludes that “[t]he Constitution invests one supreme Court with power to decide every matter that lies within the … categories listed in Article III.”147 As for the “exceptions power”, it argues that it is a device by which “Congress may stipulate that for some matters within the judicial Power, the supreme Court is to have not only the last word, but also the fi rst.”148 The United States’ Report concedes that this view has never been endorsed by the Supreme Court itself and that legal scholars have shied from it for reasons dating back to the original debates over the Constitution and the early case law of the Supreme Court.149 The Report concludes on this issue with these words: “Article III has become a constitutional conundrum. A comprehensible, albeit technical, text has been stewed into incoherence by its history.”150

While the above has focused on what judges are authorised to do, another aspect of their authority, which also relates to their independence, is what they are not authorised to

141 Japan, p. 6.142 Serbia & Montenegro, p. 9.143 Article III(2)(2) of the US Constitution gives the Supreme Court an original jurisdiction over cases affecting ambassadors, other public ministers and consuls and over those in which a State is a party.144 See Article III of the US Constitution and USA, pp. 1-2.145 US, p. 2.146 Id., pp. 3-8.147 Id., p. 8.148 Id., p. 3.149 Id., pp. 14-22.150 Id., p. 22.

19


do. In the United Kingdom, for example, full-time judges are disqualifi ed by statute from membership of the House of Commons: “the principle being that a person cannot ‘hold full-time judicial offi ce and be a practising politician’.”151 In addition, it is a constitutional convention “that judges must refrain from partisan politics and should not take sides in matters of political controversy.”152 This de-politicisation of the judiciary is a theme widely found in other reporting countries. Article 155 of the Belgian Constitution, reinforced by provisions of the Code judiciare, states that “Aucun juge ne peut accepter d’un gouvernement des functions salariées, à moins qu’il ne les exerce gratuitement et sauf les cas d’incompatibilité déterminés par la loi.”153 In Spain there are prohibitions on judges holding, inter alia, positions of popular election and paid jobs or professions and of membership of political parties or unions.154 Spanish law also safeguards judicial independence through identifying factors which require a judge to abstain in the interests of objectivity and impartiality. These include family relationship, friendship or enmity with the parties and involvement in previous stages of litigation.155 Likewise, in Germany the Federal Judges Act imposes a duty of political restraint on judges, requiring them to act both “in and outside their offi ce, including in political activities, in a manner which does not jeopardize their independence.”156

Another doctrine that helps to preserve judicial independence in both the Netherlands and the United Kingdom is that of sub judice. In the former, it is not laid down in the Constitution but “has of old been regarded as an important constitutional principle.” As such, “in practice it plays a large role in the relationship between government and parliament. The government does not usually answer parliamentary questions regarding matters on which a court still has to decide in fi nal instance.”157 A similar rule in the United Kingdom, subject to the discretion of the Speaker of the House of Commons, means that “a matter cannot be raised in Parliament if it is sub judice, just as the courts cannot inquire into proceedings in Parliament.”158

The scope of a judge’s authority, and therefore his independence, may also be constrained if he is legally liable for acts carried out in his judicial capacity. Under the laws of the United Kingdom, all judicial functionaries enjoy absolute immunity from civil and criminal liability in respect of their offi cial actions. This is regarded as “essential to the individual independence of judges.”159 A House of Lords’ judge justifi ed it in these terms: “[I]f one judge

151 UK, p. 12.152 Id. 153 Belgium, p. 34.154 Spain, p. 7. Judges may, however, form professional associations; id., p. 8.155 Id., p. 10. Parties may object on these grounds if a judge does not recuse himself spontaneously.156 Germany, p. 8.157 The Netherlands, p. 6.158 UK, p. 13.159 Id., p. 10.


20

in a thousand acts dishonestly within his jurisdiction to the detriment of the party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.”160 Three other reporting countries, while not taking such an uncompromising line, seek to limit or moderate judicial liability while at the same time upholding the fundamental principles of justice. Spanish law confers judicial immunity by means of exceptions to the criminal procedural rules. The most important of these is that a judge may only be arrested by order of a competent judge or in the case of a fl agrant crime.161 Subject to that, “[c]rimes committed by judges … in the exercise of their functions, will be pursued through the relative criminal process” but subject to limits to the ways in which process may be initiated.162 In respect of civil liability, Spanish law limits liability to cases in which judicial conduct incurs “inexcusable malevolent intent, guilt involving negligence or ignorance.163 There are comparable rules in Greece. While judges are subject to the jurisdiction of the criminal courts, misdemeanours of judges are triable by the Misdemeanors Court not, as is usually the case by the Magistrates Court, and felonies are triable by the Court of Appeals and not by the Misdemeanors Court.164 The civil liability of Greek judges in respect of their judicial functions is covered by “the action of miscarriage of justice.”165 In such an action, a litigant may claim to have been damaged by the judicial activity of a particular judge. In such cases, judges are only liable for malice or gross negligence and actions are subject to a six-months period of limitation. The competent court is the Special Court for Actions of Miscarriage of Justice composed of higher-ranking judicial functionaries, professors of law and attorneys at law.166 In Belgium judges also enjoy “le privilège de jurisdiction” in respect of criminal liability in that the competent court is not the ordinary criminal court but the Cour d’appel.167 In respect of civil liability, the general position of Belgian law is that it would potentially compromise judicial independence. But it is not completely excluded, though it is subject to narrow limitations. Belgian judges are subject to civil liability in two situations. First, where the judicial wrongdoing constitutes a criminal offence. Second, where an action against a judge, la prise à partie, is specifi cally authorised by the law. This occurs in four sets of circumstances: “– en cas de dol ou de fraude, soit dans le cours d’instruction, soit lors des jugements … – lorsque la prise à partie est expressément prononcée par la loi

160 Id., p. 11: Mc v. Mullan [1984] 3 All ER 908, per Lord Bridge at page 916.161 Spain, p. 8.162 Id., p. 13.163 Id.164 Greece, p. 8.165 Id. 166 Id., p. 9.167 Belgium, p. 36.

21


… – lorsque la loi déclare les juges responsable à peine de dommages-interêts … – en cas de déni de justice … .”168 The Cour de cassation has competence over these matters.169 Lastly, in Germany, in the interests of avoiding indirect infl uence, criminal and civil responsibility for judicial action is limited. “Judges may only be prosecuted for perversion of justice with respect to adjudication in case of a fundamental violation of the administration of justice. With respect to civil liability, only a breach of a duty which constitutes a crime provides the basis for damages with respect to adjudication.”170

5.4. Discipline171

Implicit in the laws of those countries that place judges under a measure of legal liability for their actions is the sense that judicial wrongdoing calls for disciplinary action,172 a sentiment which fi nds support in other reporting countries. Even in the United Kingdom, judicial immunity does not extend to disciplinary matters. Under recent changes in the law,173 “the Lord Chief Justice may, with the consent of the Lord Chancellor issue formal advice, or a formal warning or suspend a judge for disciplinary purposes.”174

In Japan, disciplinary proceedings against judges are carried out in a formal process by the judicial authority itself.175 The grounds on which these proceedings may be instituted are “violation de l’obligation professionnelle, la négligence professionnelle et l’inconduite dans la vie professionnelle ou privée.”176 The proceedings are carried out by a tribunal of 14 judges elected by both chambers of the Japanese Parliament.177 In Denmark a Special Board of Appeal, made up of a judge from each of the supreme, high and municipal levels, may discipline a judge whose conduct “weakens or undermines the authority and trust attached to and presupposed by the position of judges in society.”178 Accusations of such misconduct are made by the Chief Public Prosecutor on a motion of the Minister of Justice.179 The Report from Hungary reveals that disciplinary action against judges is informed by the supervision of judicial activity by Court Presidents. “Disciplinary procedure may be initiated by the President of [a] Court … or by the National Council of Justice in the case of judicial leaders

168 Id., pp. 41-42.169 Id. 170 Germany, p. 3.171 I.e., sanctions for misconduct falling short of grounds for dismissal. As for dismissal, see section 6 infra. 172 Indeed, in Belgium and Spain supervision and discipline are exercised through judicial governing bodies; see pp. 46-48 and 14-16 respectively.173 Constitutional Reform Act 2005, Section 108.174 UK, p. 17.175 Japan, p. 9.176 Id., p. 10.177 Id., p. 9.178 Denmark, p. 4.179 Id.


22

appointed by the Council. Offi cial misconduct can be the breach of the duties of judicial offi ce and behavior or lifestyle likely to harm or endanger the ‘prestige of the legal system’.”180 The range of sanctions includes reprimand, admonition, demotion and loss of leadership.181 Supervision, including “monitoring and correction”, also forms part of the German system. “Judges may be reproached with the performance of their offi cial functions and admonished to undelayed and orderly execution unless this interferes with a judge’s substantive independence.”182 While this is the rule applicable to a judge’s “core judicial functions”, matters remote from adjudication itself are subject to general disciplinary supervision. These include the manner and form of decisions, timeliness and the length of court proceedings.183 South Africa has a mechanism of complaints in respect of magistrates, but none in respect of judges. With regard to the latter, a draft white paper produced by the Department of Justice in 1999 “envisaged the introduction of a complaints’ mechanism ‘to ensure that the judiciary is accountable to an independent authority which represents the public interest’.”184

5.5. Financial Independence

The fi nancial independence of the judiciary, as the Report from Serbia and Montenegro points out, has two aspects: the institutional and the personal. In respect of the former, “[an] autonomous judicial budget is considered as the fi nancial condition for [the] independence of the judiciary.”185 At present, fi nancial resources for the work of the courts in Serbia still come from the general state budget and are not earmarked. But drafts of a new Constitution for the Republic of Serbia have prompted proposals that the courts should be fi nanced from a special and independent budget, to be presented to the National Assembly by a “Council for the Judicial Budget” consisting of the President of the Supreme Court, the Minister of Finance and two other senior judges.186 It remains to be seen whether these proposals will be implemented. As far as the personal, fi nancial position of judges is concerned, the Serbian Law on Judges of 2001 provides that judicial salaries are to be equal to the salaries of Ministers. The Judges’ Association of Serbia wishes to go further than this and to establish not only a judge’s right to a salary and to a pension, but also to a salary in “[an] amount that would be enough to protect him/her from possible infl uences and activities which can endanger his/her independence and impartiality.”187 The absence of fi nancial

180 Hungary, p. 5.181 Id. 182 Germany, p. 9.183 Id. 184 South Africa, p. 14. The current status of this proposal is unclear.185 Serbia & Montenegro, p. 29.186 Id., pp. 29-30.187 Id., p. 31.

23


independence of the judiciary at the institutional level is also found in Belgium. “Le Pouvoir judiciare n’est en rien associé à l’élaboration annuelle de son budget, et demeure très largement dépendant des décisions du Ministre de la Justice quant à l’affectation de celui-ci.”188 Criticisms of this dependency appear to have prompted Government proposals for the reform of judicial organisation to include bestowing upon the judiciary, by means of a progressive decentralisation of budgetary management, “un commencement d’indépendence institutionnelle.”189 The salaries of Belgian judges, on the other hand, are fi xed by law and are not subject to governmental whims.190 In South Africa there seems to be some scope for political infl uence on judicial salaries. While the President in determining judicial salaries must consult the Independent Commission for the Remuneration of Public Offi ce Bearers, the Commission must fi rst consult the Minister of Justice and the minister responsible for fi nance (as well as the Chief Justice or his designee), approval of the President’s recommendation is a matter for Parliament.191 A comparable situation in Hungary, whereby the judicial budget proposed by the National Council of Justice could be, and has been, reduced by Parliament at the request of the Government, has been remedied recently. The Government cannot now change the National Council of Justice’s proposal.192 However, the Report from India indicates that because of a relatively low retirement age and a less than generous pension, judges are vulnerable to offers by the Government to appoint them to lucrative posts after retirement.193

In all of the other reporting countries the focus is on the personal, fi nancial position of the judges. Thus in the United Kingdom and, following that precedent, the United States, judicial salaries are expressly protected. In the United Kingdom, judicial salaries are “ascertained and established”194 by law, are not subject to annual approval and may be increased but not decreased.195 In the same vein, Article III(1) of the United States Constitution provides that “Judges of both of the supreme and inferior Courts … shall, at stated times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Offi ce.”196 In the Netherlands, similarly, “the salary of judges is prescribed by law, and cannot be unilaterally changed by the government.”197 And, in Japan, judges receive “une indemnité adéquate qui ne peut être réduite durant leur mandat.”198 An appropriate and adequate level

188 Belgium, p. 19.189 Id. 190 Id., pp. 33-34.191 South Africa, pp. 12-13.192 Hungary, p. 5.193 India, p. 4.194 UK, p. 2.195 Id., p. 10. After 15 years service judges can retire on a pension equal to half of their salaries, id. 196 See USA, pp. 23, 31-32.197 Netherlands, p. 5.198 Japan, p. 8.


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of salary is also guaranteed in Denmark, Germany and Spain.199 The Greek Report refers to a procedure whereby “disputes between judicial functionaries and the State – as fi scus – regarding the remuneration of judicial functionaries” come within the competence of the Special Court for Actions of Miscarriage of Justice.200 It is pointed out that the outcome of such disputes may result in either fi nancial gain or loss for the judiciary.201

5.6. Transfer and Redeployment

While security of tenure, a protected jurisdiction and a guaranteed salary may seem to assure judicial independence, it may be put at risk if judges’ careers are potentially subject to involuntary transfers and redeployment. Many of the National Reports record measures expressly designed to obviate such a threat. The clearest examples are provided by Belgium, Germany, Japan and Serbia. Article 152(3) of the Belgian Constitution provides as follows: “Le déplacement d’un juge ne peut avoir lieu que par une nomination nouvelle et de son consentement”. The Belgian Report explains the ratio legis of this rule in these terms: “il s’agit d’éviter que la menace de déplacement d’un juge ne puisse être utilisée aux fi ns d’exercer une pression sur lui, et porter ainsi atteinte à son indépendence.”202 Likewise in Germany “judges appointed to full-time positions may not in principle be removed from offi ce or transferred to another court against their will”, other than “[i]n the event of changes in the structure of courts or in their districts.”203 In Serbia, the same principle is derived from “the broader principle – the principle of permanence of the judicial function … . Any change of domicile or residence, especially when it is done unwillingly, could bring anxiety into a judge’s life, which could further affect the quality of his/her work.”204 The “principe de l’inamovibilité” is also a feature of Japanese law which guarantees to judges “l’interdiction d’un changement de son statut, [et] sa mutation … contre sa volonté.”205

In three other cases, responsibility for transfer and redeployment is given to bodies representing the judiciary. In Spain, these matters are dealt with by the General Council of the Judiciary.206 Similarly, Greek law gives exclusive competence over relocations to the Supreme Judicial Councils.207 In Hungary, transfer to another court in a judge’s region is subject to

199 See pp. 4, 10 and 8 respectively.200 Greece, p. 9.201 Id. 202 Belgium, p. 32.203 Germany, p. 10.204 Serbia & Montenegro, p. 17.205 Japan, p. 9.206 Spain, p. 7.207 Greece, p. 6.

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the judge’s consent. Transfers outside the jurisdiction of a given region are decided by the National Council of Justice.208 These latter transfers are decided without the judge’s consent once every three years for a maximum of one year.209

Other examples of compulsory transfer are found in the Danish and Indian reports. Danish judges may be transferred against their wishes in a case of the rearrangement of the courts. The Indian Government, with the advice of the President of the Supreme Court, is empowered to transfer a judge from the Supreme Court of one State to the Supreme Court of another. The ostensible justifi cation for this is national integration, but the Indian Report asserts that this is done in practice in furtherance of a Government policy to have a third of the members of each State Supreme Court drawn from other States, so as to give the Government “une masse de manoeuvre confortable.”210 The Report comments: “un déplacement est cause de perturbation pour le juge qui peut se trouver soudain transporté dans un environnement tout à fait différent: langue, produits alimentaire et climat … Certains juges ont préféré démissionner plutôt que de rejoindre leur nouveau poste lointain.”211

6. Dismissal from Offi ce

6.1. Grounds of Dismissal

All of the reporting countries, as one would expect, make provision for the dismissal of judges from offi ce. The overwhelming pattern that emerges is the identifi cation of conduct that is in some way incompatible with continuance in judicial offi ce. Some countries, as it were, paint in bold strokes; others legislate in some detail. The clearest example of the broad approach is the United Kingdom. Since 1701, the judges of the superior courts have held offi ce “quamdiu se bene gesserint”, i.e. during good behaviour.212 The recent reorganisation of the judicial system has retained this formula.213 Since only one superior judge in the United kingdom has ever been dismissed since 1701,214 there is no body of evidence, let alone consensus, on what constitutes “misbehaviour” suffi cient to dismiss a judge.215 Lower ranking judicial functionaries may be dismissed on grounds of incapacity, misbehaviour or persistent incompetence.216 There is also some

208 Hungary, p. 3.209 Id. 210 India, p. 4.211 Id. 212 UK, p. 2.213 Id., p. 17.214 Sir Jonah Barrington, in 1830, on grounds of misconduct and malversation in offi ce; see R. E. Megarry, Miscellany-at-Law (3rd impr., 1958), at p. 17.215 Academic commentators have suggested that misbehaviour might include conviction for an offence involving moral turpitude, and persistent neglect of duties, but not mental infi rmity: UK, p. 9.216 Id., pp. 16-17.


26

uncertainty in the United States. While federal judges, also “hold their Offi ces during good Behaviour”217… “[t]he Constitution says nothing specifi c about removing judges.”218 The United States’ Report states that “the Constitution’s silences and ambiguities” on this matter have been resolved by making federal judges subject to the Constitution’s impeachment provisions.219 Thus a federal judge, as a “civil Offi cer of the United States, shall be removed from Offi ce on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanours.”220 Again, the precedents for removing judges on these grounds are few and inconclusive.221 For all practical purposes, it may be said of both the superior judges of the United Kingdom and the federal judges of the United States that they are virtually irremovable. The position is comparable in the other common law country, India. There, judges of the superior courts may be removed “pour motif d’incapacité ou de mauvaise conduite.”222 Indian judges have yet to be removed on these grounds and the one attempt to date was unsuccessful: “Ainsi les juges des tribunaux supérieurs sont presque assurés d’impunité.”223

A broadly based approach is also found in Denmark where a judge may be dismissed for serious or repetitive acts “that weaken or undermine the authority and trust attached to and presupposed by the position of judges in society.”224 In South Africa, similarly, a judge may be discharged from offi ce if he/she “is incapable of performing his or her duties due to mental or physical infi rmity, is grossly incompetent or is guilty of gross misconduct.”225 Mental or physical inability to perform judicial functions are also the grounds for dismissal in Japan.226

A clear example of a reporting country that legislates in some detail on the grounds on which a judge may be dismissed is the Netherlands. Here a basic proposition is that the dismissal of a judge for unsatisfactory performance “can only be granted in certain cases provided for by Act of Parliament.”227 Those cases, as elaborated by legislation, are eight in number: permanent unsuitability to perform duties because of long term illness; unsuitability to perform tasks other than due to illness; acceptance of an offi ce incompatible de jure with

217 US, p. 23.218 Id., p. 25.219 Id., pp. 26-27.220 US Constitution, Article II(4).221 The fi rst to be removed was John Pickering in 1804, who “was on all accounts barking mad”: US, p. 27. But see H. J. Abraham, The Judicial Process (4th ed., 1980), at p. 47 who, while confi rming Pickering’s insanity, states that the formal counts against him were “irregular judicial proceedings, loose morals and drunkenness.” Abraham, id., also refers to three other successful judicial impeachments on grounds of “support of secession and holding Confederate offi ce”, “thirteen serious charges of misconduct in offi ce”, and “the receipt of corrupt payments, practicing law while on the bench, and falsifying income tax returns.”222 India, p. 2.223 Id. 224 Denmark, p. 4.225 South Africa, p. 13.226 Japan, p. 8.227 Netherlands, p. 9.

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judicial offi ce; loss of Dutch nationality; either a fi nal conviction for a serious crime or a fi nal and irrevocable judgment entailing deprivation of liberty; any of a number of fi nancial incapacities such as fi nancial guardianship or bankruptcy; acts or omissions seriously compromising the administration of justice or confi dence in it; repeated failure to comply with a variety of prohibitions including exercising certain occupations and meetings with parties or their lawyers or accepting special information from them.228 The approach in Germany is similar. Federal judges, by constitutional provision, may only be dismissed “for the reasons … specifi ed by the laws.”229 The Federal Judges Act provides these reasons, which result in automatic dismissal: employment in a different public service; becoming a soldier; loss of German citizenship.230 A judge may also be dismissed if he refuses to take the necessary oath, is a member of Parliament, becomes unfi t for service, resides in a foreign country without permission, is sentenced to at least one year‘s imprisonment for a wilful crime, is sentenced for treason, endangering the democratic legal order or German national security, is adjudged professionally incapable for public offi ce, or forfeits his civil rights.231 In addition, a federal judge will be dismissed if he intentionally, either in his offi cial capacity or unoffi cially, infringes the principles of the Grundgesetz or the constitutional order of a Land.232 The Reports from Hungary and Serbia indicate similar but less numerous lists of grounds.233

The remaining three countries appear to have approaches peculiar to them. Under Spanish law, a judge will be dismissed as a result of conviction for a criminal offence.234 Beyond that, the law, in this context, distinguishes between light, serious and very serious faults. Very serious faults, such as membership of a political party or the exercise of activities that are incompatible with the judge’s profession, are likely to result in dismissal, but such a loss of capacity may be reversible in some cases.235 In Greece, the grounds on which a judge may be dismissed are of two kinds: breaches which may be committed by any public offi cer and breaches linked to the status of judicial functionary.236 In Belgium, dismissal seems to be linked to the concept of incompatible functions or actions.237

228 Id., p. 11.229 Germany, p. 10.230 Id., p. 10-11.231 Id., p. 11.232 Id. 233 Hungary, pp. 5-6; Serbia & Montenegro, pp. 23-24.234 Spain, p. 14.235 Id., pp. 14-15.236 Greece, p. 8.237 Belgium, pp. 34-35.


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6.2. Power of and Procedure for Dismissal

While, in the interests of protecting judicial independence, the grounds on which a judge may be dismissed from offi ce are important, equally signifi cant are the seat of the power to dismiss and the procedure for exercising that power. The National Reports reveal two distinctive approaches to these matters: one group of countries places both the power and the procedure in the hands of the judiciary itself; the other group of countries involves the legislature and the executive. Among the fi rst group, Article 152 of the Belgian Constitution provides that “[a]ucun juge ne peut être privé de sa place … que par un jugement.”238 The Code Judiciaire further provides that such a judicial decision requires a two-thirds majority.239 In Denmark, a judgment is also necessary, there by a Special Board of Appeal composed of a judge from each of the supreme, high and municipal levels.240 “The dismissal proceedings are oral and adversary and the decision to dismiss a judge is delivered pursuant to the ordinary rules in the Administration of Justice Act.”241 Complaints against judges may be made to the Special Board of Appeal either by individuals or by the Chief Public Prosecutor.242 Likewise, in Spain dismissal procedures are the responsibility of the General Council of the Judiciary “and are always carried out with hearing of the interested party and reporting to the Public Prosecutor.”243 Proceedings in such cases are entrusted either to the Disciplinary Committee or the Full Assembly of the General Council.244 Federal judges in Germany may only be dismissed by a judgment of the Dienstgericht, a special chamber at the Federal Court of Justice.245 Specifi c rules apply, however, to the judges of the Federal Constitutional Court: they “may be … dismissed only in pursuance of a plenary decision which is subject to stringent conditions. No such decision has yet been taken.”246 In Greece, proceedings that may lead to dismissal are exclusively in the hands of the judiciary so as to “safeguard the independence of the judicial function and for judicial functionaries not to be afraid of any intervention in their judicial function.”247 Both the initiation and conduct of dismissal proceedings are entrusted to the Plenum of the Supreme Court.248 The application of the grounds of dismissal is also the exclusive competence of the judiciary in the Netherlands.249 The Netherlands’ Judicial Offi cers (Legal

238 Belgium, p. 31.239 Id., p. 32.240 Appointed by the Minister of Justice for ten-year non-renewable terms: Denmark, p. 4.241 Id., emphasis in the original.242 Id. 243 Spain, p. 7.244 Id., p. 15.245 Germany, p. 11.246 Id., pp. 7-8.247 Greece, p. 8.248 Id. 249 Netherlands, p. 10.

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Status) Act grants this competence to the Netherlands Supreme Court, which exercises it upon an application by the Procurator General of the Supreme Court. The independent nature of this procedure is enhanced by a prohibition on the administration (government) from demanding the dismissal of a judge and by the Procurator General’s life tenure.250 In Hungary, Court Presidents and, in the case of judicial leaders, the National Council of Justice, are authorised to bring proceedings that may lead to dismissal.251 A Disciplinary Tribunal, made up of three judges, investigates the allegations against a judge and its decisions are subject to appeal.252 It appears, although it is not entirely clear, that this appellate function is carried out by the National Council of Justice, acting by a two-thirds majority of its judicial members and presided by the President of the Supreme Court.253 Lastly in this group, in Serbia, while the decision to dismiss is a matter for the National Assembly such a decision is contingent upon a prior fi nding of grounds for dismissal by the Supreme Court.254 Proceedings for dismissal may be initiated by court presidents or by the Minister for Justice and are conducted by the Great Personnel Council chaired by the President of the Supreme Court.255 If the Great Personnel Council fi nds no grounds for dismissal, the procedure will terminate.256

Among the other group of countries, in South Africa, the President of the Republic is empowered to discharge a judge from offi ce. But, he may only so decide if two conditions are satisfi ed: that the Judicial Services Commission has found that there are grounds for dismissal and that the National Assembly, by a majority of two-thirds of its members, has resolved that the judge should be removed. The President is bound by such a resolution and cannot override the will of Parliament.257 A similar relationship between the legislature and the executive, but with the absence of an objective element, is found in the United Kingdom and India. In the former, a judge of the English superior courts may be removed by the Queen, on the recommendation of the Lord Chancellor, following a address from each House of Parliament calling for that judge’s removal.258 Academic commentators have pointed out that the authority of the Houses of Parliament in such a matter is not strictly limited to cases of judicial misbehaviour but could include any other ground.259 But there is a consensus that it is “extremely unlikely that Parliament would be willing to pass an address from any motive other than to remove a judge who has been guilty of misconduct.”260 The same authority

250 Id., pp. 11-12.251 Hungary, p. 5.252 Id. 253 Id., pp. 1-2.254 Serbia & Montenegro, p. 26.255 Id., p. 24.256 Id., p. 25.257 South Africa, p. 13.258 UK, pp. 8-9 & 17. Comparable provisions apply to judges in Scotland and Northern Ireland: id., pp. 9-10.259 Id., pp. 8-9.260 Id., p. 9.


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attributes this “to the self-restraint of politicians and the circumspection maintained by the Judiciary.”261 India has inherited and maintained similar arrangements. There a judge of a superior court may be removed by the President of the Republic after a petition for removal from both chambers of Parliament in the same session and by a majority of at least two-thirds in each chamber.262

The remaining two countries are sui generis on this issue. In the United States, federal judges may be removed by the process of impeachment which involves both Houses of Congress.263 The House of Representatives is empowered to initiate impeachment by a simple majority of its members, there being a quorum present. The cause will then be tried by the Senate, which may convict by a vote of two-thirds of its members present and voting, there being a quorum. The fact that this process has not been abused for political motives is attributed to two factors: “the Constitution’s super-majority requirement for a Senate conviction” and a “general acceptance that Congress’s power to remove judges [is] confi ned to cases of ‘high crimes and misdemeanours’.”264 The American system has inspired the provisions of the Japanese Constitution relating to the dismissal of judges. The process of impeachment has not been copied, but democratic control over judicial authority is present in the form of a ten-yearly opportunity at general elections to terminate the tenure of judges. This has not been effective in practice: “en raison de l’indifférence manifeste des électeurs, aucun juge ne s’étant jusqu’à présent vu destitué.”265

7. Conclusion

This survey of thirteen countries supports a general conclusion that judicial independence is regarded as an essential constituent of the rule of law in all of them. In the large majority of cases, guarantees of that independence are provided by a combination of formal constitutional provisions and legislative provisions, the latter sometimes of a very detailed and elaborate nature.266 Even the United Kingdom, which has hitherto based its long-established practice of judicial independence on tradition, case law, some statutory provisions and governmental self-restraint, has latterly legislated expressly on the subject with the likely effect that “the legal protections of judicial independence in the UK will attain greater heights … ensuring that the independence of the courts [will rest] more on law than on conventions.”267

261 Id., p. 10.262 India, p. 2.263 US Constitution, Article I(2) and (6).264 US, p. 29.265 Japan, p. 7.266 The German Report, at p. 12, raises the question whether in some instances the notion of judicial independence “has been overly stretched”, for example, by prohibiting the regulation of a judge’s working hours.267 UK, p. 18.

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The United States stands out against this commonality of approach. While “[t]he United States Constitution builds the two great pillars that raise up a vigorously independent judiciary – jurisdiction and tenure … the independent power of United States courts is more robustly guaranteed by other aspects of the structure of government.”268 “The substantive feature of American political life that secures the federal courts’ authority and independence is power apportionment among electorally-accountable actors in national and state governments.”269 By means of this apportionment, “the Constitution creates a system that cannot survive without an independent and functional arbiter of the apportionment,”270 i.e. the federal courts. The comfort and satisfaction that can be derived from such a general conclusion must not, however, lead to complacency. As was pointed out in the Introduction to this General Report, tensions can arise out of an apparent confl ict of interests between the judiciary and the executive, which can threaten to undermine judicial independence. Four of the National Reports refer expressly to such threats. The Belgian Report identifi es three, potential “nouvelles menaces pour l’indépendance du pouvoir judiciare et les magistrats qui le composent.”271 These are: legislative interference with potential litigation by neutralising, retrospectively, judicial authority to control the legality of administrative acts;272 “interventions politiques intempestives” in the course of actual litigation designed to achieve a particular outcome;273 and virulent press campaigns that can infl uence public opinion and, consequently jurors, and so adversely affect a fair trial.274 The Report from India states that while there is no frontal attack on judicial independence, judges are subject to three “mesures sournoises de persuasion.”275 The fi rst of these is by the government exercising its power to nominate judges of the Supreme Court by ignoring the convention of nominating senior judges of the superior courts and instead choosing “des juges engagés (évidemment dans le même sens que le gouvernement).”276 Secondly, the power of the government to transfer judges from one superior court to another is seen “comme une épée de Damoclès” over such judges.277 Lastly, “le gouvernement dispose d’une récompense à offrir aux juges ‘meritants’”: the relatively early retirement age and the terms of judicial pensions make judges vulnerable to the prospect of lucrative post-retirement posts that are in the gift of the government.278 There is a parallel anxiety expressed from Japan. There, despite the guarantees of the

268 US, p. 1.269 Id., p. 33.270 Id., p. 32.271 Belgium, p. 48.272 Id., pp. 48-49.273 Id., pp. 49-50.274 Id., 50-51.275 India, p. 4.276 Id. 277 Id. 278 Id.


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Constitution, “en réalité l’autorité judiciaire, plus exactement la Cour Suprême, s’auto-limite considérablement pour ne pas provoquer une intervention politique gouvernementale, et les juges de moindre instance, quant à eux, tendent à s’autolimiter pour ne pas provoquer un traitement défavorable par la Haute Instance.”279 The Report from Germany suggests that the introduction of modern business management techniques in the administration of justice in the interests of effi ciency may have consequences for judicial independence.280

Finally, the Report from South Africa gives a timely reminder that judicial independence cannot be taken for granted. It cites the confi dent and unqualifi ed statement in support of a judiciary independent of the executive made by the fi rst black Chief Justice of Zimbabwe in 1987 and contrasts it with removal from offi ce of his successor less than fi fteen years later in order to silence judicial criticism of government policies.281 Humanity is, of course, another factor: “Le juge est homme, avec ses élans, ses émotions, ses préjugés; il fait partie d’un tissu social dont il ne peut se détacher complètement.”282 Eternal vigilance is the condition upon which we secure our liberty.

Cite as: John Bridge, Constitutional Guarantees of the Independence of the Judiciary, vol. 11.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (December 2007), <http://www.ejcl.org/113/article113-24.pdf>.

279 Japan, p. 16.280 Germany, p. 12.281 South Africa, pp. 15-16.282 India, p. 6.

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