The Culture of Judicial Independence in a Globalised World [1 ed.] 9789004307087, 9789004307063

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The Culture of Judicial Independence in a Globalised World

The Culture of Judicial Independence in a Globalised World Edited by

Shimon Shetreet Wayne McCormack

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Shetreet, Shimon, editor. | McCormack, Wayne, editor. Title: The culture of judicial independence in a globalised world / edited by Shimon Shetreet, Wayne McCormack. Description: Leiden ; Boston : Brill Nijhoff, 2016. | Includes index. | “This volume, Culture of Judicial Independence in a Globalised World, is based on the papers presented at the four conferences held in the framework of The International Project on Judicial Independence” --Preface. | Includes texts of the international standards on judicial independence: Mt. Scopus International Standards of Judicial Independence, Global Code of Judicial Ethics, The New Delhi Code of Minimum Standards of Judicial Independence (Adopted by the iba New Delhi Convention 1982), Universal Declaration on the Independence of Justice.” Identifiers: lccn 2016035044 (print) | LCCN 2016035435 (ebook) | isbn 9789004307063 (hardback : alk. paper) | ISBN 9789004307087 (E-book) Subjects: LCSH: Judicial independence--Congresses. | International and municipal law--Congresses. | Law and globalization--Congresses. Classification: LCC K3367 .C853 2016 (print) | LCC K3367 (ebook) | DDC 347/.012--dc23 lc record available at https://lccn.loc.gov/2016035044

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISBN 978-90-04-30706-3 (hardback) ISBN 978-90-04-30708-7 (e-book) Copyright 2016 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Preface ix Acknowledgements xviii Table of Cases xx Table of Statutes xxvi List of Contributors xxxi

Part 1 Judicial Independence: Globalised Legal Culture 1 Introduction 3 2 The Impact of International Law on Judicial Independence in Domestic Law: The Jurisprudence of the European Court of Human Rights 20 Shimon Shetreet 3 Reflections on Judicial Independence 45 Marcel Storme 4 Judicial Independence and Judicial Accountability: Two Sides of the Same Coin 48 Sophie Turenne 5 Judicial Independence in Italy 61 Giuseppe Franco Ferrari 6 Administrative Justice and the Independence of the Judiciary 68 Graham Zellick

Part 2 The Challenge of Careful Drawing of Boundaries of Judicial Function 7 Limits of the Law 75 Esther Hayut

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8 The Presence of Religious Symbols in Public Schools: The Attitudes of Italian Courts Between Historical Legacy and Protection of Minority Beliefs 88 Daniela Cavallini 9 The Dark Side of Counter-Terrorism: The Argument for a More Enlightened Approach Based on a Constitutional Law Paradigm 94 Arianna Vedaschi 10 Judicial Creativity in Australia and Implications for Judicial Independence 116 H.P. Lee

Part 3 Judicial Independence and Accountability: Contemporary Analysis 11 Judicial Independence Without Power: Norms in Search of Law 129 Wayne McCormack 12 Conflict of Interests as an Exclusionary Factor in the Judicial Nomination Process 148 Sergey Nikitin 13

Attaining Justice for Foreign Parties in Domestic Courts 151 Fryderyk Zoll

14 The Role of the Legal Profession in Protecting Judicial Independence 156 Jennifer Temkin 15

Relations Between Top Courts and Supra-National Courts 162 Shimon Shetreet

16 Constitutional Review by the Brazilian Supreme Court: The Case of Civil Arrest 166 Ada Pellegrini Grinover

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17 Judicial Independence in Albania: Challenges in an eu Candidate Country 169 Teuta Vodo

part 4 Domestic Courts and Foreign Elements: Foreign Parties, Foreign Law and Foreign Judges 18 To Ignore or Not to Ignore: A Silly Debate in the U.S. Supreme Court? 195 Wayne McCormack 19

Use of Foreign Law by the U.S. Supreme Court 219 Jonathan L. Entin

20 The Foreign Party’s Choice Between Arbitration and Court Litigation 233 Neil Andrews 21

Legal Aspects Regarding Foreign Parties in Austrian Civil Courts 263 Walter H. Rechberger

22 State Liability for Judicial Wrongs: Impact of Rulings of the European Court of Justice and Debate in Italy 272 Daniela Cavallini 23 The Expatriate Judges and Rule of Law in Hong Kong: Its Past, Present and Future 279 Lin Feng 24 Resolving Cross Country Tax Disputes in Cases of International Economic Double Taxation 313 Yitzhak Hadari

part 5 Judicial Attitudes Towards “Others” in Domestic Courts 25 Citizens and Aliens in U.S. Courts 319 Wayne McCormack

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26 Addressing the Otherness of Hispanic Immigrants in Florida Criminal Courts 334 George W. Maxwell iii

part 6 Recent Amendments to the Mt. Scopus International Standards of Judicial Independence 27 Amendments to the Mt. Scopus Standards (Moscow Conference, Osnabrueck Conference and Bologna and Milan Conference) 359 Shimon Shetreet 28 Towards a Global Code of Judicial Ethics 370 Shimon Shetreet

part 7 Text of the International Standards on Judicial Independence Appendix i: Mt. Scopus International Standards of Judicial Independence Consolidated Version 381 Appendix II: Global Code of Judicial Ethics 414 Appendix III: The New Delhi Code of Minimum Standards of Judicial Independence (Adopted by the iba New Delhi Convention 1982) 439 Appendix IV: Universal Declaration on the Independence of Justice 451 Index 470

Preface This volume The Culture of Judicial Independence in a Globalised World, is an academic continuation of the previous three volumes: Judicial Independence: The Contemporary Debate, edited by Professor Shimon Shetreet and Chief Justice Deschenes (1985), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges edited by Professor Shimon Shetreet and Professor Christopher Forsyth (2012), and The Culture of Judicial Independence: Rule of Law and World Peace edited by Professor Shimon Shetreet (2014). This volume, fourth in the series of volumes on judicial independence, offers papers and studies by academics, judges and practitioners from many jurisdictions on judicial independence – both national and international. The four volumes are the work of the International Project of Judicial Independence of the International Association of Judicial independence and World Peace (www.jiwp.org). The International Project of Judicial Independence is co-sponsored by the Hebrew University of Jerusalem Faculty of Law, the Harry and Michael Sacher Institute of Legislative Research and Comparative 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 conditions are essential in order to insure the rule of law and to maintain the protection of human rights. Judicial independence is essential for the rule of law and critical for the proper functioning of civil society. Without impartial and independent dispute 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 globalisation and free and efficient economic activity and international trade and investments. The legitimate expectation of fair and independent adjudication is one of the necessary prerequisites for economic growth and for foreign investments 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. It is now four decades that the Members of the JIWP Association who are distinguished experts from many countries – including the U.S., Canada, the u.k., Israel, Italy, Belgium, Poland, Hong Kong, Russia, Austria, India, ­Australia,

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Malaysia, Switzerland, China – 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 concepts of institutional judicial independence, internal judicial independence, judicial diversity and the fair reflection of society in the judiciary. All those concepts and others have become widely-understood and valued concepts. It is with great satisfaction that it may be noted that the works of the International Project of Judicial Independence received recognition from jurists and supporters of judicial independence, the rule of law, and world peace. The works of the Project are relied upon in national and international courts. 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 international judges. The Association and its members have introduced innovative concepts of judicial independence clarifying significant components essential for the rule of law, liberty, democracy and human rights. This was done over a long period of four decades through major international conferences involving major important international organizations, and the drafting of international standards and declarations. The concepts developed 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 the last four decades, the Association and its members have contributed to the advancement of the rule of law and world peace through its promotion of an independent judiciary. The Association has devoted itself to the promotion of judicial independence and rule of law by organizing conferences and conducting studies and research, by publishing volumes on judicial independence, by drafting and revising international standards of judicial independence, by popularizing the concept of judicial independence, and by increasing society’s understanding of the links between judicial independence and democracy, rule of law, liberty, freedom and peace. 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 (Liechtenstein), Rhodes, Aqaba, Amman, and Casablanca. The Association believes that justice and peace go hand in hand and mutually reinforce each other. The Culture of Peace’s vision calls for strengthening

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peace by basing it on four foundations: security and political peace, economic peace, cultural or fundamental values peace, and religious peace.1 Over the last decade, the Association has been extremely active in The International Project of Judicial Independence led by the Hebrew University Faculty of Law, the Harry and Michael Sacher Institute of Legislative Research and Comparative Law and the University of Cambridge Centre of Public Law, and in cooperation with many universities, it has organized fourteen successful international conferences in which experts in the fields of judicial independence and administration of justice have shared their ideas and developed their research. Conferences were held at the following universities: Hebrew University of Jerusalem, Vadouz, Jagiellonian University in Krakow, University of Cambridge, University of Utah, University of Vienna, City University of Hong Kong, University of Ghent, University of San Diego, State University of Moscow, University of Osnabruck, University of Bologna and Bocconi University of Milan, and Kozminski University and Osnabruck University (in Krakow). The first International Conference on Judicial Independence was held in Jerusalem in March of 2007 and it was chaired by Prof. Shimon Shetreet and Professor James Crawford. Its focus was on judicial independence in international law. The second conference on Judicial Independence was devoted to the Drafting of the International Standards of Judicial Independence was held in Vaduz in the principality of Liechtenstein in December 2007 and it was co-chaired by the late H.E. Marcus Buechel, Prof. Marcel Storme, and Prof. Christopher Forsyth, and Professor Shimon Shetreet. The third International Conference on Judicial Independence was held in March 2008 in Jerusalem and was co-chaired by Prof. Christopher Forsyth and Prof. Shimon Shetreet. The conference focused on the Constiutional Position of the Judiciary. The fourth International Conference on Judicial Independence was held in the: Comparative Analysis and Challenges of Implementation at the Jagiellonian University in Krakow Poland in November 2008 and was co-chaired by Prof. Fryderyk Zoll and Prof. Shimon Shetreet. The conference, focusiedng on the analysis and challenges of the implementation of the Mt. Scopus Approved International Standards of Judicial Independence. 1 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, “Culture of Peace and Human Rights, Development of Human Rights Protection in the European Union,” in Culture of Judicial Independence: Rule of Law and World Peace (Shetreet ed. 2014).

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The fifth International Conference on Judicial Independence was held in Cambridge, u.k. in August of 2009. It focused on Conceptual Foundations and Practical Challenges and was held at Cambridge University, co-chaired by Prof. Christopher Forsyth and Prof. Shimon Shetreet. The sixth International Conference on Judicial Independence focused on Challenges for Judicial Independence, Implementing Judicial Independence in Multicultural Societies and in Times of Crisis and was held at the University of Utah in Salt Lake City (October 2010). The conference was co-chaired by Prof. Hiram Chodosh, Professor Wayne McCormack, and Prof. Shimon Shetreet. The seventh International Conference on Judicial Independence was held at the University of Vienna in May 2011 and was co-chaired by Prof. Walter Rechberger and Prof. Shimon Shetreet. The conference focused on judicial independence as an essential element for economic order. The eighth International Conference on Judicial Independence was held at the City University of Hong Kong in March 2012 and was co-chaired by Prof. Anton Cooray, Prof. Wang Guiguo and Prof. Shimon Shetreet. The conference focused on the globalization and judicial independence. The ninth International Conference on Judicial Independence was held at the University of Ghent, Belgium in October 2012 and was co-chaired by Prof. Marcel Storme and Prof. Shimon Shetreet. The conference focused on the impartiality and fairness of the judicial process. The tenth International Conference on Judicial Independence was held the University of San Diego in San Diego, California in August 2013 and was cochaired by Prof. Maimon Schwarzschild and Prof. Shimon Shetreet. The conference focused on judicial independence, the rule of law and world peace. The eleventh conference was held in Moscow in May 2014 and was hosted by the Moscow State University of Law and Russian Academy of Justice and supported by Art de Lex law firm. In October 2014, the twelfth conference was held at the University of Osnabruck, Germany. In June 2015, the thirteenth conference was held at the University of Bologna and at Bocconi University of Milan, Italy. The most recent conference, the fourteenth conference, was held in Krakow in January 2016. It was organized by the University of Osnabrück and Kozminski University in Warsaw School of Law, Poland. These conferences over the years have led to significant contributions in the field of judicial independence. Following the Jerusalem conference in 2008, the jiwp Association published the Mt. Scopus International Standards of Judicial Independence 2008.2 2 http://www.jiwp.org/ - !mt-scopus-standards/c14de.

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After the approval of the Mount Scopus International Standards of Judicial Independence 2008, the Association has adopted a number of amendments to the Standards and added a number of articles to the Standards since its original adoption. The amendments dealt with a number of topics: adjudicatory function of judges and what requirements are expected from them, judges accepting chairing commissions of inquiry, culture of judicial independence, selection of chief justices, and the relationship between international and supernatural courts, and top national courts, adjudicatory officers.3 The amendments passed in 2011 and 2012 included: relations between top national courts and international and supranational courts, Administrative Adjudicators, limits on judges’ consultations, expressly provided procedure for selection of Chief Justices, culture of judicial independence, and guidelines regarding public inquiries by judges. The amendments passed in 2013, 2014 and 2015 dealt with the legal profession and judicial independence, also in 2015 the Global Judicial Ethics Code was approved and the Online Justice and the Online Dispute Resolution (odr) were discussed.4 During the years 2012 to 2014, the International Project of Judicial Independence published two volumes in Judicial Independence. In 2012 the second volume was published Shimon Shetreet and Christopher Forsyth (eds.) Culture of Judicial Independence: Conceptual Foundations and Practical Challenge edited by Shimon Shetreet and Christopher Forsyth (Martinus Nijhoff: 2012). In 2014, the third volume was published Judicial Independence: Rule of Law and World Peace, edited by Shimon Shetreet. This volume, Culture of Judicial Independence in a Globalised World, is based on the papers presented at the four conferences held in the framework of The International Project on Judicial Independence of which Professor Shimon Shetreet is the General Coordinator. The four conferences covered in this volume are as follows: (1) The eleventh International Conference on Judicial Independence was held at the Moscow State University of Law, Russia in May 2014 and was co-chaired by Prof. Irina Reshetnikova and Prof. Shimon Shetreet. The

3 See the following added sections to the Mount Scopus International Standards: Sections 1.3, 1.4,4.10,7.12, 9A,9B. 4 For the analysis of the amendments, see Chapter 31 in Shimon Shetreet, ed., Culture of Judicial Independence: Rule of Law and World Peace (Brill-Nijhoff, 2014); and see also Chapter 27 in this volume Shimon Shetreet and Wayne McCormack, eds., Culture of Judicial Independence in a Globalised World (Brill-Nijhoff, 2016).

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conference focused on Judicial Independence as essential foundation of Justice and Peace.5 (2) The twelfth International Conference on Judicial Independence was held at the University of Osnabruck, Germany in October 2014 and was cochaired by Prof. Fryderyk Zoll and Prof. Shimon Shetreet. The conference focused on ensuring fairness in cases involving foreign parties in domestic courts.6 (3) The thirteenth International Conference on Judicial Independence was held at the University of Bologna and Bocconi University of Milan, Italy in June 2015 and was co-chaired by Prof. Daniela Cavallini, Prof. Giuseppe Franco Ferrari and Prof. Shimon Shetreet. The conference focused on the use of foreign and transnational precedents by national supreme courts.7 (4) The fourteenth International Conference on Judicial Independence was held in Krakow and was organized by Osnabrück University, Germany, and Kozminski University in Warsaw School of Law, Poland in January 2016 and was co-chaired by Dr Elwira Macierzynska-Franaszczyk, Prof. Fryderyk Zoll and Prof. Shimon Shetreet. The conference focused on times of transition of government and impartiality for foreign Parties in Domestic Courts.8 The Mt. Scopus International Standards of Judicial Independence adopted and the studies published by the members of the jiwp Association have given increased credibility to the concept of judicial independence inter alia by increasing understanding and awareness of the direct connections between an independent and impartial judiciary, and the rule of law, democracy, liberty, freedom and peace, in political circles and within the legal profession. It is to be noted also that the prevailing line of thought on judicial independence 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. The culture of judicial independence is created on five important and essential aspects: creating institutional structure, establishing constitutional infrastructures, introducing legislative provisions and constitutional safeguards, creating adjudicative arrangements and jurisprudence, and

5 6 7 8

http://www.jiwp.org/#!ji-conference-moscow/cobl. http://www.jiwp.org/#!mt-conferences/cde0. http://www.jiwp.org/#!bologna-milano-conference/f2eet. http://www.jiwp.org/#!krakow-conference/skh03.

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maintaining ethical traditions and code of judicial conduct.9 The institutional 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. The legislative provisions offer a detailed regulation of the basic constitutional principles. The courts add to the constitutional infrastructure and the legislative provisions, complimentary interpretations and jurisprudence on different aspects of the conduct of judges, 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.10 International law plays a significant role in creating the culture of judicial independence in domestic law. The case of England illustrates the impact of international law on national law as well as to illustrate the earlier impact of the English law and constitutional principles of judicial independence on the U.S. Constitution and other legal cultures in developing judicial independence. Professor Shetreet has elsewhere classified this process as the normative cycle of the international and national law in the area of judicial independence.11 International law influences domestic law by virtue of international human rights treaties, which provide for principles of fair procedures and for the right to be tried before an impartial and independent tribunal. In addition to international treaties, there are international standards, which non-governmental

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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 Foundcations and Practical Challenges 17 (2012). L. Neudorf, Shimon Shetreet and Christopher Forsyth (eds.), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, Leiden: Martinus Nijhoff, 2012, 662 pp, 76. The Modern Law Review, 181–184 (2013). 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).

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and academic study groups have developed. One such example is the Mt. Scopus International Standards on Judicial Independence of the jiwp Association. The principle of judicial independence is one of the fundamental values of the administration of justice. These values include procedural fairness, efficiency, accessibility and public confidence in the courts. In addition, there is a requirement that the fundamental values, including judicial independence should be protected by constitutional provisions, not only by legislative provisions. Federal and Supreme Courts, Constitutional Courts, and other Top Courts world-wide have relied on the Association’s research on judicial independence in their judgments regarding the impartiality and independence of both individual judges and the judiciary as a whole.12 Sometimes the Association is approached by Senior judges asking for materials and books and sources while the cases regarding judges are being considered, and the Association provides the sources expeditiously. The Association brought attention to cases of adverse legislation touching upon judicial independence and the rule of law in different jurisdictions. The jiwp Association believes that the study of judicial independence is significant for all jurisdictions, in that contemporary, detailed debate is required. Equally it is essential to continue to update and revise the Mount Scopus International Standards of Judicial Independence. This is necessary in order to create a modern, comprehensive thorough revision of standards for both national and international judges. In order for standards to remain relevant and 12

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.

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in order to assure that they continue to serve as active and useful guidelines for the substantive protection of human rights and maintain the rule of law, and a healthy economic state, it is critical that they be contemporary, up to date, and fully responsive to the dynamic needs of the economic and political realities. Shimon Shetreet Wayne McCormack

Acknowledgements This volume is the work of the International Project of Judicial Independence of the International Association of Judicial Independence and World Peace, jiwp Association, co-sponsored by University of Cambridge Public Law Centre, the Hebrew University of Jerusalem Faculty of Law and the Harry and Michael Sacher Institute of Legislative Research and Comparative Law. This project on judicial independence has been supported by numerous foundations, academic institutions, and distinguished scholars. We are deeply indebted to the jurists who took part in the four international conferences of judicial independence at the Moscow State University (2014), the University of Osnabruck (2014), the University of Bologna and Bocconi University of Milan (2015), and the Universities of Kozminsky and Osnabruck in Krakow (2016). We wish to express our thanks to the distinguished scholars, judges, and practitioners who have taken part in the adoption and amendments of the Mount Scopus International Standards on Judicial Independence and in the International Project of Judicial Independence. We are also deeply indebted for the academic contributions of the distinguished jurists who take part in this volume. 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. They are the President of jiwp Professor Shimon Shetreet, Vice-Presidents Marcel Storme and Daniel Thuerer, General Secretary and Treasurer Gian Andrea Danuser, and Auditor Professor Hans Hoeffer. We are grateful to our colleagues at the University of Cambridge Christopher Forsyth, Neil Andrews, James Crawford and David Feldman. They helped us in developing the idea to embark upon this latest round of the International Project of Judicial Independence, culminating in the Mt. Scopus Standards of Judicial Independence. This idea was developed during the term of Professor Shetreet 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-sponsored the international project on judicial independence, and we are grateful to them for their support. Special thanks are due to the Sacher Family Trust, which supported the project all along. We wish to express our deep gratitude to Mr. Daniel Jacobson and the Jacobson Foundation at the Hebrew University,

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the Mizock Chair at the Hebrew University Faculty of Law, and the holder of the Chair, Professor Alon Harel, for their support of the project. Special thanks are due to Dean Yuval Shany of the Faculty of Law, Hebrew University, for his continued support of this project. We wish to express our deep gratitude to the universities that have hosted the conferences on judicial independence, the basis for this volume. We wish to thank the Moscow State University, Professor Irina Reshetnikova, Co-Chair of the conference and Dmitry Magonia of the Art de Lex law firm, Chair of the local Organizing Committee, who hosted the eleventh conference in 2014. We also wish to thank Professor Fryderyk Zoll of the University of Osnabruck for hosting the twelfth conference in 2014, Professor Daniela Cavallinli of the University of Bologna and Professor Giuseppe Franco Ferrari of the Bocconi University of Milan for hosting the thirteenth conference in 2015, and Doctor Elwira Macierzynska-Franaszczyk of the Kozminsky University and Professor Fryderyk Zoll of the Osnabruck University for organizing the fourteenth conference in 2016 (with financial assistance from the Polish German Foundation for Scientific Cooperation Project No. 2015–08). Finally, we are grateful to the University of Utah School of Law for their support in the preparation of the manuscript of this volume. Shimon Shetreet Wayne McCormack

Table of Cases A & Others v uk, No 3455/05 [2009] echr 301 163 A v. B [2011] ewhc 2345 (Comm) 256 A v. Sec’y of State for Home Dept., [2004] ukhl 56, 1004 All Eng. Rep. 271 (Dec. 16, 2004) 321 Abd Alla v. Mourssi, 680 N.W.2d 569 (Minn. Ct. App. 2004) 230 aclu v. Clapper, 959 F. Supp. 2d 724 (d.d.c. 2013). 331 Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (d.c.c. 2010) 99 Al-Marri v. Davis, 2012 U.S. Dist. lexis 20558 (D. Colo. Feb. 17, 2012). 330 Al-Marri v. Wright, 534 F.3d 213 (4th Cir. 2008). 329 App. Pen. Mi, Sez. iii, Sent. 15 – 12 – 2010, n. 3688 105 App. Pen. Mi, Sez. iv, Sent. 12 – 02 – 2013 n. 6709 105 Arar v. Ashcroft, 414 F. Supp. 2d 250 (e.d. n.y. 2006) 104 Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009). 329 Arizona v. United States, 567 U.S. __, 132 Sup. Ct. 2492 (2012). 322 Arutzei Zahav v. Tele Event Ltd, 58(6) pd 6, 22–23, 6407/01 [2004] (Isr.). 77 Asahi v. Super. Ct. Calif., 480 U.S. 102 (1987). 332 Atkins v. Virginia, 536 U.S. 304 (2002) 197, 226 Attorney-General (sa) v. Corporation of Adelaide (2013) hca 3 (Austl.) 125 Australian Capital Television Pty Ltd v. Commonwealth (1992) 177 clr 106 (Austl.) 117 Awad v. Ziriax, 670 F.3d 1111 (10 Cir. 2012). 210, 231 Baka v. Hungary, App. No. 20261/12 (Eur. Ct. h.r., May 27, 2014). 16, 38 Bank Mellat v. Her Majesty’s Treasury [2013] uksc 38, [2014] a.c. 700 56 Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134 fcr 334 (Austl.) 122 Bolling v. Sharpe, 347 U.S. 497 (1954) 220 Boumediene v. Bush, 553 U.S. 723 (2008). 328 Bowers v. Hardwick, 478 U.S. 186 (1986). 201, 227 British American Insurance (Kenya) Ltd v. Matelec sal [2013] ewhc 3278 (Comm) 234 Brown v. Board of Education, 347 U.S. 483 (1954) 220, 231 ca 4596/98 Plonit v. The State of Israel, (1) pd 145 [2000] (Isr.). 82 ca 8489/12 Ploni v. Ploni, [2013] (Isr.) 80 Caresse Navigation Ltd v. Office National de l’Electricité [2014] ewca Civ 1366; [2015] qb 366, ca 234 Case 1/58, Stork & Co. v. High Authority of the European Coal and Steel Cmty., 1959 e.c.r. 17 23 Case 29/69, Stauder v. City of Ulm-Sozialamt, 1969 e.c.r. 419 23 Cass. Pen. Sez. i, 24 – 02 – 2014, n. 20447 105

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Cass. Pen., Sez. v., Sent. 19 – 09 – 2012 n. 46340 106 cfh 2401/95 Nachmani v. Nachmani, 50(4) IsrSC 661 [1996] (Isr.). 78 Chen Li Hung v Ting Lei Miao (2000) 3 hkcfar 9. 307 Clark v. Allen, 331 U.S. 503 (1947). 323 Cody v. Murray [2013] ewhc 3448 (Ch) (Deputy High Court judge, Donaldson qc) 237, 248 Coëme v Belgium, 2000-VII Eur. Ct. h.r. 120. 32 Coker v. Georgia, 433 U.S. 584 (1977) 196, 197, 223 Coleman v Power (2004) 220 clr 1 (Austl.) 121 Commonwealth Coatings Corp v. Continental Casualty Co 393 us 145, usa Sup Ct 256 Commonwealth of Australia v. Cockatoo Dockyard Pty Ltd (1995) 36 nswlr 662, nswca 253, 450 Conroy v. Aniskoff, 507 U.S. 511 (1993) 229 Coppée Lavalin nv (sa) v. Ken-Ren Chemicals and Fertilizers Ltd [1995] 1 ac 38, hl 247 Corte Cost., Sent. 11 – 03 – 2009, n. 106 106 Corte Cost., Sent. 19 – 02 – 2014, n. 24 106 Corte Cost., Sent. 21 – 11 – 2011, n. 40 106 cpio (Central Public Information Officer) Supreme Court v. Subhash Chandra Agrawal clxii Delhi Law Times 135 (2009) 372 Cunliffe v. Commonwealth (1994) 182 clr 272 (Austl.) 121 Davis v. Commonwealth, 335 s.e.2d 375 (Va. 1985). 81 De Haan v. The Netherlands, 1997-IV Eur. Ct. h.r. 1392, 1393 (1997). 31 Deutsche Bank ag v. Highland Crusader Offshore Partners lp [2009] ewca Civ 725; [2010] 1 wlr 1023, ca 235 District of Columbia v. Heller, 554 U.S. 570 (2008) 229 Dumrul v. Standard Chartered Bank [2010] ewhc 2625 (Comm); [2010] 2 clc 661 248 El Masri v. The Former Yugoslav Republic of Macedonia, 66 Eur. Ct. h.r. at 87 (2012) 105 El-Masri v U.S., 479 F.3d 296 (4th Cir. 2007) 328 El-Masri v. Republic of Macedonia, echr No. 39630/09, Grand Chamber Judgment (13 December 2012) 139 El-Masri v. Tenet, 437 F. Supp. 2d 530, (d.c. e.d. Va. 2006) 104 El-Masri v. United States, 479 F.3d 296, 300 (4th Cir. 2007). 328 Enmund v. Florida, 458 U.S. 782 (1982) 197, 224 Esso Australia Resources Ltd v. Plowman (1995) 193 clr 10, H Ct Aust 253 European Commission v. Repubblica Italiana, ecj C-379/10 (24 November 2011) 273 Extraordinary Appeal number 466.343 (Plenum of Brazil Supreme Court) 166 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). 332 Findlay v. United Kingdom, 24 Eur. h.r. Rep. 221 (1997). 32

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Fisher v Austria (37950/97) [2001] echr 348 (29 May 2001) 164 Furman v. Georgia, 408 U.S. 238 (1972) 197 Garcia v. De Aldama [2002] ewhc 2087 (Ch) 244 Gayle v. Browder, 352 U.S. 903 (1956) 221 Gotha City v. Sotheby’s, The Times 8 October, 1998 244 Graham v. Richardson, 403 U.S. 365 (1971). 323 Greenspan v. Attorney General, hcj 681/12 [2012] (Isr.). 86 Halabi v. Fieldmore Holdings Ltd [2006] ewhc 1965 (Ch) 247 Hamdan v. Rumsfeld, 548 U.S. 557 (2006) 217, 222 Hamdi v. Rumsfeld, 542 U.S. 507 (2004). 110, 328 Harley v. Smith [2010] ewca Civ 78; [2010] cp Rep 33, ca 240, 244 Helow v Secretary of State for the Home Department [2008] 1 wlr 2416. 374 hksar v. Ng Kung Siu and Another [1999] 3 hklrd 907; (1999) 2 hkcfar 442. 309 Hogan v. Hinch (2011) hca 4; (2011) 243 clr 506 (Austl.) 125 Holmes v. City of Atlanta, 350 U.S. 879 (1955) 221 Howell et al v Millais et al [2007] ewca Civ 720 158 Huscroft v. P & O Ferries Ltd [2010] ewca Civ 1483; [2011] 1 wlr 939, ca 247 Ilgar Mammadov v. Azerbaijan, App. No. 15172/13 (Eur. Ct. h.r. 2014). 42 In re Griffiths, 413 U.S. 717 (1973). 323 International Shoe Co. v. Washington, 326 U.S. 310 (1945). 332 Jivraj v. Hashwani [2011] uksc 40; [2011] 1 wlr 1872, uk Sup Ct 249 Kasparov v. Russia, App. No. 21613/07 (Eur. Ct. h.r. 2013). 40 Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) 222 Kobler v. Republik Osterreich 273 Kudeshkina v. Russia, App. No. 29492/05 (Eur. Ct. h.r., Feb. 26, 2009). 36 Lange v. Australian Broadcasting Corporation (1997) 189 clr 520 (Austl.) 120, 121 Lautsi and others v. Italy echr 30814/06 (18 March 2011) 88, 90 Lautsi v. Italy, echr 30814/06 (March 18, 2011). 24, 88, 90 Law Debenture Trust Corp plc v. Elektrim Finance bv and others [2005] ewhc 1412 (Ch); [2005] 2 All er (Comm) 476; [2005] 2 Lloyd’s Rep 755, Mann J 238 Lawrence v. Texas, 539 U.S. 558 (2003) 201, 226 Lesley McCaughan v. Belwood Homes Limited [2011] NIMaster 11, [2011] Arb lr 53. 237 Levy v Victoria (1997) 189 clr 579 (Austl.) 122 Locobail (uk) Ltd v Bayfield Properties Ltd [2002] qb 451 374 Lumsdon et al. v Legal Services Board et al. [2014] ewca Civ 1276 158 Lutsenko v. Ukraine, App. No. 6492/11 (Eur. Ct. h.r. 2012). 41 Mabo v Queensland (No 2) (1992) 175 clr 1 (Austl.) 123 Marbury v. Madison, 5 U.S. 137, 177 (1803) 212

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Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). 322 Mathews v. Diaz, 426 U.S. 67 (1976). 324 Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955) 221 McGlinn v. Waltham Contractors Ltd [2006] ewhc 2322 (tcc). 243 Medellin v. Texas, 552 U.S. 491 (2008) 217, 222, 327 Melendres v. Arpaio, 989 F. Supp. 2d 822, 825 (D. Ariz. 2013). 322 Missouri v. Holland, 252 U.S. 416 (1920). 216 Mohamed v. Sec’y of State for Foreign & Commonwealth Affairs, [2010] ewca (Civ) 158 (Eng.). 32 Monis v. The Queen (2013) hca 4 (Austl.) 125 Montagnana Case, no. 439, Italy Court of Cassation (1 March 2000) 90 Morrison v. Olson, 487 U.S. 654 (1988) 229 Mulholland v. Australian Electoral Commission (2004) 220 clr 181 (Austl.) 122 Nashiri v. Poland (28761/11) & Husayn (Abu Zubaydah) v. Poland (7511/13), echr (July 24, 2014). 139 Nasser v. United Bank of Kuwait [2001] ewca Civ 556; [2002] 1 All er 401, ca 247 Nationwide News Pty Ltd v. Wills (1992) 177 clr 1 (Austl.) 117–120 nb Three Shipping Ltd v. Harebell Shipping Ltd [2004] ewhc 2001 (Comm); [2005] 1 All er (Comm) 200; [2005] 1 Lloyd’s Rep 509. 237, 238 Nemtsov v. Russia, App. No. 1744/11 (Eur. Ct. h.r. 2014). 40 New Orleans Park Improvement Association v. Detiege, 358 U.S. 54 (1958) 221 Nomura International plc v. Banca Monte dei Paschi Di Siena Spa [2013] ewhc 3187 (Comm); [2014] 1 wlr 1584. 235 Obergefell v. Hodges, 135 S. Ct. 2584 (2015) 227 Odatalla v. Odatalla, 810 A.2d 93 (n.j. Super. Ct. Ch. Div. 2002) 230 Official Journal C176 of 28/07/2006, p.8. 315 Olatawura v. Abiloye [2002] ewca Civ 998; [2003] 1 wlr 275, ca 247 Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005), denied, 547 U.S. 1062 (2006). 328 Padilla v. Yoo, 678 F.3d 748, 750–51 (9th Cir. 2012). 328 Paroline v. United States, 134 S. Ct. 1710 (2014). 134 Pennoyer v. Neff, 95 U.S. 714 (1877). 331 Piersack v. Belgium 8692/79 ECtHR [1982] 269 Plonit v. Department of Health, hcj 4077/12 [2013] (Isr.) 78 Plyler v. Doe, 457 U.S. 202, 205 (1982) 324 Polanski v. Condé Nast Publications Ltd [2005] ukhl 10; [2005] 1 wlr 637, hl 243 Porter v Magill [2002] 2 ac 357 374 Procola v. Luxembourg, 326 Eur. Ct. h.r. (ser. A) (1995). 30 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 272 374

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ra Magistrate’s Ct. (Petach Tikwa), The State of Israel v. Patrick 5247-02-10 [2011] (Isr.). 85 Re Medicaments and Related Classes of Goods (No.2) [2001] 1 wlr 700 374 Refah v. Turkey, echr 41340/98 164 Regan v. The Ministry of Transp., [2010] (Isr.). 84 Regan v. The Ministry of Transp., hcj 746/07 [2011] (Isr.) (Nevo). 83 Revision numbers 349.703 and 466.343 judged by the Plenum of the Brazil Supreme Court, as well by the Habeas Corpus number 87.585, published on June 26th, 2009. 166 Roper v. Simmons, 543 U.S. 551 (2005) 225 s.d. v. m.j.r., 2 A.3d 412 (n.j. Super. Ct. App. Div. 2010) 229 Sec’y for Justice v. Man Kwong Choi, [2008] 5 h.k.l.r.d. 519 (h.k.). 134 Secr’y of State for Home Dept. v. af (2009) 321 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1963). 320 Sherif Ben Nasser v. Banque Nationale de Paris et Credit Lyonnais ca, Paris, Oct 14, 1993, Paris Cour d’Appel 256 Simmons v. Roper, 543 U.S. 551 (2005). 198 Sonera ab v. Hilcourt (Docklands) Ltd [2003] ehwc 3540. 237 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). 215 South Africa v. Mamabolo 2001 (3) sa 409 (cc) (S. Afr.) 57 Stanford v. Kentucky, 492 U.S. 361 (1989) 197, 225 Stell v. Savannah-Chatham County Board of Education, 220 F. Supp. 667 (n.d. Ga. 1963), rev’d, 333 F.2d 55 (5th Cir. 1964) 221 Sugarman v. Dougall, 413 U.S. 634 (1973). 323 Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (d.c. Cir. 1984) 214, 332 The Paquete Habana, 175 U.S. 677, 700 (1900). 205 The Public Committee Against Torture in Israel v. The Government of Israel, hcj 769/02 [2006] 96 Thompson v. Oklahoma, 487 U.S. 815 (1988). 197, 224, 226 Tr. Pen. Mi, Sez. iv, Sent. 4 – 11 – 2009, n. 12428 (Tribunale di Milano) 106 Traghetti del Mediterraneo Spa v. Repubblica Italiana, ecj C-173/03 (13 June 2006) 273 Trop v. Dulles, 356 U.S. 86 (1958) 195, 197, 222 U.S. v. Alvarez-Machain, 504 U.S. 655 (1992). 327 United States v Belfast, 611 F.3d 783 (11th Cir. 2010). 139 United States v. Alvarez-Machain, 504 U.S. 655 (1992). 217 United States v. Clark, 435 F.3d 1100 (11th Cir. 2006). 133, 326 United States v. Ghailani, 751 F. Supp. 2d 502 (s.d.n.y. 2010). 327 United States v. Harvey, 2 F.3d 1318 (3d Cir. 1993). 326 United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009) 326 United States v. Runyan, 290 F.3d 223 (5th Cir. 2002). 134, 326

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United States v. Klein, 80 U.S. 128 (1872). 210 United States v. Layton, 509 F. Supp. 212, 214–15 (n.d. Cal. 1981). 327 United States v. McCullagh, 221 Fed. Rep. 288 216 United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997). 327 United States v. Shauver, 214 Fed. Rep. 154 216 United States v. Yousef, 927 F. Supp. 673 (s.d.n.y. 1996). 327 United States v. Yunis, 288 U.S. App. d.c. 129, 924 F.2d 1086 (d.c. Cir. 1991) 327 Volkow v. Ukraine, App. No. 21722/11 (Eur. Ct. h.r., Jan. 9, 2013). 37 Wik Peoples v. Queensland (1996) 187 clr 1 (Austl.) 123 World-Wide Volkswagen v. Woodson, 444 U.S. 286 (1980). 332 Wotton v. Queensland (2012) hca 2; (2012) 246 clr 1 (Austl.) 125 Yeung May Wan and Others v hksar [2005] 2 hklrd 212. 304 Yoav Yitzhak v. Aharon Barak President of the Supreme Court, hcj 1622/00, 54(2) P D 54 371, 377, 415 Youngblood v. Board of Public Instruction, 230 F. Supp. 74 (n.d. Fla. 1964) 221 Yukos Capital Sarl v ojsc Rosneft Oil Co [2012] ewca Civ 855; [2013] 1 All er 223; [2012] 2 Lloyd’s Rep 208, ca (for later proceedings, 242, 249 Yukos Capital Sarl v ojsc Rosneft Oil Co [2014] ewhc 2188 (Comm); [2014] 2 Lloyd’s Rep 435; 155 Con lr 221, Simon J 242, 249 Zadvydas v. Davis, 533 U.S. 678 (2001). 321 Zschernig v. Miller, 389 U.S. 429 (1968). 323

Table of Statutes

Albania

Albania Constitution 174 Law on Functioning of Constitutional Court 174 School of Magistrates, Law No. 8136 174



Australia

Broadcasting Act 1942 (Cth) (Austl.) 118 Council of Chief Justices of Australia, Guide to Judicial Conduct (2002) 371 Industrial Relations Act 1988 (Cth) (Austl.) 118 Political Broadcasts and Political Disclosures Act 1991 (Cth) (Austl.) 118



Austria

Austrian Act governing the Service of the Judiciary Act (Richter- und Staatsanwaltschaftsdienstgesetz) 269 Austrian Civil Procedure Code (Zivilprozessordnung) 263 Austrian Judicature Act (Jurisdiktionsnorm) 265 Enforcement Act (Exekutionsordnung) 268 Introductory Law for the Civil Procedure Code (Einführungsgesetz zur Zivilprozessordnung) 263 Introductory Law for the Judicature Act (Einführungsgesetz zur Jurisdiktionsnorm) 263 Private International Law Act (Gesetz über das internationale Privatrecht) 263



Brazil

Brazil Constitution 166



Canada

Canadian Judicial Council, Ethical Principles for Judges (1998) 371

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Conventions and Treaties

European Convention on Human Rights, Art. 14  European Convention on Human Rights, Art. 4 132 European Convention on Human Rights, Art. 6(1). 70 European Convention on Human Rights, art. 6. 26 European Covenant of Human Rights 89 Geneva Conventions 110, 113 International Convention for the Suppression of the Financing of Terrorism, art. 2(1)(b). 137 International Covenant on Civil and Political Rights, art. 14. 26 Pact of San Jose 166 Treaty of Amsterdam, Oct. 2, 1997, 1997 o.j. (C 340) 23 Treaty of Lisbon, Dec. 17, 2007, 2007 o.j. (C 306) 24 Treaty of Nice, Feb. 26, 2001, 2001 o.j. (C 80) 23 Treaty on European Union, Feb. 7, 1992, 1992 o.j. (C 191) 23 United Nations Convention against Transnational Organized Crime 130 United Nations Convention against Transnational Organized Crime, Palermo Protocol 325 Universal Declaration of Human Rights 334 Universal Declaration of Human Rights, art. 10 26



European Union

eu Arbitration Convention 315



Hong Kong

Hong Kong Bill of Rights Ordinance (Cap. 383) ? Hong Kong Court of Final Appeal Ordinance (Cap. 484) (hkcfao) 298, 299 Immigration Ordinance (Cap. 115) 299 Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong (Joint Declaration) 286, 302 Supreme Court Ordinance (Ordinance No. 15 of 1844) (Hong Kong) 283 Supreme Court Ordinance (Ordinance No. 2 of 1846) 283 Supreme Court Ordinance (Ordinance No. 6 of 1845) (Hong Kong) 283 Supreme Court Ordinance 1873 281

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Supreme Court Ordinance 1975 295 The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Basic Law) 298, 302



Israel

Egg Donation Law of 2010 (Israel) 78 Public Health Regulations (Sperm Bank) of 1979 (Israel) 78



Italy

Constitution of 1948 65–66 Criminal Code of 1930 (Royal Decree no. 1398 of 1930) 63 Criminal Procedure Code of 1930 (Royal Decree no. 1398 of 1930) 63 Law 13 April 1988, no. 117 “Risarcimento dei danni cagionati nell’esercizio delle funzioni giudiziarie e responsabilità civile dei magistrati” (En. Compensation for damages due to judicial activities and civil liability of magistrates), as amended by law no. 18/2015 (Italy) 273 et seq. Statute no. 117 of 1988 65 Statute no. 5825 of 1888 61 Statuto Albertino (Constitution) of 1848 62



New South Wales

Legal Profession Act 2004 (nsw) 245 s 24A(2), Commercial Arbitration Act 2010 (nsw) 245



New Zealand

s 14, Arbitration Act, 1996 (nz) 254



Russia

On Status of Judges, Law of the Russian Federation 148, 149

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Standards and Codes

aba, Model Code of Judicial Conduct 129 Int’l Commission of Jurists Standards 129 Mt. Scopus Standards of Judicial Independence 129 Mt. Scopus Standards of Judicial Independence 164



United Kingdom

Constitutional Reform Act 2005 48, 52, 53 Constitutional Reform Act 2005 (uk) 159, 160 Guide to Judicial Conduct (uk Supreme Court) (2009) 371, 374, 375, 376, 377 Human Rights Act 1998 48, 55 rule 25.13(2)(a), Civil Procedure Rules (1998) (England and Wales) ? s 2(1), Foreign Limitation Periods Act 1984 (England and Wales) 244 s 36, Arbitration Act 1996 (England, Wales, and Northern Ireland) 245 s 38(3), Arbitration Act 1996 (England, Wales, and Northern Ireland) 247 s 41(5), Arbitration Act 1996 (England, Wales, and Northern Ireland) 247 Schedule 1, Human Rights Act 1998 (uk) 247 ss 49 and 48, Arbitration Act 1996 (England, Wales, and Northern Ireland) 237 Tribunals, Courts and Enforcement Act 2007 (uk). 71



United States

U.S. Const., Art iii. 71 8 u.s.c. § 1157(a)(1). 321 8 u.s.c. § 1157(b). 322 8 u.s.c. § 1158 322 8 u.s.c. § 1231(a)(6) 321 10 u.s.c. § 836 217 10 u.s.c. §§ 1801–1862 331 18 u.s.c. §§ 1581–1596. 133 18 u.s.c. §§ 1589–1596. 325 18 u.s.c. § 2331 138 18 u.s.c. § 2332b 138 18 u.s.c. § 2333 215 18 u.s.c. §§ 2241–2248 325 18 u.s.c. §§ 2241–2248. 133

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18 u.s.c. §§ 2251–-2260A 326 18 u.s.c. §§ 2251–2260A. 133 22 u.s.c. § 2656f(d) 138 28 u.s.c. § 1350 213, 332 28 u.s.c. § 1603 333 28 u.s.c. § 1605(a)(7). 215 Alabama Const. art. i, Section 13.50 231 Arizona Rev. Stat. § 12-3103 231 Authorization for Use of Military Force, Pub. L. 107-40 (2001) (us) 98, 110 California Code of Judicial Ethics 371 Code of Conduct for United States Judges 370 Florida Const. art. v 343 Kansas Stat. § 60-5103 231 Louisiana Rev. Stat. § 9:6001 231 Mississippi Code § 11-63-1 231 Note to 18 u.s.c. § 1350. 333 Oklahoma Stat. tit. 12, § 20 231 South Dakota Codified Laws § 19-8-7 231 Tennessee Code § 20-15-103 231 Trafficking Victims Protection Act 338

List of Contributors 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. Daniela Cavallini Professor at Bologna University (School of Political Science) and a lawyer. She teaches “Organization of Italian Judicial system” and her main research interests and publications are in the field of judicial reforms, access to justice, judicial independence and accountability, role of Supreme courts, specialization of judges. She actively collaborates with the Research Institute on Judicial Systems of the Italian National Research Council (Irsig-Cnr), with the Law School in Bologna, where she also teaches “General procedural law,” and with the Rivista trimestrale di diritto e procedura civile (a national review on civil law and procedural law). She participated in several Italian and international research projects in the justice area. Jonathan Entin David L. Brennan Professor of Law, and Professor of Political Science, Case Western Reserve University School of Law since 1984. He clerked for Justice Ruth Bader Ginsburg (when she was on the U.S. court of Appeals) and practiced in Washington with Steptoe & Johnson. The recipient of several teaching awards and a former co-editor of the Journal of Legal Education, he is at work on a book about equal protection. Lin Feng Professor Lin Feng, llb (Fudan, Shanghai), 1987, llm (Victoria, Wellington), 1992, Ph.D (Peking U, Beijing), 1998; Professor, School of Law, City University of Hong Kong; Associate Dean; Director of the Centre for Judicial Education and Research; Director of the Centre for Chinese and Comparative Law; Co-Editorin-Chief, Asia Pacific Law Review; Barrister, England & Wales (non-practicing), and Hong Kong Special Administrative Region; member, Law Reform Commission, hksar; Councilor, China Law Society. He was a visiting scholar to the East Asian Legal Studies Centre of the Harvard Law School in the Fall semester 2010. He is a guest professor at the Research Institute of Constitutionalism

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and Rule of Law of the Faculty of Law of Renmin University. Professor Lin’s research interests include comparative constitutional law, administrative law, and environmental law. He has written extensively on Chinese constitutional law, administrative law, and Hong Kong Basic Law. He has published 5 books, more than 60 journal articles and book chapters in those areas. Giuseppe Franco Ferrari 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). Ada Pellegrini Grinover Full Professor of procedural law at the University of São Paulo (Brasil), Doctor “Honoris causa” by the University of Milano (Italy), Vice-President of International Association of Procedural Law, Vice-President of Ibero-American Institute of Procedural Law, Honorary President of Brazilian Institute of Procedural Law, Author of 24 scientific books and many articles published in Brazil and abroad. Yitzhak Hadari Professor of tax law, multinational enterprises and corporate reorganization. served until 2013 a the Chairman of the Tax Committee of the Israeli bar Association. He is the author of seven-volume (2d ed. and 3d ed.) Taxation of Capital Gains of Real Estate (Hebrew). and of some 60 articles in leading international and Israeli periodicals and books. He was co-chairperson of the Committee for Drafting the Bill of Israeli Tax Reform of 1975, and has been a member of several public committees, including the Experts Committee on Corporate Tax Free Reorganization, Reform Committee of Corporate Reorganization, Advisory Committee to the National Economic Planning Authority, and Public Committee for the Shares of Bank Hapoalim. The recipient of the Israel Minister of Justice and Minister of Finance Tribute, he graduated with an ll.b. and ll.m., summa cum laude, from Hebrew University, and an ll.m. and s.j.d. from the University of Michigan. Prof. Hadari has been a visiting

List Of Contributors

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distinguished professor at the University of Oklahoma Law Center, visiting professor at Stanford and Northwestern Law Schools, and visiting scholar at the University of Michigan Law School, New York University School of Law, University of California (Boalt Hall) at Berkeley, and University of London’s Institute of Advanced Legal Studies. Justice Esther Hayut Justice of the Israel Supreme Court, appointed permanent Justice May 2004; Appointed Acting Justice of the Supreme Court, March 2003; Appointed permanent Judge of the Tel Aviv District Court, September 1997; Appointed Acting Judge of the Tel Aviv District Court, October 1996; Appointed Judge of the Tel Aviv Magistrates’ Court, March 1990; Worked as a partner at the law firm of Hayut, Zilberberg, and Co. specializing mainly in civil law, 1985–1990; Admitted to the Israeli Bar Association, 1978; Completed her two-year clerkship in the law firm of Haim Tzadok, former Israeli Minister of Justice, 1976–1978; Completed her legal studies at the Tel Aviv University Faculty of Law, 1977; Served in the Israeli Defense Forces, 1971–1973. Hoong Phun (“hp”) Lee 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). Judge George W. Maxwell iii Circuit Judge, 18th Judicial Circuit, Florida. In addition to serving over seventeen years on the Circuit bench, Judge Maxwell has over twenty years of experience as a board certified trial attorney in private practice. He also holds the position of adjunct professor at the Florida Institute of Technology where he teaches Introduction to Law. Wayne McCormack 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. 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

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List of Contributors

Commission of Judges of the Russian Federation. Academic interests – judicial control over legal acts, judicial evidence, bankruptcy legislation. Walter Rechberger Former Full Professor (Ordinarius) of Law at the Vienna University School of Law and former head of the Department of Civil Procedure (Institut für Zivilverfahrensrecht). He is a member of the Council of the International Association of Procedural Law and holds the degree of an honorary doctor of the University of Pècs, Hungary. Shimon Shetreet llb, llm, Hebrew University, mcl, dcl 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 is the President of the International Association of Judicial Independence and World Peace (www.jiwp.org), member of the Royal Academy of Arts and Science of Belgium, President, International Culture of Peace Project. 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), Justice in Israel (1994), Women in Law (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), Judges on Trial: Independence and Accountability of the English Judiciary with Sophie Turenne (2013), and Culture of Judicial Independence: Rule of Law and World Peace (2014). 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 Prof. Shetreet together with Prof. Christopher Forsyth is the head of the International Project on Judicial Independence which has held 14 international conferences. Prof. 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).

List Of Contributors

xxxv

In December 2010 Prof. Shetreet was awarded the International Jurists Award 2010 together with Lord Judge, Chief Justice of England and Wales. He delivered many keynote Lectures, and held many visiting positions including Herbert Smith Visiting Professor, University of Cambridge 2008, 2010, Senior Academic Visitor, Clare College 2010; Delivered the KK Nambyar Lecture 2009 New Delhi and Chenai, India; Delivered the Human Rights Day Keynote Speaker Indian Human Rights Association New Delhi December 2010; Delivered the 10th Fiat Justizia Lecture, February 2013, Monash University Faculty of law, Melbourne, Australia; Delivered the Kanter Lecture of Interfaith, Old Dominion University, October 2008; Visiting Professor of Law, City University of Hong Kong, February 2013; Visiting Professor, Center of Jewish Studies University of Potsdam and Abraham Geiger Kolleg Berlin Spring 2013; Visiting Professor of Law Fall 2008, 2011, University of San Diego; Visiting Distinguished Scholar of Comparative Law, University of San Diego, Fall 2013; Visiting Professor, Old dominion University, Fall 2009, Fall 2010; Visiting Professor, Owens Chair of Middle East Studies, University of Utah, Spring 2014. Marcel Storme Director of Institute Procedural and European Law. He has graduated 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. Jennifer Temkin Professor of Law at City University London. She is the author of Rape and the Legal Process (oup, 2002), Sexual Assault and the Justice Gap : A Question of Attitude (Hart Publishing 2008,with Barbara Krahe) and numerous articles in major legal journals. She was a member of the Home Office Advisory Group on Video-Recorded Evidence (the Pigot Committee, 1988–1989) which was responsible for introducing major changes to the way child witnesses are treated in court, a member of the Justice Committee on Sexual Offences Law Reform, 1998, and a member of the External Reference Group, Home Office Sex Offences Review 1999–2000 which was responsible for major changes to the law on sexual offences in England and Wales. She is now a member of the National dna Database Ethics Group, a Home Office sponsored non-departmental public body. She is a Fellow of the Academy of Social Sciences and a Bencher of the Middle Temple.

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List of Contributors

Sophie Turenne 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. Teuta Vodo eu Policy Researcher for a Political Party in the European Parliament in Brussels. She holds a PhD from the Universite libre de Bruxelles. She has worked at the Department of Political Science as a Research and Teaching Assistant at Universite libre de Bruxelles from 2010 to 2014. She has been an Academic Researcher in the Center for Socio-Legal Studies in Oxford University in 2012. Her research interests lie in the fields of constitutional studies, law and courts, political and social analysis of rule of law and judicial reforms. Arianna Vedaschi (Ph.D.) 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 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 written widely in constitutional and comparative public law with emphasis on counter-terrorism measures and human rights. She was 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. Dr. Hab. Fryderyk Zoll Professor at the Jagiellonian University in Cracow. Mercator Professor at the University of Osnabrück (from 1.10.2010). Member of the International Academy of Comparative Law. Member of the Acquis Group on the Existing ec Contract Law. Director of the Centre for the Foreign Law Programs at the Jagiellonian University. Head of the Curriculum Team for the National School of Judiciary. Graham Zellick cbe qc ma PhD lld lhd DLit FAcSS, Barrister, is Emeritus Professor of Law in the University of London, Honorary Fellow of Gonville & Caius College, Cambridge and the Society for Advanced Legal Studies, and Master of the

List Of Contributors

xxxvii

Bench and former Reader of the Middle Temple. He has been an academic lawyer (professor of public law, law school dean, editor of Public Law), university president (including the University of London), public servant (Chairman of the Criminal Cases Review Commission, Electoral Commissioner) and holder of judicial office (tribunal president and member of four other tribunals).

Part 1 Judicial Independence: Globalised Legal Culture

∵

chapter 1

Introduction The work of the International Project of Judicial Independence of the International Association of Judicial Independence (jiwp Association), which in the last decade has been co-sponsored by the Hebrew University Faculty of Law and the University of Cambridge Public Law Centre, has produced by now four volumes on judicial independence, the present one being the fourth one in this series of books. These four volumes are in addition to numerous other publications that the members of the project have published. In the previous three volumes on judicial independence,1 and in this v­ olume Culture of Judicial Independence in a Globalised World as in the other publications, and in the international standards they authored,2 the members of the jiwp Association have introduced innovative concepts of judicial 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 four decades through major international conferences involving major important international organizations, and the drafting of international standards and declarations. The concepts developed 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 visa-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 the last four decades, the Association and its members have contributed to the advancement of the rule of law and world peace through its p ­ romotion 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); Shimon Shetreet, Editor, The Culture of Judicial Independence: Rule of Law and World Peace (Brill – Nijhoff 2014). 2 Mount Scopus International Standards, Judicial Independence Appendix 1, this Volume Part 7,; The Montreal Declaration, Appendix 4, Id.; and the New Delhi Code of Minimum Standards of Judicial Independence, Appendix 3, Id.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_002

4

Introduction

of an independent judiciary. The Association has devoted itself to the promotion of judicial independence and rule of law by organizing conferences and conducting studies and research, by publishing volumes on ­judicial ­independence, by drafting and revising international standards of judicial independence, by popularizing the concept of judicial independence, and by increasing society’s understanding of the links between judicial independence and democracy, rule of law, liberty, justice and peace. The various conferences held during the last decade focused on many aspects of judicial independence, rule of law, and world peace and they were conducted in different parts of the globe. International law plays a significant role in creating the culture of judicial ­independence in domestic law. Prof. Shetreet has elsewhere described this process as the normative cycle of the international and national law in the area of judicial independence.3 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). International law influences domestic law by virtue of international human rights treaties, which provide for principles of fair procedures and for the right to be tried before an impartial and independent tribunal. In addition to international treaties, there are international standards, which non-governmental and academic study groups have developed. One such important example is the Mt. Scopus International Standards on Judicial Independence (“Mt. Scopus Standards”).4 This volume is divided into seven parts: Judicial Independence: Globalised Legal Culture; The Challenge of Careful Drawing of Boundaries of Judicial Function; Judicial Independence and Accountability: Contemporary Analysis; Domestic Courts and Foreign Elements: Foreign Parties, Foreign Law and Foreign Judges; Judicial Attitude towards “Others” in Domestic Courts; and lastly, Recent Amendments to the Mt. Scopus International Standards of Judicial Independence. In Part 7 the book offers four appendices: Mt. Scopus International Standards of Judicial Independence – Consolidated Version of International Project 3 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). 4 Mt. Scopus International Standards of Judicial Independence (Mar 19, 2008), as amended, ­Appendix 1, Part 7 of this volume.

Introduction

5

of Judicial Independence of the International Association of Judicial Independence and World Peace; Global Code of Judicial Ethics – International Project of Judicial Independence of the International Association of Judicial Independence and World Peace jiwp; The New Delhi Code of Minimum Standards of Judicial Independence (adopted by the iba New Delhi Convention 1982); and finally the Montreal Universal Declaration on The Independence of Justice. Part i Judicial Independence: Globalised Legal Culture Part 1 focuses on judicial independence as a globalised legal culture. This part deals with a number of central issues relative to judicial independence and contains chapters by Shimon Shetreet, Marcel Strome, Sophie Turenne, ­Giuseppe Ferrari, and Graham Zellick. Chapter 1 is the general introduction. Chapter 2 by Shimon Shetreet analyses the Impact of International Law on Judicial Independence in Domestic Law and examines in detail the ­jurisprudence of the European Court of Human Rights. The transnational jurisprudence and international treaties have an important impact on judicial independence in international law and domestic law. The European Convention on Human Rights (echr) united Europe as the Council of Europe, and set up The European Court of Human Rights (ECtHR). The ECtHR did not just influence the European countries separately, but all the European countries as one entity. Its jurisprudence has had a significant impact on the development and the maintenance of Judicial Independence in recent decades. In addition to the legal regime of the European Convention on Human Rights there is also the legal regime of the European Union. The transformation of the European Union from an economic union to a union grounded in a shared set of values of human rights, democratic values, and humanist and religious heritage is the product of an important development that took place in the Human Rights discourse of the European Union. It was both on the treaty level and the level of judicial jurisprudence. Professor Shetreet examines the Impact of European Court of Human Rights on this development in recent years. He points out the differences between the jurisprudence in the earlier cases dealing with Western European countries, and then the later cases in Eastern European countries. In addition, the chapter offers examples of domestic European jurisprudence and other jurisdictions that demonstrate the importance of an effective way to ensure judicial independence.

6

Introduction

Chapter 3 by Marcel Storme points out that legal standards are often the result of an open discussion of lawyers in an audience where a persuasive consensus about the content and formulation of legal rules can be reached. The International Association of Judicial Independence and World Peace has attempted for more than 30 years to establish a sense of community around independence of the judiciary. The Mount Scopus Standards of Judicial Independence are an effort to ensure that justice can be counterpoised with law. The dream of independent judiciaries around the world is still one that needs to be realized. He asserts that all citizens of the world should have access to an independent judiciary everywhere. Chapter 4 by Sophie Turenne describes a comprehensive program of reform that started in England and Wales with the Human Rights Act in 1998, and other reforms followed at the turn of the century. Thus in the Constitutional Reform Act 2005 (cra) the long-standing convention that government ministers must uphold the continued independence of the judiciary was formalized. Since the cra, the Lord Chancellor is no longer also the Head of the judiciary; he is now a pure politician, and a member of the House of Commons, and only in the view of the Prime Minister does he need to be qualified. Under the cra, judges are now appointed by an independent commission (the Judicial Appointments Commission); judicial discipline is now monitored by an independent body, the Judicial Conduct Investigations Office (formerly the Office of Judicial Conduct); and the highest court of appeal, also a quasi-federal court for the UK, is now housed separately from the higher chamber of the legislature. As a consequence of these reforms, judicial independence and judicial accountability in the English context are more closely intertwined. Judges are not only accountable for their individual decisions by way of appeal and review, they must also, as a collective, deliver justice in a timely and efficient manner. Judicial independence and judicial accountability are two sides of the same coin. Judicial accountability can be achieved in tension with judicial independence, not at the detriment of judicial independence. Chapter 5 by Giuseppe Ferrari starts from the premise that judicial independence is conditioned by several factors, such as the clarity of statutes, the regulation of conflicts of interests, the capacity of access of groups to justice, the treatment of retired judges, the measure of creativity allowed by the judicial system, special knowledge of some specialized courts, the accountability of judges, the constitutionality of acts of indemnity, the structure of the ­career of judges and prosecutors, the role of the bar and the legal profession, the ­existence of a system of appeals as of rights, and many others. Another factor influencing its concrete implementation is history: in the Italian case, the complexity of the historical evolution of the judiciary has strongly influenced

Introduction

7

the status itself of judges and prosecutors. It is not hard to understand why the founding fathers of the Republic at the Constituent Assembly of 1946–47 did not trust the Judiciary at all. Therefore, they decided, first of all, to create a new Constitutional Court, and included in the constitutional text all the most efficient guarantees in order to protect the independence of the judicial body. Switching from the formal text of the Constitution, or from the law in the books, to the law in action, some conditions, which have gradually come to existence in the last four decades, could jeopardize the independence of the Judiciary as a whole and of individual judges and prosecutors. These factors include political appointments to the judiciary, compulsory criminal prosecution, failings of criminal procedure rights, and the length of civil suits. Chapter 6 by Graham Zellick deals with an interesting phenomenon of increasing importance. All countries have a court system. Most (if not all) also have a parallel system of court-like bodies that adjudicate on a range of specialized disputes, usually between the citizen and the administration. These bodies have a variety of labels: they may be called tribunals or even courts. They may be presided over by someone called a judge. In some, the decisions may be appealed to or otherwise challenged in the ordinary courts; in others, any appeal or challenge is restricted to another (albeit superior) body outside the ordinary court system. He foresees further convergence between tribunals and courts in Britain and eventually a single, unified system of adjudicative bodies, all styled courts, but with bespoke membership and procedures designed for the work assigned to them. There would be a single system of civil justice composed of courts of general jurisdiction and of special jurisdiction. Those countries which still embed their arrangements for so-called administrative justice within their administrations could learn much from these developments in the uk, but whatever system is in place, the bodies charged with deciding these disputes must without qualification enjoy the independence that is associated with the judiciary in free and ­democratic societies. Part ii The Challenge of Careful Drawing of Boundaries of Judicial Function This Part contains chapters by Justice Esther Hayut, Daniela Cavallini, Arianna Vedaschi and H.P. Lee. Chapter 7 by Justice Esther Hayut borrows from Hobbes the idea that rules are required because without rules that determine what behavior is permitted and which is prohibited, people would exist in a state of constant war, an

8

Introduction

e­ xistence described as a war of “all in all,” in which the person lives a short, ­bestial and lonely life in constant fear of death by force. The law consists of a set of rules that incorporates almost all aspects of our lives and is designed primarily to protect the individual from harm and injustice done to him. There are new realities, like the development of technology and medicine, which have not yet been addressed by the law. In the absence of legal directions, it can be difficult for us as judges to handle problems or conflicts created as a ­result of that new reality. And there are issues that the law chooses not to deal with, such as moral rules for which the law chooses not to impose such commands A third situation that demonstrates the boundaries of the law and its limitations are situations in which we are limited in using the law because of rules the law itself set. These rules at times make us judges feel very frustrated because of the deep contrast that is created between the result that we think will do justice under the circumstances, and the inadequacy of the Court to reach it. Chapter 8 by Daniela Cavallini tells the “story” of the crucifix, promoted by an Italian citizen of Finnish origin, which she says shows how strong the historical and cultural legacy can be in judicial decision-making activity and how the judge can be “creative” in his/her role (in the interpretation of the law). This leads to some concrete ideas concerning access to justice and the capacity of the courts to attract applicants from different cultures. The echr Grand Chamber held that “the decision whether crucifixes should be present in State-school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State.” Then different courts in Italy reached different conclusions about whether the crucifix should stay or go in public places. If one considers the court as an organization offering services to potential customers, the questions are: do the “services” provided for by the courts take into consideration people of different cultures? Are they responsive to people from diverse communities? Courts are more and more operating in a multicultural context. People are multilingual, multicultural and religiously diverse. Such diversity will inevitably mirror in the litigants going to court. Chapter 9 by Arianna Vedaschi critiques the wide effort in implementing effective counter-terrorism measures, made by the United States of America and its allies in the aftermath of 9/11, which has raised a number of major ­critical issues from a constitutional point of view, and with specific regard to human rights. Within the extensive set of policies and practices, adopted over more than a decade of struggle against militant Islamic extremism, so-called targeted killings and extraordinary renditions certainly represent the most controversial and criticized ones. She analyzes these two practices under different legal paradigms: the criminal law model, which includes international terrorism in

Introduction

9

the wider category of organised crime and aims at preventing terrorist attacks and punishing the perpetrators of terrorist attacks by means of law enforcement operations, criminal investigations and trials, and the war model, which considers terrorist attacks as acts of war and terrorists as enemies to be defeated by means of lethal force. From the latter perspective, this paper aims at showing how even the war model, adopted by the United States since 9/11, does not seem broad enough to justify the current scenario of the fight against international terrorism, dangerously drifting towards a “global war,” whose limits – if they do exist – are difficult to determine. A stronger and established cooperation at the regional level could represent a solid and reliable foundation on which to build a wider international network of Countries, committed to fighting jihadist terrorism within a criminal law paradigm, without necessarily resorting to the use of military force. In this context, the United Nations should play a new central role, in developing ad hoc instruments to formalise interregional cooperation and ensure democratic States the operational capacity to pursue jihadist terrorists beyond national and regional borders. Chapter 10 by H.P. Lee explores how the Australian High Court, against the backdrop of a Constitution which does not contain the equivalent of a full blown Bill of Rights, developed a fundamental guarantee referred to as the implied right of political communication. That development received polarised reaction at its early conception. The vigorous attacks launched against the Court’s engagement with judicial creativity based the attacks on the claim of an incursion into the territory of parliamentary sovereignty and questioned the legitimacy of the Court regarding this development. In that same period the verbal onslaught on the Court became more severe in the wake of judgments rendered in two major cases concerned with ‘native title.’ The concerns that criticisms of such judicial creativity would somehow diminish the stature of the Court and undermine its independence have never been borne out. Part iii Judicial Independence and Accountability: Contemporary Analysis This Part contains chapters by Wayne McCormack, Sergey Nikitin, Fryderick Zoll, Jennifer Temkin, Shimon Shetreet, Ada Pellegrini Grinover and Teuta Vodo. Chapter 11 by Wayne McCormack observes that international substantive norms proscribe many threats to human life and dignity. Although each is ­“illegal” under a variety of international customs and covenants, there is

10

Introduction

a­ bsolutely no international enforcement worthy of the name. In the absence of enforcement power, speaking of judicial independence in transnational norms is almost meaningless – not entirely, because courts are able to articulate and explicate norms. But the very concept of a judiciary implies a Role of Law that is enforceable by legitimate power, not just aspirational compliance. McCormack explores implications of enforcement gaps for judicial independence, for both domestic courts and international tribunals. Even the World Justice Project, which devotes substantial energy to the Rule of Law, merely insists on “regulatory enforcement” and that the “criminal justice system be effective,” with no mention of enforcement for the judiciary. If we lived in a utopian world, then there would be no need for government enforcement, no need for police forces, and no need for courts. But the whole point of government is to force compliance or punish those who do not comply. Government has a monopoly on the legitimate use of force for the very reason that not all people will avoid harming others in the absence of a dominant force. Chapter 12 by Sergey Nikitin discusses conflicts of interest in the appointment of judges. A conflict of interest is a well-known factor which may mandate the exclusion of a judge from participating in a particular case. At the same time, during the judicial selection process, factors which can prevent the appointment of a candidate can be detected because of the potential conflict of interest. In the event that such a candidate is appointed, the probability that a conflict of interest will occur is very high, or may even become inevitable. Meanwhile, the Russian collegium of judges that selects judicial candidates sometimes faces situations which can be classified as a conflict of interest. Legislation concerning potential disqualification of judicial candidates could be extended to restrict the relatives of candidates from accepting positions as judges. The law should explicitly define which posts cannot be taken by relatives, and define the degree of relationships which fall under this rule. Chapter 13 by Fryderick Zoll observes that the Themis has covered eyes. The fact that the person appearing in the courtroom is “different” and distinguishes her or himself from the judges and lawyers should not play a role in the way that justice operates. The nationality, ethnicity, and features usually attributed to race, should not influence the judge’s attitude towards the person before the court. Sometimes, it is necessary to provide additional support in order to facilitate the participation of such persons in the legal process, mostly due to their inability to speak the language in which the procedure is conducted. All over the world, we are experiencing a societal lack of tolerance towards those who are different from the dominant mainstream culture. From a purely anthropological perspective, a fear of strangers is an archaic defence mechanism. On a theoretical level, modern societies tend to treat the discrimination against

Introduction

11

“others” as malicious and reprehensible. In practice, however, there exist many different biases against people who come from a different culture. These biases may influence not only judges but the entire apparatus of the justice system. Even after their appointment, judges remain members of their community, and as such, they may never be completely free of the biases of their society. But a judge can still act independently, if or she makes the conscious decision to remain unaffected by discriminatory motives. Chapter 14 by Jennifer Temkin looks at the role of the legal profession in ensuring judicial independence. The rule of law requires both a fearless and independent judiciary and a fearless and independent legal profession. It is possible to have an independent profession in situations where the judiciary is subservient to the State or other interests. It is less likely to have an independent judiciary alongside a legal profession that is not independent, but it is theoretically possible. It is immaterial whether the judges are improperly influenced by the government, by corruption or other external forces, or even if they habitually render decisions congenial to the government not because of any pressure, direct or indirect, implicit or explicit, but because of their mindset and inherent partiality. All compromise judicial independence and corrode the justice system. Assuming an independent legal profession, does it have a role in promoting or protecting judicial independence? If so, how can it do so? The very existence of a constantly critical and vigilant legal profession will itself conduce to high judicial standards and encourage judges to act in accordance with the values of independence and integrity. Judicial independence should feature prominently in professional legal education, continuing professional development and judicial training in all countries. Chapter 15 by Shimon Shetreet looks at relations among national top courts, international, and supranational courts. This relationship has been the center of controversy for a long time. It has been specifically debated and discussed in public discourse. It has also been reflected in decisions from the top n ­ ational courts, such as in the decisions regarding the European Arrest Warrant in Germany, Poland, and the Czech Republic, and in the decisions regarding control orders in the United Kingdom. Debate over how to best ­resolve this issue remains, and there are vast differences in opinion about 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 the legal systems of member states. There should be a duty of all courts and tribunals acting in the international level whether they are defined as an ‘international’ tribunal or as a ‘supranational’ tribunal. This a­ pproach of constitutional pluralism assumes that there could be more than one ­legitimate interpretation, and therefore a dialogue based on mutual

12

Introduction

respect should be developed. The legal approach of constitutional pluralism finds its expression in the parallel theories of political science which emphasize the significance of state sovereignty and the unique state characteristics that should be given recognition in international relations, legal relations, and political partnerships. Chapter 16 by Ada Pellegrini Grinover states that since 1988, Article 5, Paragraph 2, of the Brazilian Constitution has set forth that, “The rights and guarantees enshrined in the Constitution do not exclude others derived from the constitutional regime or principles or from international treaties ratified by the FederativeRepublic of Brazil.” This doctrine considers that the principles and rules from the “Pact of San José,” formed in Costa Rica, and of which Brazil is a signatory, would be classified as constitutional rules, arranged in hierarchical order. But for a long time, the Supreme Court – in charge of the concentrated control of constitutionality – placed the “Pact of San Jose” principles on the same level as the internal state legislative laws. More recently, however, the Supreme Court has changed its opinion, and has begun considering those rules as being supralegal or constitutional. Chapter 17 by Teuta Vodo refers to various scholars who have discussed factors determining judicial independence in both western democracies and totalitarian regimes. Previous researches have shown that, either exogenous or endogenous influences such as socio-cultural, economic, and/or political factors, legacies of the past, judicial institutions etc., may have a direct impact on judicial independence. In this paper, the aim is to bring out and analyze the main factors influencing the judicial independence in post-communist Albania. Both institutional shields and political factors are taken into account in order to analyze the impact that they may have on judicial independence. The main finding of this study is that the combination of political interference (the exogenous factor), with the lacunas in the legislative framework (the endogenous factor) has a great significance on the quality of judicial independence in the country. Additionally, it is discussed that the extent of democratization is very relevant, and may be the match point to determine the judicial independence in such a transitional democracy. Part iv Domestic Courts and Foreign Elements: Foreign Parties, Foreign Law and Foreign Judges This Part contains chapters by Wayne McCormack, Jonathan Entin, Neil Andrews, Walter Rechberger, Daniela Cavallini, Lin Feng and Yitzhak Hadari.

Introduction

13

Chapter 18 by Wayne McCormack, with tongue in cheek, says that among the many important and trenchant debates that take place in the U.S. ­Supreme Court, there occasionally emerges a debate that at first glance could be d­ escribed as silly for grown professionals. Justice Scalia could be seen as ­contending that the Court must turn a blind eye to what other nations think about an issue of law, even if there is a consensus among the international community on the issue. In truth, however, his approach is part of a more subtle and broader debate, primarily regarding the degree to which constitutional interpretation should take account of changing societal norms. Chapter 19 by Jonathan Entin also looks at the recent American debate about foreign law in domestic courts. He observes that American courts have always used foreign law in appropriate situations. Sometimes, other states in the federal system may have persuasive authority and can influence but not bind the court. Or a judicial citation might be symbolic; the court might not treat the source as either binding or persuasive but might refer to it for other reasons. A careful look at the cases that have generated concerns about the role of foreign law in American cases will show that the Supreme Court has not relied on legal authority from outside the United States as the basis for any decision. Indeed, every single case would have come out exactly the same way even if the Court had not referred to any foreign or international legal sources. This paper also takes a brief look at another controversy in which critics attacked the Supreme Court for supposedly basing a landmark ruling on inappropriate authorities. In the school segregation cases, the target was social science evidence rather than foreign legal sources, but the debate can help to put the recent flap about foreign and international law into broader perspective. For Neil Andrews, in Chapter 20, “dispute resolution planning” should include the strategic preference that a foreign litigant could accept court proceedings in the opponent’s forum (assuming that this forum is efficient and reliable), rather than arbitration in a neutral jurisdiction. That strategic preference arises after: (a) reflection on the benefits of proceedings within courts which are ­efficient, reliable, and globally respected (faster establishment of jurisdiction, ­superior case-management, summary relief, the safety-valve of controlled appeals); (b) robust evaluation of the arbitration community’s claims to procedural superiority (claims based on considerations of (1) neutrality, (2) expertise, (3) finality, (4) superior cross-border enforcement, (5) c­ onfidentiality); and

14

Introduction

(c) provided a judgment from that court will yield satisfaction of a successful claim (by intra-jurisdictional and/or cross-border enforcement). Chapter 21 by Walter Rechberger analyses legal aspects with regard to foreign parties in the Austrian civil procedure code, focusing on several different topics: international jurisdiction, capacity to conduct proceedings, security on costs, service of documents, judicial impartiality and independence, and the composition of the bench. The paper also takes into account differences between foreigners coming from Member States of the EU and those coming from third states. Foreign parties generally are not treated any differently than Austrian parties, be it by law or by the court. The Austrian Civil Law Legislation contains only a few provisions dealing with foreign parties. This is even more remarkable considering that most of these rules originate from 1895. Even at the end of the 19th century the Austrian civil procedural rules on foreign parties were quite liberal from the beginning. One may speculate what the reason for this attitude may be. If I were to speculate, I would assume that the Austrian ccp was intended to apply in the former Danube Monarchy, which – as a multi-ethnic state – in some respects can be considered as an ancestor of today’s European Union. Chapter 21 by Walter Rechberger deals with both procedural and cultural hurdles faced by foreign litigants in Austrian courts. Some procedural requirements would treat Austrian citizens who have no permanent residence within the country as foreign residents, but the overarching requirement is established by EU law, which prevents “discrimination on the basis of nationality.” Austrian courts will take jurisdiction of actions involving Austrian citizens but also actions in which litigation elsewhere would be impossible or unreasonable. Professor Rechberger deals with issues such as capacity to litigate, security for costs, taking evidence abroad, and enforceability of judgments before turning to more subtle questions of judicial impartiality. He observes that about 12.5% of the Austrian population are noncitizens and thus ineligible to be judges, which leaves open the possibility of some lack of public confidence in the impartiality of the system. Nevertheless, he concludes that “foreign parties are generally not treated any differently than Austrian parties,” a fact that may be attributable in part to the multi-ethnic background of the nation. Chapter 22 by Daniela Cavallini tackles interest in judicial liability, which has become stronger in Italy under pressure of the European Court of Justice. The ecj ruled that a national law cannot exclude, in a general manner, State liability for the infringement of EU law by the judge, and thus reforms are required in the Italian legislation and case-law to comply with the European

Introduction

15

obligations existing for all the Member States. A new law on State liability is a consequence of this pressure of the European Court. Is the new law a real threat to judicial independence or is it a due remedy to effectively guarantee individual compensation for judicial mistakes? The National Association of judges and prosecutors, the Council of the Magistracy, the President of the Supreme Court strongly opposed the new law that, in their opinion, represents a threat to judicial independence and impartiality and is in contrast with the Constitution. But to introduce substantive and effective professional evaluations of judges and prosecutors, to improve their working conditions and therefore the quality of the decisions, to make the disciplinary system more effective, to reduce the huge backlog, would probably be more effective remedies to the current bad performance of the Italian judicial system. The Italian judiciary is asked today to depart from its traditional image of a self-referential, isolated and bureaucratic body with high independence and little accountability for its activities, including the application of the law. More attention is now devoted (on the political, economic and social level) to the professional evaluation of judges and prosecutors, to the efficiency and accountability of the judicial system, which exhibit in Italy various shortcomings. Chapter 23 by Lin Feng points out that, unlike many other jurisdictions in the world, expatriate judges have always played an important role in Hong Kong ever since it was occupied by the United Kingdom (uk) in 1843 as a colony. The Local Judicial Officers’ Association in Hong Kong defines local judicial officers by their ties with Hong Kong. A local officer means, under its constitution, any person holding judicial office on local terms, or those who have substantial Hong Kong connections. This definition embodies the principle of equality and will be adopted in this article. The roles of expatriate judges have changed over different historical periods in Hong Kong. This article will classify the roles of expatriate judges in Hong Kong into two categories, i.e., practical and symbolic roles. It will examine the roles and importance of expatriate judges from Hong Kong’s colonial period to its present status as a Special Administrative Region of the People’s Republic of China (China). By tracing and discussing the roles of expatriate judges in Hong Kong and their contribution to the rule of law in more than 170 years since Hong Kong became a colony, the paper will show that the importance of their practical roles versus symbolic roles has changed over the years from having more practical importance in the early days to having more symbolic importance nowadays. The paper argues that the symbolic roles of expatriate judges have been important after Hong Kong’s change of sovereignty and will remain important so long as Hong Kong’s host state, China, has not developed into a fully-fledged rule of law state. While the practical roles of expatriate judges are still important, they

16

Introduction

are, however, not irreplaceable. The day China becomes a rule of law state will be the day on which it will be no longer necessary to have expatriate judges in Hong Kong. Chapter 24 by Yitzhak Hadari claims that “transfer-pricing disputes” between tax authorities and multinational enterprises (mnes) are one of the most important issues in international taxation. Transfer pricing refers to the pricing of goods and services within a multinational organization (concern), regarding cross-border transactions. For example, goods from the production division may be sold to the marketing division, or goods from a parent company may be sold to a foreign subsidiary, with the choice of the transfer price affecting the division of the total profit among the parts of the company. This has led to the rise of transfer pricing regulations as governments seek to stem the flow of taxation revenue overseas, making the issue one of great importance for multinational corporations. Several mechanisms have evolved for resolving conflicts between mnes and national tax administrations. Such mechanisms are: apa (Advance Pricing Agreement), sep (Simultaneous Examination ­Procedure), and Arbitration. One of the most advanced mechanisms for ­resolving binational or multinational tax disputes, which also assists in avoiding double taxation, is arbitration. For example, the eu Arbitration Convention provides for mandatory arbitration in cases where Member States cannot reach a ­mutual agreement on the elimination of double taxation within two years of the date on which the case was first submitted to one of the competent authorities of the Member States involved. The Convention thus improves the conditions for cross-border activities in the Internal Market. Part v Judicial Attitude Towards “Others” in Domestic Courts This Part contains chapters by Wayne McCormack and Judge George Maxwell. Chapter 25 by Wayne McCormack returns to claim that, when asked how foreign nationals (known as aliens) are treated in U.S. courts, the short answer should be “just like citizens.” But of course a more complete answer will be a bit more complicated. The basis for equal treatment is found in both the Fifth and Fourteenth Amendments to the U.S. Constitution: no person shall “be deprived of life, liberty, or property without due process of law.” The Due Process Clause was adapted from the British Magna Carta, which assured that the Crown would follow the “law of the land,” a phrase that was later converted to “Due Process of law.” The applicability of Due Process to every person and not just to citizens should guarantee the same treatment, with respect both to applicable law and to procedures, for both citizens and aliens. The differences come in areas in which the fact of nationality is relevant to the issues involved.

Introduction

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These occur mostly in the area of immigration, rights to government benefits, and jurisdiction over foreign nationals. In one particular area, the “war on terrorism,” the courts have been blind to the claims of citizens and aliens equally. The area that I find most troubling is that of human trafficking, in which the enforcement process is virtually non-existent for foreign nationals. This is a topic that cries out for some form of international law enforcement – if not in my lifetime, then surely within the lifetime of some of the children now being very badly mistreated. Chapter 26 by Judge George Maxwell discusses the question, “does the ethnicity or race diversity of foreign parties in the domestic criminal courts and domestic penalty systems influence the severity of punishment by law enforcement bodies?” To manage this discussion, the paper limits its view to a much narrower question, “are Mexican and Central American immigrants, particularly undocumented immigrants, treated more severely in the Florida criminal court system than other persons coming before the court?” The Florida courts aspire to, and to a substantial degree achieve, a high level of ­fairness and justice in the criminal system. The Florida courts have an announced commitment to ensure fairness to all persons coming before them. Human nature and nativist sentiment will more than likely last as long as the sense of ­self-preservation abides in our inner soul. But, this Anglo-American tradition that has evolved for a thousand years has a rich tradition of fairness. Actual practice varies throughout the numerous State, county and l­ ocal agencies but the day of the sadistic, uneducated brute stereotypical of popular ­literature is mostly behind us. Though most cases resolve through a series of negotiations (plea bargaining), the availability of trial by jury as a right for both the citizen and foreign other acts to keep the system honest. Additionally the right to trial by jury prevents the state from exercising u ­ nchallenged power and the abuses that arise therefrom. Florida courts have a healthy mix of theorem and practicum, thus legislative or executive excess is still challenged and balanced by a judiciary jealous of its independence. This ­independence is necessary to maintain the checks and balances envisioned by the Founding Fathers. Part vi Recent Amendments to the Mt. Scopus International Standards of Judicial Independence This Part contains two chapters by Shimon Shetreet. Chapter 27 by Shimon Shetreet offers an analysis of the recent amendments of the Mount Scopus International Standards of Judicial Independence adopted in the last four international conferences of the jiwp Association.

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Introduction

The recent conferences of the international Project of judicial independence were held in Moscow, May 2014; Osnabrueck, October 2014; and Bologna and Milan, June 2015; and Krakow, January 2016. These conferences discussed certain amendments to the Mt. Scopus International Standards of Judicial Independence as well as debating ways to maintain judicial independence globally. The issue of Online Dispute Resolution was discussed at the Moscow conference. This issue has become more prevalent in recent years with the growth of online consumerism. Disputes arising from online transactions are increasing and as such, the response of companies has been to create alternative methods to resolve the disputes. These methods are known as Online Dispute Resolution (odr). Also discussed at the Moscow conference was the role of the lawyers, the number of which is growing, and their role in maintaining judicial independence. At the Osnabrueck conference the issues of the lawyer’ role in judicial independence was debated again and it was resolved to add a chapter on Lawyers and Bar Associations to the International Standards. The chapter details the roles of both lawyers and the bar associations, who both perform an important role in shaping judicial independence on the global stage. A question was raised regarding Commissions of Inquiry: Do commissions of inquiry and those who head them, regardless of their title and position, need to be held to standards of judicial independence? It was decided that in its capacity as an adjudicatory body, commissions of inquiry as well as the chairpersons and the members of the commission must remain independent and impartial. This ensures that in more than just common adjudicatory processes maintain judicial independence and impartiality. During the Bologna and Milan conference further amendments to the Mt. Scopus International Standards were approved. The amendments make changes to the complaints procedure of a citizen towards a judge. Also approved at the conference was the Global Code of Judicial Ethics. The code deals with the two aspects of judicial conduct. It deals with issues arising from the conduct of a judge on the bench, and also with issues arising from the judges’ conduct outside of his official capacity. Chapter 28 by Shimon Shetreet analyses the formulation of the global judicial ethics code, initiated during the conferences of the International Association of Judicial Independence and World Peace at the University of Ghent in October 2012, and at the University of San Diego in September 2013. In these conferences it was resolved, at the proposal of Prof. Marcel Storme, to embark upon a project to develop a global code of judicial ethics. The Code should contain two major parts. One part will deal with conduct on the bench and the

Introduction

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other on the conduct off the bench, i.e., the rules governing conduct outside of official judicial duties. Parallel to the development of national codes of judicial ethics, it is very important that a global code of judicial ethics should be adopted. The text of the Global Code of Judicial Ethics is based on and adopted from standards contained in the Mt. Scopus International Standards of Judicial Independence 2008, the New Delhi Code of Minimum Standards of Judicial Independence 1982, the Montreal Universal Declaration of The Independence of Justice 1983, the Bangalore Principles of Judicial Conduct November 2002, the United Nations Basic Principles of Independence of the Judiciary, and The Burgh House Principles of Judicial Independence in International Law (for the international judiciary). Part vii The Text of the International Standards of Judicial Independence In this Part we include appendices with important documents on judicial independence. The appendices offer the update text of Mt. Scopus International Standards of Judicial Independence Consolidated Version, Global Code of Judicial Ethics, Montreal Universal Declaration of the Independence of Justice, and The New Delhi Code of Minimum Standards of Judicial Independence.

chapter 2

The Impact of International Law on Judicial Independence in Domestic Law: The Jurisprudence of the European Court of Human Rights Shimon Shetreet i Introduction The transnational jurisprudence and international treaties have an important impact on judicial independence in international law and domestic law. The European Convention on Human Rights (echr) united Europe as the Council of Europe, and set up The European Court of Human Rights (ECtHR). The ECtHR did not just influence the European countries separately, but all the European countries as one entity. Its jurisprudence has had a significant impact on the development and the maintenance of Judicial Independence in recent decades. Judicial Independence is crucial in maintaining human rights and upholding the democratic values that shape Europe. The legal infrastructure of the Council of Europe under the European Convention of Human Rights, with the European Court of Human Rights as its judicial arm, made important contributions for human rights jurisprudence beyond the borders of Europe. In addition to the legal regime of the European Convention on Human Rights there is also the legal regime of the European Union. The transformation of the European Union from an economic union to a union grounded in a shared set of values of human rights, democratic values, and humanist and religious heritage is the product of an important development that took place in the Human Rights discourse of the European Union. It was both on the treaty level and the level of judicial jurisprudence. The impact of the European Court of Human Rights on this development in recent years will be analysed. Also, this paper will point out the differences between the jurisprudence in the earlier cases dealing with Western European countries, and then the later cases in Eastern European countries. Finally, the paper will highlight examples of domestic European jurisprudence and other jurisdictions that demonstrate the importance of an effective way to grant ­judicial independence.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_003

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The Development of the Human Rights Discourse in Europe

The Council of Europe was founded in 1949 in an attempt to promote human rights under the dark shadow of the atrocities of the Second World War. It set to work on negotiation and formulation of what was intended to become a legally binding convention on human rights for all the nations of Europe. The countries wanted human beings within Europe to have for the first time human rights that would be implementable under international law, before a court independent of the nation states, against public authorities. The Council of Europe then began development of the European Convention on Human Rights and Fundamental Freedoms of 1950, after coming to the conclusion that there was a need to prevent any recurrence of the atrocities of the Second World War and to prevent the creation of dictatorships. At the same time, there was also a movement towards what subsequently become known as the European Union (eu). The European Convention for the Protection of Human Rights and Fundamental Freedoms, known simply as the European Convention on Human Rights (echr), was the Council of Europe’s first legal treaty to protect human rights. It was also the first international human rights treaty with enforceable mechanisms. Only member states of the Council of Europe could become a party to the echr. The echr’s preamble provides that “the maintenance and further realization of human rights and fundamental freedoms,” which “are the foundation[s] of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend.” It is important to remember that the European Convention on Human Rights and the treaties of the European Union are quite separate. The European Convention on Human Rights deals with human rights and their enforcement by the institutions created by the Convention. The eu treaties originally dealt with issues connected with trade between the member states. Subsequent treaties have expanded the area of activities covered by the eu treaties, creating laws and regulations which only apply to treaty matters; there are separate institutions created by the eu treaties for dealing with enforcement of these laws and regulations. The European Convention on Human Rights and the eu treaties are separate and distinct. However, it should be noted that the member states of the eu agreed that no state would be admitted to membership in the eu unless it accepted the fundamental principles of the European Convention on Human Rights and agreed to declare itself bound by it.

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The European Convention on Human Rights was drafted taking the Universal Declaration of Human Rights of 1948 as its starting point, but with the pursuit of the aims and objectives of the Council of Europe, through the maintenance and further realisation of human rights and fundamental freedoms, firmly in mind. Once its terms had been agreed, it was opened for signature in Rome on 4 November 1950 and took effect when ten of the subscribing states, described as ‘high contracting parties’ (hcps) in the document, had executed and deposited with the Secretary General of the Council of Europe the necessary instrument of ratification. It entered into force in September 1953. The European Convention on Human Rights represented the first steps for the collective enforcement of certain rights set out in the Universal Declaration because, in addition to defining a list of civil and political rights and freedoms, it created a means of enforcement of the obligations entered into by hcps. Three institutions or organisations were set up to discharge this responsibility, namely the European Commission of Human Rights (usually referred to as the Commission, which was set up in 1954), the European Court of Human Rights (which was not set up until 1959), and the Committee of Ministers of the Council of Europe (i.e. the respective Minister of Foreign Affairs of each of the member states or their representative). The Convention established the European Court of Human Rights. The ­European Court of Human Rights is an international court based in S­ trasbourg. It consists of a number of judges, equal to the number of member states of the Council of Europe, that have ratified the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court’s judges sit in their individual capacity and do not represent any state. They are entirely ­independent of their country of origin and do not represent either applicants or states. The Court applies the European Convention on Human Rights. Its task is to ensure that states respect the rights and guarantees set out in the Convention. It does this by examining complaints lodged by individuals or, sometimes, by states. Where it finds that a member state has violated one or more of these rights and guarantees, the Court delivers a judgment. Judgments are binding: the countries concerned are under an obligation to comply with them. The infusion of Human Rights into the constitutional discourse of the European Union, however, happened at a later time than with the Council of Europe and the European Convention on Human Rights. Human rights and democratic discourse were a set of norms traditionally outside of the eu constitutional infrastructure, as they were provided by the European Convention on Human Rights, of which all European states were members. In the decades following the Second World War, however, international human rights law and

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international human rights standards had an increased impact on domestic laws. Treaties containing Human Rights law into the eu legal structure began with the Maastricht Treaty of 1992.1 Democratic values were provided for again in the 1997 Treaty of Amsterdam and in the Nice Treaty of 2001.2 Finally, the 2000 Charter of the Fundamental Rights of the European Union dealt with human rights expressly and in detail. The European Court of Justice emerged as a key player in the development of human rights law in the European Union, although it initially rejected jurisdiction in matters of human rights.3 In Stauder, after its initial hesitation to deal with matters of human rights, the European Court of Justice established fundamental human rights as general principles of Community law that the Court would protect.4 The European Court of Justice’s development of human rights law has been that of judge-made law.5 On the treaty level, the Lisbon Treaty integrated the whole treaty of the European Convention of Human Rights into the law of the European Union. As I have written elsewhere,6 the European Union has developed from a traditionally economy-based union of a few European countries trying to recover after the Second World War, into a community of human rights, freedom, and democracy, that respects the importance of its humanist and religious inheritance. The Lisbon Treaty was the key factor in integrating all four foundations of peace needed for lasting peace into the European Union: political and ­security peace, economic peace, cultural or value peace, and religious peace. 1 Treaty on European Union, Feb. 7, 1992, 1992 o.j. (C 191) 1 [hereinafter teu]. The teu entered into effect on November 1, 1993. 2 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, Oct. 2, 1997, 1997 o.j. (C 340) 1 [hereinafter Treaty of Amsterdam]; Treaty of Nice Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Feb. 26, 2001, 2001 o.j. (C 80) 1 [hereinafter Treaty of Nice]. 3 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. Case 1/58, Stork & Co. v. High Authority of the European Coal and Steel Cmty., 1959 e.c.r. 17, 4(a). Subsequent case law reversed this decision. 4 Case 29/69, Stauder v. City of Ulm-Sozialamt, 1969 e.c.r. 419, 7. 5 Compare Eve Chava Landau, A New Regime of Human Rights in the eu, 10 Eur. J. L. Reform 557 (2008). 6 See Shimon Shetreet, Culture of Peace and Human Rights: The Development of Human Rights Protection in the European Union, in The Culture of Judicial Independence; Rule of Law and World Peace 99 (Shimon Shetreet, ed., 2014).

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The constitutional infrastructure, completing the integration of human rights and democratic values into the European Union, 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 interpreted 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.7 The discourse on Human Rights in the European Union, however, would not be complete without the judicial aspect developing practical human rights law at the same time as the treaty law. iii

Different Principles of Judicial Independence and the Treaties that Protect Them

The independence of the judiciary is crucial in maintaining and upholding human rights on the domestic level as well as on the international level. Judicial Review can only be effectively and properly exercised when the judiciary enjoys full judicial independence. The legal foundations of the theory of judicial independence were established as early as the 18th century, and are deeply rooted in the doctrine of the separation of powers developed by Montesquieu. The separation of powers such described are ‘State courts are not more than the mouth which pronounces the law.’ The main principle that can uphold the rule of law is that jurisprudence must be based on law.8 7 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 17, 2007, 2007 o.j. (C 306) 1 [hereinafter Lisbon Treaty]. 8 Baron De Montesquieu, The Spirit of the Laws (Thomas Nugent trans., 1949).

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The struggle for the proper protection of judicial independence continues still today. Judicial independence does not mean just the independence of the judges themselves during the decision making process, but it demands a broader definition. International human rights treaties and international courts have impacted international judicial independence law. Among these is the Mt. Scopus International Standards of Judicial Independence, a work of the author as well as other international legal academics and professional jurists, under the framework of the International Association of Judicial Independence and World Peace. The standards of judicial independence, originally drafted by the same group in 1982 known as the New Delhi Code of Minimum Standard of Judicial Independence, drafted together and under the framework of the IBA (International Bar Association) were approved in this treaty. They updated to meet contemporary needs, and a new set of standards for both national and international judges was developed.9 Section 2.2 of the Mt. Scopus Standards states that there should be a distinction between personal and substantive independence of the judiciary. Personal independence meaning that the terms and conditions of judicial service should be adequately secured so that individual judges are not subject to executive control,10 while substantive independence means that the individual judge will be subject to nothing but the law itself and the commands of conscience.11 Collective independence of the judiciary is also protected by the Mt. Scopus Standards, in Sections 2.12 and 2.13, which states that judicial matters are exclusively within the responsibility of the Judiciary, both in central judicial administration and in court level administration, and the central responsibility for judicial administration shall preferably be invested in the judiciary.12 After the Second World War, there was a shift in the jurisprudence ­regarding judicial independence. Previously, the main area of impact was from national 9

10

11 12

See Shimon Shetreet, Judicial Independence and Judicial Review of Government Action: Necessary Institutional Characteristics and Appropriate Scope of Judicial Review, in Effective Judicial Review: A Cornerstone of Good Governance 187, 187–188 (C. Forsyth et al. eds., 2010). See Shimon Shetreet, Judicial Independence: The Contemporary Debate xxi, 700 (Shimon Shetreet & Jules Deschenes, eds., Martinus Nijhoff 1985) (detailed analysis of judicial Independence); Shimon Shetreet, Culture of Judicial Independence: Conceptual Foundations and Practical Challenges xlix, 637 (Shimon Shetreet & Christopher Forsyth, eds., Martinus Nijhoff 2012); Shimon Shetreet, Culture of Judicial Independence: Rule of Law and World Peace xlv, 554 (Shimon Shetreet, ed., Brill Nijhoff 2014). See also Shimon Shetreet & Sophie Turenne, Judges on Trial: The Independence and Accountability of the English Judiciary (Cambridge University Press, 2d ed., 2013). Id. Shetreet, supra note 6, at 189–191.

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jurisprudence contributing to the creation of the culture and the ­establishment of the principles of judicial independence. However, beginning in this postwar period, the momentum moved to the international scene, with international jurisprudence contributing to the creation of the culture and the establishment of the principles of judicial independence in national systems. Major international and regional human rights treaties contained provisions aimed at securing judicial independence in international tribunals and in the states party to the conventions. There are many major international and regional human rights treaties that contain provisions aimed at securing judicial independence in international tribunals. These international and regional treaties include Article 10 of the Universal Declaration of Human Rights; Article 6 of the European Convention on Human Rights; and Article 14 of the International Covenant on Civil and Political Rights, paragraph 1 of which provides, In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law; Article 8 of the American Convention, paragraph 1 of which states, Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal, previously established by law; Article 7 of the African Charter on Human and Peoples’ Rights, which states, Every individual shall have the right to have his cause heard. This comprises: (d) the right to be tried within a reasonable time by an impartial court or tribunal; and Article 47 of the Charter of Fundamental Rights of the European Union, which states, Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have

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the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.13 The international law on judicial independence is also enriched by international standards issued by international organisations and professional associations such as Mt. Scopus International Standards of Judicial Independence by jiwp. Yet there are issues that can arise just from the inherent idea of judicial independence. For example, Independence of the Judiciary is an extremely important principle in Austrian constitutional law, appearing in the Austrian Federal Constitutional Act. Article 87 provides the framework for judicial independence of judges belonging to state courts. Independence must be guaranteed, not just for the judges’ benefit, but also for the legal subjects.14 Yet Professor Walter Rechberger points out some difficulties when applying the principles of judicial independence on an administrative level. Firstly, the judges are bound by the law, so they cannot be completely independent of legislating authorities when making judicial decisions. Secondly, the judiciary is known to appoint the same experts time and time again, which can lead to a decrease in the accuracy of their examinations due to the prolonged cooperation between the experts and the judges. Furthermore, criteria of judicial independence that are guaranteed in the Austrian Constitution in Article 88, include freedom from instructions, long judicial terms in office, and a general inability to be removed from their judicial appointment. Yet, the age of permanent retirement of judges is to be decided by federal law, meaning the judges themselves are not completely independent of the legislating powers. A few initiatives have taken place to secure international standards for judicial independence. The International Project of Judicial Independence of jiwp initiated the Mt. Scopus conference series for the drafting and amending of the Mt. Scopus International Standards of 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 representative 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.” Also there was no need to enter exceptions for the 13 14

Charter of Fundamental Rights of the European Union, 2007 o.j. (C 303) 1. Walter H. Rechberger, Judicial Independence and the Three Hightest Courts in Austria, in The Culture of Judicial Independence; Rule of Law and World Peace 445 (Shimon Shetreet ed., 2014).

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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. In other conferences, issues were reviewed and addressed as necessary over the course of many years. The International Association of Judicial Independence and World Peace (jiwp) 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 association is dedicated to research and the protection of judicial independence around the globe. The project has since been moulded by various conferences 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.15 iv

Focus of the European Court of Human Rights on Europe

In addition to the treaties containing provisions protecting the independence of the judiciary, international court cases provided remedies to enforce the right to an independent and impartial tribunal when such a right was violated by the state. These decisions, issued by the ECtHR, are binding upon the member states of the ECtHR and thus influence the judicial independence in domestic national laws.16 At the time of the rise of the European Court of Human Rights, its jurisprudential focus was aimed at Western Europe, as a result of the ussr and its closed doors towards the rest of Europe. With the accession of Eastern European countries into the European Union later on, the focus shifts towards them.

15

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Shimon Shetreet, Analysis of the Amendments to the Mt. Scopus International Standards of Judicial Independence, in The Culture of Judicial Independence: Rule of Law and World Peace 465 (Shimon Shetreet ed., 2014) (Amendments to the Mt. Scopus Standards of Judicial Independence and more information about the projects of the international association of judicial independence and world peace). 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 Chi. J. Int’l L. 275, 304 (2009).

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We can see a difference between the Jurisprudence of the European Court of Human Rights in Eastern and Western Europe. This can be attributed to the many differences between the east and the west. Eastern and Western Europe differ on many levels. On a geographical level, Western Europe is situated as a peninsula, historically able to carry out trade through the water, while Eastern Europe is more of a land locked and less available for water travel. The cultures and languages stemming from Eastern Europe have Slavic roots, while countries in Western Europe have developed their own distinct identities. Western Europe experienced the effects of technological advancement as the Industrial Revolution took place, which spurred economic advancement, and with that Western Europe became more able to provide modern medicine and healthcare. Eastern Europe has been less financially able, and has had fewer resources for modern healthcare. The shifts in sovereignty in Eastern Europe also influence the jurisprudence. Since the fall of the Berlin Wall, Eastern European states have been the subject of international interest. The Eastern European shifts in sovereignty, however, go further back than 1989, and influence the idea of sovereignty to this day. Eastern European states were the site of much political movement at the time that the modern Western state was emerging. In the eighteenth and nineteenth centuries though, Eastern Europe failed to keep up with the advancements emerging from Western Europe. Western European states advanced to industrial capitalism, while Eastern European states fell behind. The twentieth century saw Eastern Europe through many changes. The Russian Revolutions of 1917 saw the dismantlement of the Tsarist autocracy and the rise of the Russian Soviet Federative Socialist Republic. After the dismantling of state sovereignty in Eastern Europe in the Second World War, the national form was revived after 1945 disguised as the Peoples’ Democracies. During the 1950s and 60s the Stalinist rule rose in Eastern Europe.17 After the events of 1989, and the fall of the Communist regime, there was hope that Eastern European states could finally determine their own fate. Eastern Europe’s sovereignty, however, is still limited. In the early 1990s, the trend in Eastern Europe was the development of ‘governing parliaments.’ This trend was an attempt to demarcate the post-1989 period from ‘limited sovereignty,’ which had preceded it. Parliaments were empowered over the executive in a wave of enthusiasm for representative politics. This trend, however, was not sustained. eu accession was a key factor in the reversal of this trend. The accession process strengthened the executive arm of government, with ­parliaments 17

Chris J. Bickerton, From Brezhnev to Brussels: Transformations of Sovereignty in Eastern Europe, 46 Int’l Pol. 732, 732–752 (2009).

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often serving as ratifying authorities. Eastern European countries, as a result, now had the ability to choose their parliaments with their own representatives, yet still felt hopelessness as it proved to not bring the change they had been hoping for at the historical upturn of the previous regimes. Elected officials no longer engaged in meaningful debates or arguments, which led to a major impact on the effectiveness of the legal system, and political formations in Eastern Europe post-1989 have struggled to retain their coherence. The accession to the eu also diminished political development. Ineffectual parliaments and a convergence of political parties towards a pro-eu bias have caused the collapse of any hope for liberal politics in Eastern Europe. The eastern European region is marked by political fragility and immobility, enabled by the expansion of the eu. These aspects of Eastern European political thought are crucial in understanding the effects of the European Court of Human Rights judgements on Eastern European countries. v

The European Court of Human Rights’ Impact on Western Europe

An example of international jurisprudence influencing domestic laws in Western Europe is Procola v. Luxembourg,18 in which the plaintiffs complained ­before the ECtHR of an infringement on their right to an independent and impartial tribunal under Article 6, paragraph 1 of the ECtHR.19 The ground for the complaint was that some of the members of the Judicial Committee of Luxembourg who ruled on Procola’s application for judicial review had previously given their opinion on the lawfulness of the impugned provisions in their other role as members of the Conseil d’Etat. They were mixing both judicial and executive functions together. Their interpretation was that Article 6 is applicable only when the proceedings are decisive for a civil right. In determining whether Article 6 was violated, the ECtHR ruled that in the context of an institution such as Luxembourg’s Conseil d’Etat, the mere fact that certain persons performed both the advisory and the reviewing functions with respect to the same decisions casts doubt on the institution’s structural impartiality. Procola had legitimate grounds for fearing that the members of the Judicial Committee would feel bound by the opinion previously issued.

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Procola v. Luxembourg, 326 Eur. Ct. h.r. (ser. A) (1995). European Convention on Human Rights, art 6, 1, http://www.echr.coe.int/Documents/ Convention_ENG.pdf.

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That doubt, however slight, was sufficient to vitiate the impartiality of the tribunal in question, thereby breaching Article 6, paragraph 1. Another example of international jurisprudence was the case of McGonnell v. United Kingdom,20 in which the applicant claimed that a bailiff, while presiding over the Court of Appeal, was not impartial due to his executive and legislative roles as a representative of the uk government. The ECtHR was asked to consider whether any direct involvement in the passage of legislation or executive rules is sufficient to cast doubt on the impartiality of a judge subsequently called on to interpret the wording of the legislation or rules at issue. The ECtHR found that despite the lack of any proof of actual bias, the bailiff could only cast a vote in the event of deadlock. However, there was no obligation on the bailiff to exercise his casting vote where that vote impinged on his conscience. Moreover, the States of Deliberation in Guernsey, the legislature of the island in which the bailiff participated, was the body that passed the regulations at issue. It can thus be seen to have had a more direct involvement with the legislature than had the advisory panel of the Conseil d’Etat in the case of Procola with its regulations. In the case of De Haan v. The Netherlands,21 the judge who presided over the appeals tribunal was called upon to decide an objection for which he himself was responsible. In that case, notwithstanding an absence of prejudice or bias on the part of the judge, the court found that the applicant’s fears regarding the judge’s participation were objectively justified.22 These decisions by the ECtHR, specifically Procola and McGonnell, played a certain role in constitutional changes in England, and cast doubt on the validity of the traditional practice in England of the Lord Chancellor presiding over appeals in the House of Lords, given that he was also a member of the British cabinet and Speaker of the House of Lords. It is possible that, as in the cases of Procola and McGonnell, the Lord Chancellor could be seen at that time as reviewing his own decisions made as a member of the executive branch.23 As of April 2006, with the coming into effect of the Constitutional Reform act of 2005, The Lord Chancellor and Secretary of State for Justice ceased to be the head of the judiciary, and this is now the role of the Lord Chief Justice, who

20 21 22 23

McGonnell v. United Kingdom, 30 Eur. Ct. h.r. 289 (2000). De Haan v. The Netherlands, 1997-iv Eur. Ct. h.r. 1392, 1393 (1997). Id. at 1392, 1393. For a detailed analysis of the jurisprudence, see James Crawford & Joe McIntyre, Chapter Twelve: The Independence and Impartiality of the “International Judiciary”, Culture of ­Judicial Independence; Conceptual Foundations and Practical Challenges 189 (Christopher Forsyth &Shimon Shetreet eds., 2012).

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has no overt political role unlike the Lord Chancellor and Secretary of State for Justice. In Findlay v. United Kingdom, the ECtHR stated the conditions that a tribunal has to meet in order to be considered independent: The Court recalls that in order to establish whether a tribunal can be considered as “independent,” regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.24 Based on these criteria, the court determined that court-martial proceedings were not adequately independent.25 Cases of claims of violation of human rights arose in Western Europe as well. One case which raised intense controversy was the case of Binyam ­Mohamed in England26 where the petitioner was detained in Guantanamo Bay and some forms of torture were used against him. He filed a suit in England and the court accepted his claim that torture was used against him. In addition a controversy arose also regarding corrections that were made in the judgement under the unique procedure practised in England of what is called the draft judgement procedure27 which allows the judge to introduce amendments into his judgement after he has written the judgement and sent it for comments of the parties.28 vi

Judicial Independence in Domestic Law in Western Europe

Not all countries have always had constitutional protection of judicial independence. As explained by Professor Marc Bossuyt, President of the Constitutional Tribunal of Belgium, the 1831 Belgian constitution, for example, does not explicitly refer to the independence of the judiciary. The Court of Cassation, 24 25 26 27 28

Findlay v. United Kingdom, 24 Eur. h.r. Rep. 221 (1997). Id. See also Coëme v. Belgium, 2000-vii Eur. Ct. h.r. 120. Mohamed v. Sec’y of State for Foreign & Commonwealth Affairs, [2010] ewca (Civ) 158 (Eng.). Jamie Gaskarth, Entangling Alliances? The uk’s Complicity in Torture in the Global War on Terrorism, The Royal Inst. of Int’l Aff., July 1, 2011, 945–964. See also Richard Norton-Taylor, Top judge: Binyam Mohamed case shows MI5 to be devious, dishonest and complicit in torture, The Guardian, Feb. 10, 2010, http://www.theguardian. com/world/2010/feb/10/binyam-mohamed-torture-mi5.

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however, has qualified the independence of the judiciary 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.” Similarly, Uruguay is now known as having one of the most independent judiciaries in Latin America, in part due to having its own budget, but this was not always the case.29 However, between 1977 and 1985, the military government severely curtailed the independence of the judiciary, by placing the judiciary under a justice ministry.30 In 1985, the Supreme Court reasserted judicial independence by releasing members of the Tupamaros urban guerrilla group, who had been imprisoned in the seventies.31 Interesting cases regarding Judicial Independence can be brought from Belgium. The Fortis case brings to the forefront the issue of judicial independence in Belgium. It concerned the take-over of what was left of the biggest bank of the country by the French Bank bnp Paribas. On the 17th of December 2008, the Prime Minister of Belgium wrote a letter to the Minister of Justice, containing an inventory of a great number of events relating to activities of his Cabinet concerning the take-over of the Fortis bank. The Prime Minister denied any possible interference of his Cabinet with the course of the judicial procedure in the Fortis case. The following day, the First President of the Court of Cassation addressed a confidential letter to the Chairman of the House of Representatives. In that letter, the First President of the Court of Cassation, the highest magistrate of the judicial order, raised questions about a supposed intervention by the Minister of Justice, via the Attorney-general at the Court of Appeal of Brussels, in the procedure of that case at the appeals level. The Court of Appeal had to deal with the judgment in summary proceedings of the Tribunal of Commerce which had rejected the claim of shareholders of Fortis against the take-over by bnp Paribas. The intervention of the Attorney-general was allegedly based on information concerning the deliberations within the Court of Appeal of Brussels. The publication of the letter of the First President led a few days later to the resignation of the Government. Those developments led to enquiries undertaken by a parliamentary commission of enquiry and by the High Council of Justice. They revealed that there had been contacts, as well in first instance as at the appeals level, by collaborators of members of the Government, in particular by magistrates ­temporarily dispatched as ministerial collaborators, with other members of the public 29 30 31

Eduardo Lora, The State of State Reform in Latin America 104 (Eduardo Lora, ed., 2007). Edy Kaufmann, Uruguay in Transition: From Civilian to Military Rule 118 (1979). Juan Carlos Calleros-Alarcón, The Unfinished Transition to Democracy in Latin America (2009).

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prosecution who had either expressed an advisory opinion (in first instance) or had intervened in the exercise of their office, albeit in an unusual manner (at the appeals level). The enquiries established that there had never been any direct contact between the government (the Minister of Justice or collaborators of members of the Government) and judges who had, in first instance or at the appeals level, to judge the regularity of the take-over.32 Another case in Belgium involved the Constitutional Court. The court had to deal with a request regarding recusal of some of its judges. The Belgian Constitutional Court is composed of twelve judges, six of them former politicians. The question involved three judges who were Flemish members of the Parliament and had participated in the deliberation and voting on the decree which was the subject of the prejudicial question submitted to the Court.33 It was decided that the fact that a Member of Parliament who has now become a judge at the Court of Arbitration took part in the debate and voted of a norm forming the subject-matter of a preliminary question does not constitute a ground for challenging that judge either under the Institutional Law on the Court of Arbitration or under Article 6 of the European Convention on Human Rights, or in application of the general principles of law.34 The same question can be raised regarding France and its Constitutional Court (Conseil Constitutionnel). The Council is made up of former presidents of the Republic who have been chosen to sit on the council, and 9 other members, a third of which are chosen by the current president. One can make the claim that those that have had the job in the legislative branch, and that are chosen by the head of the legislative branch, cannot achieve the levels of judicial independence needed for proper administration.35 In another example of the enforcement of judicial independence in Western Europe, Gian Andrea Danuser spoke about the relationship between the European Convention on Human Rights and Judicial Independence in Switzerland.36 Switzerland signed the European Convention on Human Rights in 1971, accepting the jurisdiction of the European Court of Human Rights, going against its founding document of 1291, which stated that Switzerland would not accept foreign judges. 32 33 34 35 36

Marc Bossuyt, The Independence of the Judiciary in Belgium, in The Culture of Judicial Independence; Rule of Law and World Peace 137 (Shimon Shetreet ed., 2014). Id. Id. 1958 Const. 56 (Fr.). Gian Andrea Danuser, The Influence of the European Convention on Human Rights on Judicial Independence in Criminal Procedural Law in Switzerland, in The Culture of Judicial Independence; Rule of Law and World Peace 363 (Shimon Shetreet ed., 2014).

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One of the first cases highlights the interaction between the European ­ onvention on Human Rights and the Swiss Criminal Code. Article 6 of the EuC ropean Convention on Human Rights provides an independent and impartial tribunal. In the Schiesser case, Schiesser, a Swiss citizen, was brought before the district attorney. Without a lawyer present, the district attorney made an order putting Mr. Schiesser in detention, on the suspicion that he had committed or attempted to commit several offences of aggravated theft and feared that he might suppress evidence, a criminal act according to Article 49, subparagraph a of the Zurich Code of Criminal Procedure. Schiesser filed a “public-law appeal” with the Federal Court, alleging that the Public Prosecutor’s decision was contrary to Article 4 of the Federal Constitution of Switzerland and to Article 5 paragraphs 1(c) and 3 of the Convention. He questioned whether the District Attorney was an “officer authorised by law to exercise judicial power,” according to Article 5 of the Convention. The Federal Court of Switzerland rejected his appeal, stating that Article 5 of the Convention does not see a judicial act as separation of the powers, and that the article does not preclude the District Attorney acting simultaneously in different functions. Mr. Schiesser turned to the European Commission for Human Rights, claiming a violation of Article 5 of the Convention. He claimed that the District ­Attorney could not be regarded as an officer “authorised by law to exercise judicial power” within the meaning of that provision. The case was referred to the Court (Chamber) of Human Rights. The Court had to decide whether or not the District Attorney had the authority to exercise judicial power. The Court stated that the District Attorney, while not being the same as a judge, can have the same attributes as one, if there are conditions of independence that are guaranteed for the person detained. The first condition 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 themselves enjoy similar independence. The procedural condition of Article 5 of the Convention places the District Attorney under the obligation of hearing the individual himself brought before him, while the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons. The Court held that there had been no breach of Article 5 by the District Attorney. He had not held concurrent roles of investigating and prosecuting functions, because he neither drew up the indictment nor represented the prosecuting authorities simultaneously, and the decisions made were made in complete independence.

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Under the influence of the jurisprudence of the European foreign courts, Switzerland had to change its constitution to fulfil the requirements of the Convention and to ensure the greatest possible effect of judicial independence in its domestic courts. vii

Jurisprudence of the European Court of Human Rights in Eastern Europe

We see from the cases involving Western European countries more violations of the principle of separation of powers and the importance of judicial independence. With cases involving Eastern European countries, however, as we will see there are more violations of human rights including the right to freedom of expression, the right to peaceful protest, the right to a fair trial, and the right to a lawful arrest or no arbitrary detention. A case from 2005, Kudeshkina v. Russia,37 involves a removal from judicial office for making critical statements about the Russian judiciary. In 2003 the applicant, who at the time held judicial office at the Moscow City Court, was appointed to sit in a high-profile criminal case concerning abuse of powers by a police investigator, Mr. Zaytsev. The applicant submitted that during the proceedings in question, the President of the Moscow City Court, Ms. Yegorova, called her to her office and asked her certain questions regarding the conduct of the trial. The parties disagreed on the circumstances of the applicant’s withdrawal from the case. The applicant herself submitted that Ms. Yegorova had removed herself from the case without giving reasons, while the Government claimed that the case had been assigned to another judge on the grounds that she had delayed its examination. The applicant subsequently asked for Ms. Yegorova to be charged with a disciplinary offence for having allegedly exercised unlawful pressure on her. The judge appointed to examine the applicant’s allegations concluded that Ms. Yegorova had decided to re-assign the case because she disapproved of the way the applicant was conducting the hearing and because there existed “confidential reports by relevant agencies” on the applicant’s examination of the Zaytsev case. The competent authority therefore decided not to institute disciplinary proceedings against Ms. Yegorova. Several months later, the applicant stood as a candidate in a general election to the Russian Duma. During her campaign, which included a program for judicial reform, she gave interviews to two newspapers and a radio station in which she was highly critical of the Russian judiciary. Among other things, she 37

Kudeshkina v. Russia, App. No. 29492/05 (Eur. Ct. h.r., Feb. 26, 2009).

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expressed doubts as to the independence of the courts in Russia and fears of “judicial lawlessness” within the country. She was not elected to the Duma, but was reinstated in her previous judicial office. Meanwhile, the President of the Moscow Judicial Council sought the applicant’s removal from office claiming that during her election campaign she had behaved in a manner that was incompatible with the authority and standing of a judge. In May 2004, without hearing representations from the applicant who was absent, apparently without a valid excuse, the competent authority decided to remove her from office, stating that she had “disseminated…false and untruthful fabrications” and that the statements were “clearly based on fantasies, on knowingly false and distorted facts.” The authority further concluded that the applicant had “disclosed specific factual information concerning the criminal proceedings against Mr. Zaytsev before the judgment in this case had entered into legal force.” The applicant subsequently appealed to the Moscow City Court and requested the transfer of her case owing to lack of impartiality, to no avail. The Court reiterated that civil servants also enjoyed the right to freedom of expression and that disclosure of information obtained in the course of its work, even on matters of public interest, always needed to be examined in the light of its duties of loyalty and discretion. In the case of Volkow vs. Ukraine38 in 2011, serious systematic problems were exposed regarding the functioning of the Ukrainian Judiciary. In particular, the system of judicial discipline did not ensure the sufficient separation of the judiciary from the other branches of State power. Moreover, it did not provide appropriate guarantees against abuse and misuse of disciplinary measures to the detriment of judicial independence. The respondent State was therefore required to take a number of general measures aimed at reforming the system of judicial discipline. Those measures included legislative reform involving the restructuring of the institutional basis of the system. The measures also entailed the development of appropriate forms and principles of coherent application of domestic law in that field. From 2003 Volkow was a judge of the Supreme Court of Ukraine and from 2007 President of the Military Chamber of that court. In 2007 he was elected to the post of member of the High Council of Justice (“the hcj”), but did not assume the office following the refusal of the Chairman of the Parliamentary Committee of the Judiciary (“the Parliamentary Committee”) to allow him to take the oath. In 2008 and 2009, two members of the hcj – one of whom was elected president of the hcj later – conducted preliminary inquiries into possible misconduct by the applicant. They concluded that he had reviewed 38

Volkow v. Ukraine, App. No. 21722/11 (Eur. Ct. h.r., Jan. 9, 2013).

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­decisions delivered by his wife’s brother – some of them dating back to 2003 – and that he had been culpable of gross procedural violations, some of his actions dating back to 2006. Following these inquiries, the President of the hcj submitted two applications to the Parliament for the applicant’s dismissal from the post of judge. In 2010 the Parliament, having considered these applications by the hcj, a recommendation by the Parliamentary Committee, voted for the applicant’s dismissal for “breach of oath.” According to the applicant, during the electronic vote, the majority of the Members of Parliament were absent and those present used voting cards which belonged to their absent colleagues. The applicant challenged his dismissal before the Higher Administrative Court, which found that the hcj’s application to dismiss him following the inquiry of the president of the hcj had been lawful and substantiated. The Higher Administrative Court further found that the hcj’s decision, based on the results of the other inquiry, had been unlawful because the applicant and his wife’s brother had not been considered relatives under the legislation in force at the time. However, it refused to quash the hcj’s acts in that case, noting that under the applicable provisions it had no power to do so. The Higher Administrative Court further noted that there had been no procedural violations either before the parliamentary committee or at the Parliament. Another case involving lustration and removal of the judiciary from office is the 2012 case of Baka v. Hungary,39 in which problems were encountered resulting from the premature termination of the Supreme Court Justice because of his views expressed publicly in professional capacity. The applicant, a former judge of the European Court of Human Rights, was elected President of the Supreme Court of Hungary for a six-year term ending in 2015. In his capacity as President of that court and of the National Council of Justice, the applicant expressed his views on various legislative reforms affecting the judiciary. The transitional provisions of the new Constitution (Fundamental Law of Hungary of 2011) provided that the legal successor to the Supreme Court would be the Kúria and that the mandate of the President of the Supreme Court would end following the entry into force of the new Constitution. As a consequence, the applicant’s mandate as President of the Supreme Court ended on 1 January 2012. According to the criteria for the election of the President of the new Kúria, candidates were required to have at least five years experience as a judge in Hungary. Time served as a judge in an international court was not counted. This led to the applicant’s ineligibility for the post of President of the new Kúria. 39

Baka v. Hungary, App. No. 20261/12 (Eur. Ct. h.r., May 27, 2014).

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The facts of the case and the sequence of events showed that the early termination of the applicant’s mandate as President of the Supreme Court was not the result of restructuring of the supreme judicial authority, as the Government had contended, but as a consequence of views and criticisms he had publicly expressed in his professional capacity. The proposals to terminate his mandate and the new eligibility criterion for the post of President of the Kúria had all been submitted to Parliament after the applicant had publicly expressed his views on the legislative reforms at issue, and had been adopted within an extremely short time. The fact that the functions of the President of the National Council of ­Justice had been separated from those of the President of the new Kúria was not in itself sufficient to conclude that the functions for which the applicant had been elected had ceased to exist after the entry into force of the new Constitution. Furthermore, neither the applicant’s ability to exercise his functions as president of the highest court in neither the country nor his professional behaviour had been called into question. The early termination of his mandate thus constituted an interference with the exercise of his right to freedom of expression. The Court in its decision stated that the fear of sanction had a “chilling effect” on the exercise of freedom of expression and in particular risked discouraging judges from making critical remarks about public institutions or policies, for fear of losing their judicial office. In addition, the impugned measure had not been subject to effective judicial review by the domestic courts, and the interference with the applicant’s right to freedom of expression had not been necessary in a democratic society. This ruling is consistent with Mt. Scopus International Standards of Judicial Independence, the court in fact relied on Sections 3.2 and 3.3 of the Mt. Scopus International Standards of Judicial Independence.40 Another example of infringement on judicial independence in Russia can be seen in the Zorkin-Yeltsin affair. After the collapse of the Soviet Union, the constitutional court was led by Chief Justice Valery Zorkin in several cases involving the transition of rule from the Soviet to the post-Soviet era. These cases were controversial, and included both an invalidation of one of President Yeltsin’s decrees and a finding that Yeltsin’s actions were unconstitutional. In response to these and other decisions, Yeltsin shut down the constitutional court for several years. When it reopened, Valery Zorkin remained with the court. However, the court’s perspective was notably different after its reopening: it began to regularly agree with government actions.41 40 41

Id. at 61. Mark Tushnet, Leadership in Constitutional Courts, Conference Materials, Krakow (Mar. 2008).

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The cases involving unlawful treatment towards to judiciary propose the fact the judicial independence is an important factor taken into consideration by the ECtHR. We can see that there is a lot of work to do in Eastern Europe involving the proper handling of the separation of powers. Cases involving unlawful treatment of politicians include the 2011 case of Nemstov v. Russia.42 Politician and well-known opposition leader, Boris Nemstov, was unlawfully arrested and put in detention following a political demonstration. Mr. Nemtsov was arrested at the end of the political demonstration and placed in police detention. According to his submissions, his passage was obstructed by the police when he was on his way to his car, accompanied by his daughter and her friend, before he could leave the area that had been cordoned off for the authorised demonstration. He maintains that his arrest took place without any prior warning or explanation and that he did not resist the police. According to the Russian Government’s submissions, Mr. Nemtsov began calling passers-by to take part in another, unauthorised meeting, while shouting anti-government slogans. The Government maintained that two police officers warned M ­ r. Nemtsov and ordered him to stop agitating the crowd; they arrested him after he had ignored those warnings and had continued chanting the slogans. Mr. Nemtsov submitted that while in police detention he was kept in a small solitary cell without windows, sanitary equipment, bed or beddings. The proceedings against Mr. Nemtsov and his subsequent detention had the effect of discouraging him from participating in protest rallies or indeed from engaging actively in opposition politics. They had a serious potential to also deter others from participating in demonstrations and open political debate, in particular having regard to the fact that he was a well-known public figure. The Court concluded that there had been a violation of Article 11 § 6, and the Court concluded that his deprivation of liberty had also been in violation of Article 5 § 1, and there had accordingly been a violation of Article 3, as well as Article 13. Unfortunately, since the case, Boris Nemstov, a fierce political opponent of Russian President, Vladimir Putin, was assassinated on February 27, 2015.43 A similar case is Kasparov and Others v. Russia.44 In 2013, an anti-government demonstration, consisting of a meeting in a delimited area, was authorised to 42 Nemtsov v. Russia, App. No. 1744/11 (Eur. Ct. h.r. 2014). 43 Jonathan Steele, Boris Nemtsov Obituary, The Guardian, Mar. 1, 2015, http://www .theguardian.com/world/2015/mar/01/boris-nemtsov. 44 Kasparov v. Russia, App. No. 21613/07 (Eur. Ct. h.r. 2013).

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take place in Moscow. However, permission for a march after the meeting was refused. The case concerned, in particular, a series of arrests before the demonstration took place, in circumstances which were in dispute between the parties. The Government alleged that a group of some fifty people had gathered and started marching while shouting anti-government slogans. The police had arrested some members of the group, including the first eight applicants, when they had threatened to spill over into a designated high-security area. The applicants claimed that they had not staged a rally or tried to access an unauthorised zone. The first, second and fifth applicants alleged that they had been walking peacefully towards the venue of the meeting when they were arrested, while the remaining applicants denied any connection with the demonstration whatsoever. In assessing these opposing accounts, the trial judge fully accepted the police report on the grounds that the police were a party “with no vested interest” in the case. The first eight applicants were convicted of an administrative offence for having breached the regulations on holding demonstrations and ordered to pay a fine. Their appeals were unsuccessful. The court found the right of freedom of peaceful assembly to be violated with the imposition of administrative fine for participating in an unauthorised yet peaceful demonstration, and the right to a fair hearing to be violated with a refusal to call defence witnesses to clarify an uncertain situation which constituted basis of charges. In Lutsenko v. Ukraine,45 a case in 2012, violations were found after the deprivation of the opposition leader’s liberty for reasons other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence. Lutsenko was a former Minister of the Interior and the leader of an opposition political party. On the 2nd of November, 2010, criminal proceedings were instituted against him for unlawfully arranging work-related benefits for his former driver. He gave a written undertaking not to abscond. On December 13, 2010 he was indicted and given an appointment to inspect the case file. Following several postponements, allegedly because some parts of the file were not yet ready, Lutsenko and his lawyer consulted it some ten days later. In the meantime, a weekly newspaper had published an interview with him in which he denied the accusations against him. On December 24, 2010 the prosecutor instituted a further set of criminal proceedings against him concerning the unlawful authorisation of search and seizure activities. A day later, the investigator sought to have the undertaking given in the first set of proceedings not to abscond replaced by pre-trial detention. In support of that application, 45

Lutsenko v. Ukraine, App. No. 6492/11 (Eur. Ct. h.r. 2012).

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he cited Lutsenko’s failure to inspect the case file and participate in certain investigative actions, and alleged that the applicant’s statements to the media had sought to distort public opinion and influence the investigation and trial. He was arrested the following day, the 26th of December, near his home. He says that he was not informed of the reasons for his arrest or given a copy of the charge sheet. He was then brought before a court, which ordered his pre-trial detention as requested by the investigator, without examining his arrest. The detention was subsequently prolonged for an undetermined period. The Court made the decision that sections of Article 5 guaranteeing that arrests must be lawful and not arbitrary; that applicants must be informed of the reasons of arrest; that applicants have the right to be brought promptly before a judge; and, that applicants have the right to proper judicial review of the applicant’s detention were all violated. Additionally, in Ilgar Mammadov v. Azerbaijan,46 in 2014 the restriction of the applicant’s liberty for purposes other than bringing him before competent legal authority on reasonable suspicion of having committed an offence were found to be a violation. The applicant was an opposition politician with a history of criticising the Government. He had maintained a personal internet blog on which he commented on various political issues. On the 24th of January 2013 he travelled to Ismayilli, a town where rioting had broken out the day before. He described his impressions in blog posts in which he suggested that at least part of the official Government version of the events may have been untrue and was an attempt at a cover-up. On the following day the Prosecutor General’s Office and the Ministry of Internal Affairs said in a joint press statement that the applicant had committed illegal actions which were calculated to inflame the situation in the country and would be fully and thoroughly investigated and receive legal assessment. The applicant was invited for questioning on three occasions before being charged with criminal offences and remanded in custody. His appeals against that measure were rejected. The Court decided that there had been a violation of Article 18 of the Convention, that states that the restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed. The applicant’s arrest had been linked to his specific blog entries, in particular, his post on the 28th of January 2013, which included sourced information shedding light on the “true causes” of the Ismayilli protests, which the Government had reportedly attempted to withhold from the public and which had immediately been picked up by the press. Even though the prosecution had not 46

Ilgar Mammadov v. Azerbaijan, App. No. 15172/13 (Eur. Ct. h.r. 2014).

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made any express references to the applicant’s blog entries, the accusations against him had first been made in the official press statement issued a day after the post, and he had first been invited to the Prosecutor General’s Office for questioning on the same day. There was nothing in the case file to show that the prosecution had any objective information giving rise to a suspicion against the applicant at that time, and it had not been shown that they were in possession of any such information or witness statements at any point prior to his arrest. The above circumstances indicated that the actual purpose of the impugned measures had been to silence or punish the applicant for criticising the Government and attempting to disseminate what he believed to be true information the Government were trying to hide. Accordingly, the restriction of the applicant’s liberty had been applied for purposes other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence. A breach was also found of Article 6 § 2. The Court had consistently emphasised the importance of the choice of words by public officials in their statements before a person had been tried and found guilty of a particular criminal offence. In the applicant’s case, the impugned remarks had not been made in the framework of criminal proceedings but as part of a joint press statement by the Prosecutor General’s Office and the Ministry of Internal Affairs. The Government claimed that the purpose of that statement had been to inform the public about the steps taken by the authorities in connection with the Ismayilli events, and in particular, their intention to investigate the applicant’s involvement in those events. However, the statement, assessed as a whole, had not been made with necessary discretion and circumspection. By stating that the applicant’s actions were “illegal” and that “it has been established that [the applicant] made appeals to local residents . . . , such as calls to resist the police, not to obey officials and to block roads,” the authorities had essentially prejudged the assessment of the facts by the courts. As such, the impugned statement must have encouraged the public to believe the applicant guilty before he had been proved guilty according to law. The Court also held a violation of Article 5 § 4 of the Convention. Breaches of the European Convention on Human Rights were found in each of the cases I brought forth, showing perhaps a need for Eastern European countries to take more seriously constitutional and institutional reform ­involving its judiciary and violation of human rights. viii Conclusion In this article I presented the development of the current discourse on judicial independence and human rights in Europe, firstly through the creation of the

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Council of Europe, and its institutionalisation of the European Convention on Human Rights, which established the European Court on Human Rights. The European Union later constitutionalised its commitment to human rights with the Lisbon Treaty, and with the construction of the European Court of Justice. I have shown the importance of judicial independence. We see from the examples of jurisprudence that I have brought the differences between the jurisprudence of the European Court of Human Rights on countries in Western Europe and those in Eastern Europe. The jurisprudence regarding the Western Countries of Europe involve attaining judicial independence and separation of powers on the administrative level, and trying to prevent any conflict of interests between judges and their counterparts in the legislature and executive. Standards of impartiality have been applied rather strictly in the decisions from Western Europe, and in terms indicating that they reflect an international law standard of judicial independence. At the same time in Eastern Europe, we can see that as a result of the differing history, there are more violations of human rights such as freedom of expression, freedom of assembly and association, and violations of rights against unlawful arrests and detentions, than just issues with judicial independence.

chapter 3

Reflections on Judicial Independence Marcel Storme The world congress of the International Association of Procedural Law was held in Moscow, hosted by Professor Dimitri Maleshin. At the conference many esteemed colleagues such as Professor Sergey Nikitin, Professor Shimon Shetreet, Dmitri Magonya and other members of the association gathered together to make the Moscow Congress of 2012 a prestigious and important turning point in International Association Procedural Law. Professor Shimon Shetreet has been ingeniously innovating and organising many conferences on Judicial Independence since 1981, including conferences in Ghent, Salt Lake City, San Diego, Hong Kong, Jerusalem, Liechtenstein, Wien, Kraków, and many more, in which countless articles of importance have been written, and many books have been published. A basic question concerns the qualification of the Mount Scopus International Standards. They are indeed not mandatory. One can, however, turn to the philosophies of the Belgian legal philosopher Prof. Chaim Perelman (1912–1984), a Polish-born philosopher of law, who became a Belgian professor and was the founder of the audience-doctrine: “Since argumentation aims at securing the adherence of those to whom it is addressed, it is, in its entirety, relative to the audience to be influenced.”1 According to this doctrine the International Association of Judicial Independence and World Peace attempts since more than 30 years to ‘establish a sense of communion centred around particular values in case the independence of the judiciary – recognized by the audience.’2 Legal standards are the result of an open discussion of lawyers in an audience where a persuasive consensus about the content and formulation of legal rules can be reached. In 1981 in Mount Scopus, Jerusalem, the association discussed the idea of a first draft of International Standards of Judicial Independence. The association, however, was not successful at first in convincing the English about the favourability of the principle of separation of powers, due to the status of the Lord Chancellor, as Minister, Member of Parliament and Judge.

1 Chaïm Perelman, Lucie Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argumentation 19 (John Wilkinson & Purcell Weaver trans., University of Notre Dame Press 1991) (1969). 2 Id. at 51. © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_004

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In the early hours of the morning, after much deliberation, a text was decided upon in the attempt to placate the British, beginning with the words “Except when for historical reasons….” This text became the New Delhi Code of Minimum Standards of Judicial Independence 1982. The compromise that was decided upon was when the non-separation of powers stemmed from a long democratic tradition, such as was the case in England, the principle of separation of powers is not necessarily violated. Additionally, in 2005, the then Prime Minister of England, Tony Blair, slightly changed the traditional status of Lord Chancellor as holding an executive and judicial role simultaneously, to a status more in line with the New Delhi Code of Minimum Standards of Judicial Independence. This was deemed a great success of the association, as it was another step on the road to securing the standards of judicial independence around the globe. This demonstrates the importance of the conferences of the International Association of Judicial Independence and World Peace being organized in different countries. This gives not only the opportunity to bring new “nuances” to the Standards, but also to examine the situation of the Judiciary in the hosting country. For example, the Moscow Conference of 2014 shed light on the struggle of the Russian Judiciary to uphold Judicial Independence in the last 25 years, as explained at the conference by Professor Yakovlev. In the last 30 years there has been a very large progress all over the world of the independence of the judiciary, as a result of the continued co-operation and academic research on the topic of judicial independence. The main trends in the field of the mission of the judge are: a. b.

Activism of the judge; Managerial justice; both tendencies improve the independence of the judiciary; and, c. Accountability The most interesting example of the activism of the judge is of course the Lord Woolf reform, but new rules in judiciary codes can be found in favour of more active judges in civil procedures. Managerial justice means that the presidents of judicial courts will manage financially and organize the functioning of their tribunals, which makes the independence of the judiciary still stronger. And finally, the accountability could not become an infringement of the independence. It is just the opposite. We try of course to look after the main conditions to stimulate the independence of the judiciary. Legal education and professional training are of course broadly accepted conditions, but the so-called main guarantee of the clarity of the law can be a

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bit puzzling. Even clear laws, whenever they are clear, always need interpretation. The rule “in claribus” is non-existing. A judge is not dependent on the law, since he has the freedom of interpretation. The tension between law and justice has been continuous for 2,500 years. The famous dialogue in Sophocles between Antigone and Kreon states that “It was not Zeus who has formulated this rule.” In a more modern example, the movie of Orson Welles demonstrates the tension between law and justice when he was asking the driver of a cab to bring him to the courts of Justice. The driver answered “There are no courts of justice Sir, there are only courts of law!” The main basic condition for independence of Judges to ensure that justice is carried out, is essentially the personal attitude of a judge vis à vis the powers that be. Regretfully, Montesquieu’s theory of separation of power is still not a universally accepted concept, but we are on the way. The so called Becketcomplex demonstrates this. When Thomas A. Becket was appointed as a Lord Chancellor he told to the King: “I was your friend Sir, but now I am your Lord Chancellor.” When the president of the Argentinian Supreme Court, who was known as a very partial judge was told about the Becket-complex, he reacted very furiously by saying “I was a friend of President Menem – and am still a friend of him.” Concerning the role of the Bar, recusal of judges is still a very difficult question. German Professor Luhmann formulated his “Gesetz des Wiedersehens.”3 Barristers and judges will meet each other daily during more than 30 years and are not inclined to attack each other. “Hodie mihi, cras tibi.”4 This law is a basic obstacle in our search for an independent Judiciary. In conclusion, the dream of independent judiciaries around the world is still one that needs to be realised. All citizens of the world should have access to an independent judiciary everywhere. We shall overcome one day.

3 Act of Reunion. 4 Today it’s me, tomorrow it will be you.

chapter 4

Judicial Independence and Judicial Accountability: Two Sides of the Same Coin Sophie Turenne

Introduction

A comprehensive programme of reform started in England and Wales with the Human Rights Act in 1998, and other reforms followed at the turn of the century. Thus in the Constitutional Reform Act 2005 (cra) the long-standing convention that government ministers must uphold the continued independence of the judiciary was formalised. Since the cra, the Lord Chancellor is no longer also the Head of the judiciary; he is now a pure politician, and a member of the House of Commons, and only in the view of the Prime Minister does he need to be qualified. Under the cra, judges are now appointed by an independent commission (the Judicial Appointments Commission); judicial discipline is now monitored by an independent body, the Judicial Conduct Investigations Office (formerly the Office of Judicial Conduct); and the highest court of appeal, also a quasi-federal court for the uk, is now housed separately from the higher chamber of the legislature. In addition, the Lord Chancellor and Lord Chief Justice are partners for the governance, financing and operation of the courts: they jointly agree the funding for the agency in charge of court administration. The cra also introduced some formal safeguards for judicial independence, that is, some new mechanisms for appointing, training and disciplining judges. As a consequence of these reforms, judicial independence and judicial accountability in the English context have never appeared so closely intertwined. Judges are not only accountable for their individual decisions by way of appeal and review, they must also, as a collective, deliver justice in a timely and efficient manner (i). In the past, parliamentary scrutiny of the judicial business seemed to be mainly disciplinary, with judges taking the blame, and forfeiting their judicial office for what went badly wrong.1 By comparison, today, judges

1 Vernon Bogdanor, Professor, King’s College London, Parliament and the Judiciary: The Problem of Accountability, Address at the uk Public Administration Consortium (Feb. 9, 2006).

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_005

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regularly talk to Parliament in Select Committees’ public meetings about the organisation and administration of justice (ii). But judicial accountability is circumscribed by the principle of judicial independence in adjudicating disputes. Judges cannot be in any way subordinate to the wishes of the executive power and, as they engage with Parliament, they must refrain from commenting or criticising the government on policy issues, for fear of being perceived as political and losing public confidence in them. This does not mean, however, that judicial accountability is only enhanced at some cost to judicial independence, or vice versa. We suggest that it is possible to further both aims with a more direct engagement with the public, recognising that the judicial reasoning process must be made comprehensible to the community at large, and trusting in turn that judges will be – and will be recognised as – independent from both executive and legislature (iii). Justice is administered in the name of the people, and we suggest that public trust in the judicial institution can be strengthened through a wide range of institutional procedures, which have all in common their aim to make judicial decision-makers more reflective of society. In practical terms, then, judicial accountability requires a reasonable degree of openness and responsiveness to society and to individual members of society.2 i

Accountability to the Executive: The Economy of the Judicial System

Accountability usually requires a relationship of subordination – a particular individual or institution is required to account for the efficient use of the resources provided by the superior. Naturally, however, judges cannot be agent to a principal; they must stand apart from the parties and the government which funds them, for impartiality to be there and to be seen to be there. As judges became organs of the state through time, and since they are funded by the state, the issue has become that of their independence from the state. Here a distinction must be made between the necessary independence in adjudicating disputes and the accountability of the judicial institution in matters of judicial administration. The latter must be scrutinised, for there is no doubt that

2 Mauro Cappelletti, Who Watches the Watchmen? A Comparative Study on Judicial Responsibility, in Judicial Independence: The Contemporary Debate 550, 574–575 (Shimon Shetreet & Jules Deschenes eds., 1985).

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a timely and efficient administration of justice will sustain public confidence – provided that efficiency requirements do not encroach upon the judicial autonomy in the decision making process. In England, judges have been involved in the administration of courts since the Courts Act 1971, with the creation of the position now known as Presiding Judge. The development of accountability for resources within the public service has brought to light the great range of activities which support the judicial role of deciding cases. Today judges are expected to be managers of the judicial process, and they account to the Lord Chief Justice for their managerial responsibilities. The drive for efficiency and economy in the conduct of judicial business entails greatly increased managerial responsibilities upon judges, relating to caseload, deployment, and the allocation of particular cases. It is clear, too, that the approach adopted to adjust demand and supply for judicial services has been to request courts to do more with less. The managerial drive under New Public Management methods seems purely reactive, driven by a substantial reduction in the resources made available for justice.3 Either way, Presiding Judges regularly scrutinise performance statistics for their court centres and work with them to find ways of improving performance. Statistics deal with the workload, capacity and time taken for cases to come to trial. Key Performance Indicators are thus setting targets against, e.g., the proportion of days jurors overall on trial during their period of service before the Crown Court; the reduction of the average time taken from charge to disposal for adult charged cases before Magistrates’ Courts; community penalties within a certain period of time following the relevant failure to comply with a court order; increasing the volume of defended small claims completed otherwise than by a hearing (settlement); the percentage of care and supervision cases that achieve a final outcome for the child; maintaining the “very satisfied” element of the hmcs court user survey above a certain level. The English judiciary, as an institution, is therefore expected routinely to provide reports and statistics to the State (the Ministry of Justice) about the efficiency, effectiveness and the economy of the judicial system. This managerial drive is in line with the European trend: the European Commission for the Efficiency of Justice (“cepej”), a body created by the Council of Europe, has also developed a ‘checklist’ for Member States to scrutinise the quality of their judicial process.4 The European checklist is premised on the ground that the 3 Courts and Tribunals Judiciary, Lord Chief Justice’s Report 2014 (uk). 4 Eur. Comm’n for the Efficiency of Justice, European Judicial Systems Edition 2012(2010 Data): Efficiency and Quality of Justice, Council of Europe(2012), http://www.coe.int/T/dghl/ cooperation/cepej/evaluation/2012/Synthese_Version_finale_en.pdf.

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administration of justice is not simply about delivery of a service.5 Individuals from all backgrounds are entitled to demand an adequate level of protection for their rights, just as they are entitled to demand an adequate health or transport service.6 Quality is understood in a quantitative way, with the measure of the resources (e.g., expenditure and staff numbers) and time needed for numerous courts’ activities. As noted above, the measures do not apply to the judicial decision itself, and they do not aim to reflect the complexity of cases and specialism of the law.7 English judges thus now share with continental judges the constraints of a bureaucratic institution such as the Courts and Tribunals Service, which manages the judicial business. Importantly, the partnership between the Lord Chancellor and Lord Chief Justice for the governance, financing and operation of the courts allows for some degree of conciliation between the managerial and legal values: justice must be delivered in a timely and efficient manner, but above all in a just manner. Contini aptly notes that generally “the requirement of measurability permeating the managerial methods…makes difficult to embed into these models the key values related with the fair trial and the rule of law.”8 It is indeed not obvious that the drive towards greater efficiency in quantitative terms leads to greater “quality” of justice. A speedier process supports better quality of justice – “justice delayed is justice denied.” But efficiency gains may only go so far. Efficiency requirements may also simply reflect a lack of financial support from the executive, and this will equally raise issues of public confidence. The lack of a proper it system or the limited number of adequate building and courtrooms for hearings may have a detrimental impact on judicial behaviour. Judges may thus become more strategic when sentencing and, for example, rely to a greater extent on the facts as presented by the Crown Prosecution Service in order to gain time. Judicial independence is under threat if judges constantly assume the correctness of the case made by the Crown Prosecution Service. A fine tuning of these efficiency requirements is thus required for public confidence in the judicial process to be sustained. 5 Eur. Comm’n for the Efficiency of Justice, Checklist for promoting the quality of justice and the courts, Council of Europe 2(Aug. 29, 2008), http://www.courtexcellence.com/~/media/ Microsites/Files/ICCE/ChecklistforPromoting.ashx. 6 Judicial adjudication has been argued to be a public service for the enforcement of rights. See Adrian Zuckerman, Civil Litigation: a Public Service for the Enforcement of Civil Rights, 26 Civ. Just. Q. 1 (2007). 7 Courts and Tribunals Judiciary, Lord Chief Justice’s Report 2010–2012, 56 (uk). 8 Francesco Contini and Davide Carnevali, The Quality of Justice in Europe: Conflicts, Dialogue and Politics, in Handbook of Judicial Politics (Ramona Coman & Cristina Dallara eds., 2010).

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Accountability to Parliament: The Need for Dialogue

Le Sueur observed in 2004 that, especially in relation to the highest courts, “there are insufficient formal opportunities for interaction between the senior judiciary and Parliament”.9 In more recent years, however, the Parliamentary forum has provided for the oversight of the judiciary. Parliamentary questions and debates on justice, the appearance of senior judges during Select Committee inquiries, as well as reports to Parliament, have multiplied. Thus, the debates leading to the Constitutional Reform Act 2005 reflected the full engagement of Parliament with these constitutional matters. The work of these Parliamentary committees is public and their discussions therefore contribute to greater transparency about the judicial business. But this more recent form of judicial accountability remains subject to the conventions regulating judicial speech.10 As a result, any discussion with judges is likely to have a limited impact, for fear to prejudice an issue which may fall to be decided in some context or other in court. Let us now examine the main ways for judges to engage with Parliament. First, the uk Supreme Court is now required to produce an annual report to Parliament. The Annual Report and Accounts, in its current form, puts the emphasis on the judicial work outside the courtroom. It provides an account of the organisation and administration of justice, and includes data demonstrating the efficient use of the Court budget. This can be seen as an ­explanatory form of accountability,11 to the extent that the Report publication per se explains and promotes the Court’s good practices. The Supreme Court judiciary is expected to demonstrate satisfactory performance in light of various indicators agreed by the profession and the Courts and Tribunal Service. The Report 9

Andrew Le Sueur, Developing Mechanisms for Judicial Accountability in the uk, 24 Legal Stud. 73. 10 As a matter of principle, the judicial office requires the reticence to speak out, as opposed to an absolute silence. SeeLord Hope of Craighead KT, Deputy President of the Supreme Court of the United Kingdom, Presidential Address at the Holdsworth Club, What Happens When a Judge Speaks Out?11 (Feb. 19, 2010). Some clear boundaries are in place: a judge will not offer public endorsement to a politician standing for election, or express public criticism of the fitness of a colleague appointed to the Bench (Judicial Executive Board, ‘Guidance to Judges on Appearances before Select Committees,’ paras. 3, 8 and 9). A judge should refrain from answering public criticism of a judgment or decision, whether from the bench or otherwise. Judges should not air disagreements over judicial decisions in the Press (Guide to Judicial Conduct, 8.1.1). 11 Bondanor, supra note 2.

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still contains some brief summaries of the cases adjudicated during the year, but they fall short of engaging with a substantive review of the Court’s adjudication. This contrasts with some other European Supreme Courts such as the French Cour de cassation and Conseil d’Etat. The French Courts focus on selected topics, and this requires a lengthy doctrinal and case law analysis, but these Courts will carefully avoid engaging with the merits of a specific case. In the English context, a similar emphasis on substance would be appropriate, not least because some parliamentarians seem genuinely ignorant of much of the business of the courts. The latter point has been acknowledged by the current Lord Chief Justice, who has visits to the courts by the Members of the Justice Committee, in addition to meetings between the Lord Chief Justice and the Chair of the Justice Committee, as well as with the Clerk of the House and other senior Parliamentary officials. Second, the presentation by the Chairman of the Judicial Appointments Commission to Parliament of the process behind the appointments made at the uk Supreme Court is a welcome development. Third, the Lord Chief Justice is also invited to appear every year before the House of Lords’ Select Committee on the Constitution, and sometimes before the House of Commons’ Justice Committee. Thus, in a recent appearance before the latter Committee, the Lord Chief Justice declared that he would be happy to expand the scope of the annual report submitted to Parliament if Parliament so wished,12 and he has asked Members of Parliament to clarify what they wanted to see in that report. This development must be approved, as we expect that report to be aimed at educating a wider public beyond the legal community. Indeed, the Lord Chief Justice’s Report for 2014 is rather detailed, “explaining how the judiciary have administered justice across all jurisdictions” (excluding the uk Supreme Court from the scope of the Report), including a section on the steps taken to increase the diversity of the judiciary, an issue of concern for the public. The Report is expressly drafted to the attention of not just Parliament and the executive but also “the legal professions, business leaders and above all the public.” 12

See House of Commons, Oral Evidence: The Work of the Lord Chief Justice, Parliament of the United Kingdom(Apr. 2, 2014), http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/the-lord-chief-justices-report2014-and-related-matters/oral/8415.pdf; on May, 7 2014 the Lord Chief Justice was also interviewed by the House of Lords Constitution Committee of both Houses of Parliament. The Lord Chief Justice’s Annual Report is presented to Parliament pursuant to Section 5(1) of the Constitutional Reform Act 2005.

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Some might wish for a more explicit dialogue between judges, Parliament and the Government about the way in which legal rules are interpreted. How judges reason in their judgments must be likely to respond to the considered dispositions of the community as a whole.13 Parliament, one may further argue, is the representative forum for the people and, in that capacity, it has the authority to question judges on substantive matters, including the case law: judges must be able to explain how they have taken decisions in the interests of the community. The question has been raised in relation to prelegislative scrutiny, when a Bill is discussed in Parliament, and in relation to post-legislative scrutiny, where Parliamentary Select Committees make inquiries into the way in which the courts are interpreting and applying legislation. The Lord Chief Justice however confirmed in 2008 that the judiciary’s role in any pre- or post- legislative scrutiny exercise is to comment only on the practicality of the drafting and the workability of policy for the Courts. This was reasserted by the current Lord Chief Justice, emphasising that judges do not wish to comment publicly on either the policy behind or the technical natureof an amendment (in the case of an invitation to comment on draft legislation) for fear of being embroiled in a defined political process.14 Judicial evidence to Parliamentary committees remains, according to the Lord Chief Justice, exceptional.15 Yet this conflicts with the House of Lords’ Select Committee on the Constitution which considers post-legislative scrutiny, at least, highly desirable: it “should be undertaken far more generally,” as a way to boost the level of constructive dialogue between Parliament and the courts.16 But judges prefer to make their decisions after hearing adversarial argument from both sides to any dispute and one anticipates that the judges will be of one mind on this issue. Here again we find one situation where the apparent furtherance of accountability may come at a cost to independence. The closest we can expect in terms of substantive debate might be that judges should respond to criticism from Parliamentary and independent bodies, e.g. when the Joint Committee on H ­ uman Rights investigated the courts’ interpretation of the notion of “public authority” under Section 6 of the Human Rights Act 1998 and

13 14 15 16

Phillip Pettit, Representation, Responsive and Indicative, 17 Constellations: An Int’l J. of Critical & Democratic Theory 426, 431 (2010). House of Commons, supra note 13. Courts and Tribunals Judiciary, supra note 8, at 28. Select Committee on Constitution, Relations between the Executive, the Judiciary and Parliament, 2006–2007, hl 151, 130 (uk).

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concluded that the courts’ interpretation had been too narrow.17 This may be desirable whenever the legal issue is also of great political interest. In such case those who represent the judiciary can limit themselves to an interactive discussion in which their role is no more and no less than to explain the reasons for their own decisions, so that the political body which is due to make its own decisions and recommendations can do so on an informed basis. This is especially so when the issue is one that tends to be distorted in the media and from which some politicians may have their own misconceptions; examples from this in human rights law are not uncommon in the United Kingdom. iii

“Social” Accountability

We now turn to the main reason for judicial accountability: judicial decisions ought to be generally accepted and approved by the community for trust in the judiciary to exist. Public confidence in the courts grounds their authority in adjudicating disputes and it also shapes their ability to keep the two other branches of the State in check. But trust in the courts is gained by procedures in various forms and shapes, and it is no slight offence to Parliament to suggest that these procedures extend beyond the Parliamentary scrutiny of the judiciary. The provision of reasons within the judgment, first, remains a traditional and essential form of judicial accountability. Public confidence builds upon (but is not exhausted by) accountability through legal reasoning. This refers to the individual accountability of a judge to other judges, as a group sharing an ethos, particular values and skills.18 It is a form of corporate accountability, as judges display skills according to standards set by the judicial profession;19 a wrong decision will be corrected by way of appeal or review. Yet there is also a widespread perception, among judges in particular, that their style of judgments and reasoning will or can enhance the popular acceptability of judicial decisions. This “explanatory” form of judicial accountability20 is based on the reasons provided for a judicial decision, so that the public can scrutinise 17

Joint Committee on Human Rights, Ninth Report 2006–2007, The Meaning of Public Authority under the Human Rights Act (h.l. Paper 77, h.c. 410); Joint Committee on Human Rights, Seventh Report 2003–2004, The Meaning of Public Authority under the Human Rights Act (h.l. Paper 39, h.c. 382); Law Commission, ‘Post-legislative Scrutiny’ (Cm 6945). 18 See Bondanor, supra note 2. 19 See Courts and Tribunals Judiciary, supra note 8. 20 Bondanor, supra note 2.

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the arguments made and possibly continue the debate after the judgment has been delivered. In practice, however, the primary audience for the judicial discourse tends to be the legal community. Decisions are drafted with lawyers in mind as readers.21 Each national legal culture will precisely shape the style of judgments and the judicial reasoning,22 the range and weight of justifications provided in any judgment. Thus, in France, policy considerations will not be included within the judgment, but lawyers know that these policy discussions can be found in various documents attached to the judgment, which are not publicised to the same extent as the judgment. Broadly speaking then, the institutional organisation of the judiciary conveys a particular view of the relationship between the judicial function and the community at large. In the French case, other mechanisms of accountability will strengthen judicial accountability, such as the Annual Report of the Cour de cassation, discussed in our previous section. Second, the principle of open justice ensures that arguments are properly ventilated and rebutted in public.23 Open justice addresses the c­ oncern that judges may neglect wider societal concerns, and this may legitimately impact on the extent to which their judgments win acceptance from some or even all sections of the community. Interestingly, judicial accountability is today characterised by a greater responsiveness from the judiciary towards citizens and the media. The traditional right to a public hearing and the right of access to information has been enhanced by solutions for new media and specific press rules. Annual open days are organised for lay persons to visit courts. Courts welcome students attending trials and shadowing the work of their judges. The judges’ obligations are to inform public knowledge and understanding about the law and its application. In other words, open justice is as much about transparency in courts proceedings as it is about accessibility, or intelligibility, of the judicial decisions. Lord Neuberger thus stated: “The openness must enable the public to engage with the judicial process in a meaningful and, if necessary, 21 22

23

Chaïm Perelman, Justice, Law and Argument: Essays on Moral and Legal Reasoning 131 (1980). Values, practices and concepts are integrated into the operation of legal institutions and the interpretation of legal texts in a specific way in each legal system. See John Bell, English Law and French Law – Not So Different?, 48 Current Legal Probs. 63, 70 (1995); John Bell, Judiciaries within Europe, 9–10 (2006). Lord Neuberger, President of the United Kingdom Supreme Court, Blackstone Lecture 2014 at Pembroke College: Tweaking the Curial Veil (Nov. 15, 2014). For a recent assertion of the importance of the principle of open justice, see Bank Mellat v. Her Majesty’s Treasury [2013] uksc 38, [2014] a.c. 700 (appeal taken from Eng.).

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critical way.”24 To that purpose, the uk Supreme Court provides a 2 page press summary of any of its judgments, and a concise oral televised summary; it also uses Twitter. The Court of Appeal also lifted the ban on televisions cameras in court in 2013. It is now, third, accepted that judges have a wider responsibility to dispel misconceptions about the law and the judicial office, and to promote access to justice and inform the public on legal matters of general public interest. This is perhaps why the judicial policy of free judicial speech outside the courtroom remains in force since 1987, subject to preserving judicial impartiality and the dignity of the judicial office. Today, the fear of appearing partisan only justifies circumspection and moderate language and not silence through an abundance of caution. Indeed, free judicial speech outside the courtroom helps the wider community to discuss, endorse, criticise, applaud or castigate the conduct of their courts on an informed basis.25 The greater willingness of the judiciary to respond to public criticism in recent years also “reflects the reality that the traditional stoic silence in the face of an ill-informed or even malicious attack is by no means the most effective way of maintaining confidence in the judicial system.”26 Public support depends, in part, upon public perception, and public support is also condition of judicial independence – it is easier to resist an assault on judicial independence with public support than in a context of public apathy. In recent times, the frequency of public speeches has increased, and they are systematically published on the judiciary website. In this context, one lecture must be mentioned. In 2003, Lord Woolf lcj delivered a critical lecture at Cambridge, on “The Rule of Law and a Change in the Constitution.”27 Lord Woolf spoke against the impending constitutional changes, such as the abolition of the role of the Lord Chancellor, which were made without any consultation of the judiciary and were announced in a mere government press release. He also expressed concerns at the creation of a Supreme Court. It is a fine line between commenting on matters of expertise and interest and entering the realm of political controversy. The topics addressed – the 24

25 26 27

Lord Neuberger, President of the United Kingdom Supreme Court, The Annual Conference of the Supreme Court of New South Wales, Sausages and the Judicial Process: The Limits of Transparency 5 (Aug. 1, 2014). South Africa v. Mamabolo 2001 (3) sa 409 (cc) (S. Afr.). The Hon. Ronald Sackville, 13th Lucinda Lecture at Monash University, How fragile are the courts? Freedom of speech and criticism of the judiciary 11 (Aug. 29, 2005). Lord Woolf, The Rule of Law and a Change in the Constitution, 63 Cambridge l.j.317, 320 (2004).

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constitutional reform of the Appellate Committee of the House of Lords, the abolition of the role of representation of the judiciary by the Lord Chancellor in Cabinet – all fall within the remit of judicial free speech. In our view, the depth of the changes and the casual approach to them by the government did justify the strong terms used by Lord Woolf in that lecture, which was widely commented upon in the media. Within the courtroom, in practice, judges sometimes offer comments and suggestions on law and policy. Trial judges can question the wisdom of legislation, and point out that a particular statute is creating what most people would regard as an injustice. For example, in 2009, a Crown Court judge criticised sentencing laws which he said left the courts unable to protect women from domestic abuse.28 While these criticisms are not common practice, they nonetheless blur the line on what is acceptable or not acceptable speech – and for that reason they cannot be approved: “[I]f it is accepted that a judge can comment on the operation of the law within a case, on what basis is it to be said that the fundamental value of free speech is to be confined outside the courtroom?”29 Further, if English judges are not the “remote sphinx type figures as the judge used to be thought of in the past,”30 one wonders how close to the ordinary citizen they should be: how much about their lives and their activities in the local community could we or should we know? Clare Dyer from the Guardian told the Constitution Committee in 2006–2007 that “people want to know more about the people they are reading about.” Professor Dame Hazel Genn also pointed that, as judges get involved on their initiative in their local communities, “there is scope for them to do more,” and “[i]t is important that somebody has responsibility for projecting positive images of the judiciary.” As a benign illustration, and a break from tradition, in January 2011, a bbc documentary showed four of the uk Supreme Court Justices, including the President of the Court and its Deputy President, in their everyday life. The documentary offered some basic information about the court, addressing what happens when judges can’t agree on a judgment. It also showed how judges did not think that 28

29 30

Judge criticises sentencing laws which do not protect women, The Telegraph (Sept. 6, 2009), http://www.telegraph.co.uk/news/uknews/6146882/Judge-criticises-sentencing-lawswhich-do-not-protect-women.html. See also Shimon Shetreet & Sophie Turenne, Judges on Trial: The Independence and Accountability of the English Judiciary, 372–373 (Cambridge University Press, 2d ed., 2013). Hon. Grant Hammond, Free Speech and Judges in New Zealand, in Judiciaries in Comparative Perspective 195 (H.P. Lee, ed., 2011). House of Lords’ Select Committee on the Constitution, Relations between the Executive, the Judiciary and Parliament, 2006–2007, hl 151, 153 (uk).

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they had the freedom to decide according to their personal opinions, and this, in itself, justifies, in our view, such a documentary. This leads us to one final observation. We have so far considered various ways in which the judiciary, as an institution, accounts for the conduct of the judicial business. These various ways – engaging with Parliament, demonstrating timeliness and efficiency in the administration of justice – all aim to preserve the independence of the individual judge: provided that the actual judgment operates within the existing institutional framework, individual judges should be trusted to reach a decision acceptable to the community or, at least, to express reasons with appropriate sensitivity. As Chief Justice Gleeson explained, “Confidence in the judiciary does not require a belief that all judicial decisions are wise, or all judicial behaviour impeccable, any more than confidence in representative democracy requires a belief that all politicians are enlightened and concerned for the public welfare. What it requires, however, is a satisfaction that the justice system is based upon values of independence, impartiality, integrity, and professionalism, and that, the system pursues those values faithfully.”31

Concluding Remarks

In democratic societies, checks and balances upon the judiciary create a continuous tension between judicial independence and the public accountability of judges.32 But the facets of accountability discussed in this article are all variations on the theme that power should not go uncontrolled and that even the controlling power should not be unaccountable, that it, itself uncontrolled. In that sense, judicial independence and judicial accountability are two sides of the same coin. Judicial accountability can be achieved in tension with judicial independence, not at the detriment of judicial independence. For that purpose, judicial accountability must be construed as a reasonable degree of openness and responsiveness to society and to individual members of society. As Mauro Cappelletti suggested, thirty years ago, the balance between judicial accountability and judicial independence can only be found by developing judicial accountability to the community at large, beyond accountability

31

32

Judge Jan-Marie Doogue & Judge Colin Doherty, Discussion at Jeff Simpson’s Asia-Pacific Conference, Accountability for the administration and organisation of the judiciary. How Should the Judiciary be Accountable for their Work beyond the Courtroom? (Mar. 2013). Lord Hailsham, The Independence of the Judicial Process, 13 Isr. L. Rev. 1, 8–9 (1978).

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to government and parliament.33 With this in mind, public trust in the judicial institution can be strengthened with a wide range of institutional procedures: with gains of efficiency in the administration of justice; a dialogue with parliament; the provision of accessible information to the wider community. By all means the components of public confidence in the judiciary can be more widely defined today than they were in the past. 33 Cappelletti, supra note 3, at 550, 574–575.

chapter 5

Judicial Independence in Italy Giuseppe Franco Ferrari i

Factors Affecting Judicial Independence

Judicial independence is conditioned by several factors. Some of them are analytically discussed by other authors in this same book: the clarity of statutes, the regulation of conflicts of interests, the capacity of access of groups to justice, the treatment of retired judges, the measure of creativity allowed by the judicial system, the special knowledge of some specialized courts, the accountability of judges, the constitutionality of acts of indemnity, the structure of the career of judges and prosecutors, the role of the bar and the legal profession, the existence of a system of appeals as of rights, and many others. Another factor influencing its concrete implementation is history: in the Italian case, the complexity of the historical evolution of the Judiciary has strongly influenced the status itself of judges and prosecutors, and the way the independence of the Judiciary has been progressively built up. In 1861, at the beginning of the life of the unitary State, the condition of judges was quite different according to the rules applicable in the pre-unitary kingdoms, grand-duchies, and territories under Austrian domination. At that point, there were four Courts of Cassation in Turin, Florence, Naples and ­Palermo, whose powers were organized according to the French model – i.e. included only the task to check that lower judges had committed no “contravention au texte des lois,” but excluding the control of any “quaestio facti” (“pas de toucher le fond des affairs”); a Supreme Court of Revision following the Austrian model in Verona served as a third instance court for cases when the first two decisions were not exactly coinciding; and two more Supreme Courts in Ferrara and Parma, following a hybrid model. In 1870, after the defeat of the Papal States, one more Court of Cassation was created in Rome, in order to make it the only one in the country in the future. The status of judges was very different as well, and needed to be unified. The unification process took a lot of time. The Cassation of Rome was made responsible for all criminal cases in 1888 by statute 5825, together with all the civil controversies to be decided in Grand Chamber, but a full unification for civil suits was introduced only by Fascism in 1923, and at the same time the retirement of old presidents and general prosecutors was imposed.

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The legal status of judges of the Kingdom of Sardinia and Piedmont was gradually extended to the whole of the national territory. Its Constitution of 1848 (“Statuto albertino”) stated at art. 68 that “Justice stems from the King and is administered by the judges that he creates,” while art. 69 prescribed that “The judges are nominated by the King and, with the exception of the justices of the peace (Pretori), cannot be removed after three years of service,” though an 1865 statute admitted removal due to “service needs.” According to the regulations applicable in Piedmont and extended to the whole of Italy, judges could be nominated after a public exam but also by Government through direct recruiting. Prosecutors depended from the Government and were charged also of monitoring the working of judicial offices. The proximity of the Judiciary to politics was demonstrated by the fact that from 1861 to 1900 in 34 Governments 17 judges were appointed ministers, and some of them ministers of justice; a relevant number of judges and prosecutors of higher rank were appointed senators. Prosecutors and judges were selected through the same procedures and used to exchange their posts after some years without any apparent problems. The social composition of the body of magistrates was very compact, with an obvious prevalence of small aristocracy and middle class members. With the 1890 Zanardelli reform, the justices of the peace (Pretori) were abolished and transformed into first level judges, making their legal status more homogeneous. Direct recruitment was made exceptional and the unification of the selection procedures of prosecutors and judges completed. The final reform of the Judiciary in the liberal age was approved in 1907/1908 during the Giolitti Governments under the direction of Vittorio Emanuele ­Orlando, Professor of Public Law and Minister of Justice on several occasions. This statute abolished all selection channels different from the public exam; it created a Council of the Judiciary, composed of half cassation judges elected by their colleagues and half members nominated by the Minister. The Council was charged with disciplinary proceedings and advice about the nomination to the main judicial offices to be carried out by the Minister; it activated judicial councils in all courts of appeal in order to supervise the carrying out of judicial functions. The career unification was completed through the new regulation of the initial training period. The reforms also introduced the principle that judges cannot be removed or transferred to different functions without their consent, apart from cases of “environmental incompatibility” and “harm to the prestige of the judicial order.” At the end of this reform, Minister Orlando stated that judges had been made “a privileged caste.” In 1909 the Council was rendered totally elected, with the exception of four law professors. Cassation judges had to be elected by all judges. At the same time, the Italian association

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of judges (agmi) was founded. At the time the total number of judges and prosecutors was about 4,000. ii

Impact of Fascism

In the last months of the liberal-democratic State, immediately before its collapse, the acting minister of justice of the Facta Government, Giulio Alessio, is said to have tried to activate the local prosecution offices in order to prevent or sanction fascist violence, like occupations of town buildings, riots, killings. Such pressure was not effective; the recently conquered independence apparently prevented prosecutors from feeling compelled to support police forces in reacting. The Association of magistrates labeled the fascist taking of power as “renewal.” The regime, however, did not return the favor. Immediately after the consolidation of the new regime the Mussolini Government abrogated the Council with its elective component and created a new one consisting of five members only, all designated by the Government itself (“Oviglio” reform). Between 1923 and 1926 about one hundred magistrates were expelled or compelled to retire, due to reorganization of offices, health reasons or explicit political motives: among them most members of the executive board of the agmi, and the prominent figure of Alfredo Occhiuto, accused of having been too diligent in the investigation concerning the killing of Giacomo Matteotti, a socialist member of Parliament, in 1924. In 1926, a ban was approved on judge associations and agmi decided to prevent it by self-dissolution. In 1926, a Special Tribunal for the Safety of the State was created and staffed with officers of the army, navy, air force and fascist militia, but partly also with judges and prosecutors. Later on, all civil servants, magistrates among them, were compelled to take an oath of loyalty to the regime; none of them seem to have refused. In the ‘30s classes of fascist culture were introduced for all magistrates, though in an unofficial form. Career progression was made dependent on evaluation by higher level judges and new assignments were entrusted not to the Council, but to ad hoc committees nominated by the Minister. In 1931, popular juries were abolished for most crimes. According to the words of Alfredo Rocco, a professor of criminal law and main author of both the Criminal Code of 1930 and the Criminal Procedure Code of 1931, independence was then “a state of mind”. Many cassation judges and prosecutors were nominated senators by Mussolini before the abolition of the Senate in 1938. In 1940, at the moment of a further reorganization, the Judiciary consisted of about 5,000 magistrates.

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Post-Fascist Reform

It is not hard to understand why the founding fathers of the Republic at the Constituent Assembly of 1946–1947 did not trust the Judiciary at all. Therefore, they decided, first of all, to create a new Constitutional Court, composed of professional judges only for one third, to control the constitutionality of statutes, instead of entrusting a such task to the Judiciary. Secondly, they included in the constitutional text all the most efficient guarantees in order to protect the independence of the judicial body. Article 101 thus states that “[j]ustice is administered in the name of the people. Judges are subject only to law,” while article 102 prescribes that “[t]he judicial function is carried out only by ordinary judges according to their statute included in the rules on the Judiciary. Extraordinary and special judges cannot be created. ­Special sections on specified topics can be created inside ordinary tribunals, even with the participation of competent citizens not belonging to the Judiciary. Cases and manners of direct popular participation to the administration of justice are regulated by a statute.” Article 104 goes on confirming that “[t]he Judiciary is a branch that is autonomous and independent from all other powers” and that “the independence of the Judiciary is guaranteed thanks to the institution of a self-governing body within the Judiciary.” One of the main guarantees of independence is the entrusting of all rules concerning the organization of the Judiciary and of each judicial authority to statutes (article 108.1). Another safeguard is the creation of the new High Council of the Judiciary, presided over by the President of the Republic and composed by judges elected by all ordinary judges of all categories and levels, for two thirds, and for the remaining third by “lay” members elected by Parliament in joint session from among university professors of law and lawyers with at least fifteen years of practice (article 104.3). The High Council has jurisdiction for the assignment, transfer, promotion and disciplinary measures relating to magistrates of all orders. A vice-president is elected from among the members designated by Parliament. All members remain in office for four years and cannot be immediately re-elected. While in office, they cannot work as lawyers nor serve in Parliament or in any regional council (article 104.7). Individual judges are appointed through competitive examinations (article 106) and shall be distinguished by function only (article 107), since the Judiciary does not have a pyramidal organizational structure. As far as the stability of their appointment is concerned, they may be removed from office or dismissed or suspended or assigned to other functions or offices only after a motion approved by the High Council of the Judiciary, with a specific motivation and the defensive guarantees established by the provisions concerning the organization of the Judiciary or with the consent of the judges themselves (article 107).

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Other guarantees are established in the interest of citizens, but contribute to increase the independence of the Judiciary as a whole and individual judges: for instance, the prohibition of creating special of extraordinary judges (article 102), implying the entrusting of competence to an ad hoc or a posteriori court; the ban on removing a case from the court that must hear it according to criteria pre-ordained by statutes (“natural judge”)(article 25); or the need to state reasons for every judicial decision (article 111.6); the principle of third party impartiality of the judge (articles 101.2 and 111.2). Obviously, several other constitutional principles guaranteeing the parties do not improve the status of judges, such as the reasonable duration of trials (article 111.2) or the equal confrontation of the parties (article 111.2). In terms of personal liability, judges are ordinarily liable for offences committed both as private individuals and in their capacity as public officials. In 1988, statute 117 of that year introduced a compensation for damages to the injured private party who has been deprived of his personal freedom following a denial of justice or as a result of willful misconduct or gross negligence. The compensation is charged on the State, which in turn can claim compensation from the responsible judge up to a maximum of one-third of his/her yearly salary at the time the procedure has been opened. There is, however, no limit in case of willful misconduct. Disciplinary liability is initiated by the minister of justice or the Advocate General of the Court of Cassation, through the High Council. Its first committee, working as disciplinary division, takes the first decision, which needs to be confirmed by the plenary session. Against such final decision an appeal can be lodged with the Grand Chamber of the Court of Cassation. The judge’s disciplinary responsibility can be activated due to failure to comply with his/her duties inherent to the exercise of the judiciary functions or any misconduct that could jeopardize the prestige of the Judiciary regardless of whether the fact occurred in the exercise of judicial functions. The final sanction may be a transfer, a decrease in salary or its freezing, a simple reprimand. iv

Recent Developments

Switching from the formal text of the Constitution, or from the law in the books, to the law in action, there are some factual conditions, which have gradually come to existence in the last four decades, jeopardizing the independence of the Judiciary as a whole and of individual judges and prosecutors. First of all, the representation of magistrates in the High Council is divided into political segments or components, usually called “streams” in the Italian political jargon. A left-wing component, called Democratic Magistracy (md),

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now allied with other smaller segments composing the so-called Area, confront with a right–wing segment, Independent Magistracy (mi), while in the center of the ideological spectrum is Constitutional Magistracy (Unicost). Recently, Advocate General Ciani admitted in a widely circulating newspaper that some of the most important offices may have been assigned according to the political qualifications of the nominees and to the majorities existing in the Council. Therefore it may happen that talent and career experience are underestimated or subordinated to ideological factors. Furthermore, since the careers of prosecutors and judges follow the same track, and a magistrate can work as prosecutor for years and then be switched to a judicial appointment or the other way around, ideological preferences risk influencing even strictly judicial functions. Second, the constitutional principle of compulsory criminal prosecution (article 112) is hard to implement because of the growing number of crimes and the impossibility of investigating and prosecuting efficiently all misdemeanors. Unlike the other Western countries, starting from the United States, there are no general guidelines as to types of crimes to be preferentially or more efficiently prosecuted, because such limitation on prosecutorial and judicial discretion has been, up until now, considered intolerable. Under such conditions, individual preferences may condition the selection of cases to be investigated or prosecuted and even the proposition of appeals against subjects acquitted in first instance. Third, some aspects of the criminal procedure have developed critical problems, which are not compatible with the European Convention on Human Rights and the case law of the Strasbourg Court. The duration of investigations can be extended up to three times for six months each, easily reaching two years, including summer suspensions. Telephone interceptions and bugging are widely used, often to find evidence and not to corroborate already collected facts. Preventive detention is used widely and parole is almost unknown. The number of prisoners, including preventive detainees, largely exceeds the available jail places several times: Italy has been convicted by the Strasbourg Court, and the last deadline to solve this problem expired at the end of May, 2014, without finding a viable solution. Parliament could be compelled to adopt general measures of pardon. Finally, the length of civil suits is also excessive, so that the opportunity itself of introducing a controversy is often questioned and alternative dispute resolutions are often preferred. These and other improper evolutions of the whole system risk jeopardizing the conditions of real independence of the Judiciary as a whole and of individual judges and prosecutors. Remedies are to be found without c­ ompromising

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the applicable constitutional principles, and among them independence. A balance is to be struck between the fundamental rights of the individual involved in the criminal process, elementary exigencies of efficiency of the functioning of the Judiciary, both in the civil and in the criminal field, compatible with the ECtHR standard, and the independence of the Judiciary; between a full respect of the right of judges to express opinions, even in political terms, and the diffused need of complete impartiality in the working of the judicial function. This is possibly the main task that Italian institutions have to confront in the next years.

chapter 6

Administrative Justice and the Independence of the Judiciary Graham Zellick i

Binary Justice

All countries have a court system. Most (if not all) also have a parallel system of court-like bodies that adjudicate on a range of specialised disputes, usually between the citizen and the administration. These bodies have a variety of labels: they may be called tribunals or even courts. They may be presided over by someone called a judge. In some, the decisions may be appealed to or otherwise challenged in the ordinary courts; in others, any appeal or challenge is restricted to another (albeit superior) body outside the ordinary court system. I wish to focus on this parallel judicial system and offer some thoughts on administrative justice and the rule of law in general and more particularly the independence of the judiciary. ii

Terminological Objections

Labels are not, of course, determinative and the expression “administrative justice” is to some unobjectionable. It is said that the term corresponds, for example, to civil justice and family justice and gives parity of esteem. I suggest that, in fact, it does the opposite and diminishes administrative justice by implying that it is distinctive in subject matter when it is not. Civil justice and family justice describe the nature of the work they do: administrative justice describes chiefly the way in which it is done or the place where it is done. In my view, the term “administrative” when used in conjunction with justice and tribunals is problematic. It implies that administrative justice is materially different from the ordinary civil justice administered by the courts; that it is really a part of the State’s administrative arrangements rather than an integral part of its judicial system; and that administrative tribunals are fundamentally and conceptually distinct, and different, from those bodies ­labelled “courts.” My thesis is that this analysis is wrong in principle and has disturbing implications.

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As much as I dislike the terms “administrative justice” and “administrative tribunal,” because of these profoundly misleading implications, I shall perforce use them in the course of this paper because they are understood, albeit without clarity or precision. I prefer the term “tribunal justice,” though again only for the purpose of referring to the practical arrangements in place: my argument is that conceptually the two systems are in principle identical, even if some operational features distinguish them. iii

Distinguishing Features

Administrative justice is the method for resolving the many disputes that arise in the modern State between citizen and the government in such areas as social security, welfare benefits, tax, immigration, asylum, deportation, freedom of information and data protection and so on. In Britain, it covers, for example, criminal injuries compensation and the release of patients detained under mental health legislation and even extends to certain disputes where the State or Government is not a party – such as employment, anti-trust (competition), and landlord and tenant. The common or unifying theme of tribunals is the desire to provide for the speedy, economical and simple resolution of disputes without resorting to the mainstream legal system with its notorious delays, complex procedures and expense. If all these tribunal cases were added to the work of the ordinary courts, the delays there would be exacerbated. Another advantage is that the work in tribunals can benefit from adjudication by specialists who are proficient in the detailed and often complex law and regulations that govern these areas and are therefore able to dispose of cases more speedily and economically, especially where there is no legal representation, as is often the case. A feature of tribunals is that, unlike the courts, they can be multi-disciplinary and may include psychiatrists, physicians, economists, surveyors, valuers or other experts in addition to lawyers. Several points arise from the above. First, any matter vested in a tribunal could just as easily and properly have been entrusted to a court; and there are many disputes within the jurisdiction of the courts that could just as plausibly and reasonably have been vested in tribunals. Work has generally been assigned to courts or tribunals on a less than coherent or principled basis. Secondly, there is much that courts might learn from tribunals in the way that they deliver justice – such as simplified procedures, modified rules of evidence, relaxed rights of audience and multi-disciplinary benches.

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Thirdly, there are non-judicial mechanisms for the resolution of “administrative” disputes or grievances that are entirely legitimate and do not need to be classified as judicial – internal administrative review and Ombudsman-style arrangements, for example. But there comes a point at which judicial decisionmaking is essential and inescapable and at that point so-called administrative justice and court justice are essentially the same animal, even if operating in separate streams and with discrete labels. iv

Application of the Rule of Law

Some countries still embed adjudicative mechanisms within their administrations. That is questionable, even if the administrative judge enjoys a degree of operational separation and independence from the department. The fundamental principle is that it is not open to the State to circumvent the requirements of the rule of law, the independence of the judiciary and due process by so classifying particular categories of dispute that they do not attract those principles or by diverting them to bodies or processes that fail to adopt them. The fundamental question, therefore, is what disputes should attract these standards or guarantees? Art. 6(1) of the European Convention on Human Rights, for example, introduces the concept of “civil rights and obligations.” There is a considerable jurisprudence expounding the meaning of this term, but it remains opaque and elusive. Oddly for a human rights document, it throws the emphasis on private law disputes, but by no means excludes all public law litigation. Its lack of clarity and limited reach means that it is not a satisfactory basis for defining in domestic law the disputes or grievances that should be resolved either in a fully judicial context or at least where the adjudicator is fully independent. I propose the following as the appropriate constitutional principle. Every person in a legal dispute with the State (which includes any public body or authority that is an emanation of the State) which has not been resolved by agreement must have the right to bring that dispute before an independent adjudicator. That does not preclude non-independent arrangements at an earlier stage, but if there is no settlement or agreement, independent adjudication must be provided. That does not always and necessarily mean a process that has all the attributes of a court and all the panoply of due process. Ombudsman-style or other inquisitorial processes that do not involve public hearings may be appropriate even where the issue may be described as a legal dispute and not merely an

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a­ llegation of maladministration, provided that the decision-maker enjoys all the essential attributes associated with judicial independence. What this principle will not accommodate is dispute resolution mechanisms that fail to secure independence even if the adjudicator is called a judge and he or she operates a system that approximates to a typical judicial process. Administrative processes that merely resemble or mimic courts or due process will not suffice. Administrative courts and tribunals should not therefore be seen or treated as part of the administration, but as part of the justice system. The concept in the United States, for example, of the “non-Article iii judge” – referring to the provision in the U.S. Constitution establishing the judiciary – is not only a contradiction in terms but anathema and offensive to human rights principles. The only non-Article iii “judges” should be found in tv talent contests, beauty pageants, ice-skating tournaments and dog shows. v

Two Parallel Systems

The two-stream system established in the uk by the Tribunals, Courts and Enforcement Act 2007 – following the Leggatt Report in 2001 (Tribunals for Users: One System, One Service) – was a notable advance in bringing together a large number of separate tribunals functioning under the aegis of the relevant government department into an Upper Tribunal and a Firsttier Tribunal (each divided into chambers and each with a number of different jurisdictions). These parallel the courts (High Court and County Court) and converge in appeals to the Court of Appeal and the Supreme Court. The creation of this Unified Tribunal System at first allowed the bringing together of each tribunal’s administration into a single Tribunals Service, but this was soon followed by the merging of the Courts Service and the Tribunals Service into a single administrative body (Her Majesty’s Courts and Tribunals Service) under the Ministry of Justice for the entire justice system. A further feature of these arrangements is that, while court and tribunal judges are distinct, they may be authorised to sit across the divide; and all are appointed on the recommendation of the independent, statutory Judicial Appointments Commission. In most respects, tribunal justice has become largely indistinguishable from court justice. It has become more formal, though robes are not worn and the rules of evidence do not normally apply; the rules of procedure are strikingly similar to those in the courts, though the costs regimes may differ; precedent

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applies just as strictly; and the judges enjoy the same security of tenure, immunity and independence as the courts judiciary. One difference is that tribunals tend to be more interventionist than the ordinary courts. More questions may be asked by the judge and points or lines of argument raised. This may partly be because the claimant or appellant is commonly unrepresented and partly because the judges are specialists and may identify issues or points not raised by the parties or their representatives. Tribunals are for this reason often erroneously said to be inquisitorial, but they remain essentially adversarial. They may be inclined to intervene a little more in the proceedings in the overall interests of justice. It is interesting to observe the parallel trend in the English justice system for the courts to become more specialised – the Commercial Court, Administrative Court, Admiralty Court, Patent Court, Technology and Construction Court, for example – recognising the advantages of specialisation pioneered in tribunals. vi

The Future

I foresee further convergence between tribunals and courts in Britain and eventually a single, unified system of adjudicative bodies, all styled courts, but with bespoke membership and procedures designed for the work assigned to them. There would be a single system of civil justice composed of courts of general jurisdiction and of special jurisdiction. Those countries which still embed their arrangements for so-called administrative justice within their administrations could learn much from these developments in the uk, but whatever system is in place, the bodies charged with deciding these disputes must without qualification enjoy the independence that is associated with the judiciary in free and democratic societies.

Part 2 The Challenge of Careful Drawing of Boundaries of Judicial Function

∵

chapter 7

Limits of the Law Esther Hayut

Opening Remarks

Before I begin my lecture about the limits of the law I would like to congratulate Professor Shimon Shetreet for the publication of the comprehensive and updated second edition of his book – Judges on Trial. This book was written in collaboration with Sophie Turenne, a lecturer from Cambridge who teaches comparative law, constitutional law and European law. Although the book focuses on the judicial independence in the English legal system, one cannot exaggerate the importance and relevance of judicial independence to any legal system. This is true both in terms of independence at the individual level of each judge, and in terms of the independence of the judicial system at the institutional level. That being said, it is important to remember that the culture of judicial independence is not a goal in itself but rather a means to protect and strengthen the rule of law and the administration of justice. So, congratulations to Professor Shetreet for the publication of the second edition of his book, and now I turn to the subject on which I was invited to speak today – legal boundaries and limitations. While preparing for the lecture today I tried to define the question of the role of the law in our lives in a more concise way. It is an issue that generations of philosophers, intellectuals and legal experts have tried to deal with. Many books and articles have been written in an attempt to answer this question. Simply, it can be said that the law provides rules that allow people to live together as a society. In the most fundamental and essential way, we realize that rules are required because without rules that determine what behavior is permitted and which is prohibited, people would exist in a state of constant war described by the philosopher Thomas Hobbes in his book Leviathan. An existence described as a war of “all in all,” in which the person lives a short, bestial and lonely life in constant fear of death by force. Rabbi Chanina Sgan HaKohanim, who was called to pray for the royals, also speaks about this state of life without the law, and says that without the fear of the government, “men would swallow each other alive.”1 In other words, without the rules of conduct and one common 1 Mishna Avos 3, 2.

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power that will impose its fear on everyone, the strongest would impose his will on the weaker ones, and the one who is physically or mentally weak would always be exploited, discriminated and hurt. It is from that basic need that the law developed. The law consists of a set of rules that incorporates almost all aspects of our lives and is designed primarily to protect the individual from harm and injustice done to him. However it is important to remember that the law does not, cannot and should not dominate all aspects of our lives. There are areas that the law chooses not to engage with, and there are areas that even if it is proper for the law to deal with, the reality of life still comes before the law and creates situations that the law has not yet given them an answer. There are also cases in which rules and limits that are set by the law itself prevent us – the jurists – from giving them a proper legal response. I would like to specify the above statement with a few examples concerning each topic I raised: A. Issues that the law should deal with, but since the reality of life comes around before the law, situations are created to which the law has not yet found a suitable solution. B. Issues that the law chooses not to deal with, or refrains from dealing with. C. Issues that the rules and limitations that were set by the law prevents us – the jurists – from giving them a proper legal response. As will be explained below, there is a close connection between the limits of the law and the limits of the judiciary. Nevertheless, there is of course a clear distinction between these two subjects.

Reality that Precedes the Law

As aforementioned, there are some issues with which the law does not keep up. There are new realities, like the development of technology and medicine, which have not yet been addressed by the law. In the absence of legal directions, it can be difficult for us as judges to handle problems or conflicts created as a result of that new reality. In these situations we are often required to use judicial legislation and come up with creative solutions. Judicial legislation enables us to keep the law dynamic and flexible, as in contrast to legal theorists, a judge cannot leave conflict unanswered. An interesting story in this regard is that of Jeanne Gaakeer, a Dutch judge and professor of jurisprudence in Rotterdam, who refers in her article on literary-legal remedies to a Dutch Act from

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1829 in which Article 13 determines that the court must rule in all cases; no judge may refuse to render verdict by claiming a lack of law, insufficiency or ambiguity of law and can be prosecuted if he does.2 Such a law was not legislated in Israel but as I explained, we as judges are sometimes required to fill in what the law lacks by way of judicial legislation. An example of legislation that clearly did not evolve with the reality of life in Israel is the legal arrangements concerning copyright law until 2007. The law that was in effect until the enactment of the new law in 2007 was an ancient law that was legislated in 1911. Therefore, it is clear that there was great difficulty resolving disputes that emerged in the areas of intellectual property and copyright law nearly a century after the enactment of the law. Justice Cheshin addressed this matter in his picturesque language during a case that came before the Supreme Court in 2004, in which a question arose relating to copyright in satellite broadcasts. Justice Cheshin said about this matter in a tone of annoyance: A difficult task was placed before us: We have to use the English copyrights law – a law that was enacted in 1911, nearly a century ago – and dig out a solution to the issue that arises in these days, days of television and cable television, the days of satellite, the computers and the Internet. We are given tools of craftsmen that were used (and were helpful) a long time ago, about a century ago – tools-of-law that were created many years before the advent of television and many more years before the advent of the satellite and the computer – and they ask us to use these tools to solve problems that the inventers of the tools never even dreamed of… We still have the same Copyright Act that when it was enacted, televisions and satellites and computers were found only in Jules Verne books. And with this law they are asking us to find a solution to the problem that arises nowadays.3 As was already mentioned, we as judges are obliged to give a solution to the parties in a given conflict brought to us even when the relevant law is archaic and does not reference the state of affairs of that conflict. The court therefore found the way, despite the 1911 Copyright Law, and reached a verdict in 2004 in a dispute concerning copyrights of satellite broadcasts.

2 Jean Gakir, Literary-Legal Remedies – Law and Literature Theory and Practice, 18 Legal Research 31, 36–37 (2002) (Hebrew). 3 6407/01 Arutzei Zahav v. Tele Event Ltd, 58(6) pd 6, 22–23 (2004) (Isr.).

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Another example of a situation in which the law and its rules are falling behind innovations in science and technology concerns the sensitive and delicate issues of organ donation. These days medicine can solve ailments by way of organ transplant, but the Legislative Branch in Israel regulated this sensitive issue by law only at 2008. Until then, the authorities acted on determining what is forbidden and what is permitted in this area just according to a circular of the Director General of the Health Ministry and by using specific recommendations by a professional committee. This is not desirable given the fact that we are dealing with issues relating to fundamental rights of the highest order – the right to life on one hand, and the right to physical integrity on the other – which require regulation by law. Another sensitive issue which has not yet been addressed by law, despite technological and scientific progress, is the issue of aid (Artificial Insemination Donor). For many years now modern medicine has been giving women who seek sperm donations the possibility to have children, but still the law has not yet addressed this subject. Although the legislature avoided regulating this issue until now, the reality of life as usual does not wait for the legislature and it produces situations and crises that come before the courts and require a solution. This occurred in the Plonit case4 which came before the Supreme Court in 2012.5 This case raised, among others, the question whether a sperm donor may, in certain circumstances, withdraw his consent to allow the use of his contribution. The Public Health Regulations (Sperm Bank) of 1979, does not provide an answer to this question and in the absence of legislation the court ruled on the issue by inferring and examining legal norms from other fields such as Contract Law and the Egg Donation Law of 2010. In addition, the Court distinguished between the situation that was discussed in this case and the situation which was discussed by the Court in an expanded panel of eleven judges sixteen years earlier in the affair called the Nachmani affair. In this case, as well, the Court was required to rule on the moral dilemmas and complex issues that the existing legislation did not deliver an appropriate solution to, including the right to use a fertilized egg and a person’s right not to be a parent.6 Another area in which the court finds it difficult to adjust to today’s change in reality is global terrorism. Various international treaties deal mainly with the Laws of War using the old, familiar model of a war that was held between armies, including declarations of war, armistices, and other matters that are also derived from the same known model. The problem is that in the m ­ eantime, 4 hcj 4077/12 Plonit v. Department of Health, (2013) (Isr.). 5 Id. 6 cfh 2401/95 Nachmani v. Nachmani, 50(4) IsrSC 661 (1996) (Isr.).

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the world’s terrorist organizations have emerged and created a new and unfortunate reality in this area. This new model is a violent model of war, which in most cases does not at all take into consideration territorial border; does not make the distinction between a time of war and a time of peace; every hour is an opportunity to plant destruction and violence without distinction between civilians and soldiers. Global terrorism does not accept any of the rules concerning times of war set by the International Court in the past. This situation requires legal experts, in addition to the security forces, to rethink and redesign the laws of war and to adapt to the characteristics of the war waged by terrorist organizations around the world. Up until this point we discussed issues of the reality of life with which the law finds it difficult to keep up and to stay up to date.

Other Limitations for Judicial Intervention in Certain Areas

There are issues that the law chooses not to deal with. For example, there are moral rules that have found their place in various religious sectors to which perhaps also secular people are committed on a moral level, but the law chooses not to impose such commands as part of the rules of conduct that it commands. Indeed, there is closeness between morality and law, but the two are not identical or overlapping. The closeness between morality and law is mostly assessed by them being applicable in determining the life patterns of individuals. They are meant for enabling people to live a good, fair and honest life together, and we referred to this above. The main difference between them is that the law makes the rules that are essential for this purpose, and therefore usually also accompanies the rules with criminal penal sanctions or with civil remedies against the infringer, which the state enforces via the police, the Courts and so on. Morality also provides a set of rules of conduct and laws of life, but it covers areas that are wider than those that the law covers and it often requires a higher ethical level, but it lacks, at the state level, real and immediate sanctions to enforce its command. It is important to emphasize that the extent of overlap between the laws of morality and the legal rules in a given society is largely a result of the concepts and values that the specific society sees as being essential for life in a common framework. Therefore, there are countries in which there is a strong correlation between legal values and moral values. This is the case, for example, in countries where the moral values mainly rely on religious values and where the government is also ruled by religious leaders. Israel is undoubtedly affected, particularly in the areas of personal status, by religious law, and the criminal law that was enacted by the Knesset includes

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a long list of offenses against morality. Still, it cannot be said that there is a full or even a major overlap between ethical values or religious rules and the law of the State of Israel. Think for example of the moral and religious commandment “Do not commit adultery,” which is one of the most important commandments of the Jewish religion. It is included in the Ten Commandments and it seems that every person who considers himself ethical tries to observe this commandment even if he is not a believer. But Israeli law did not adopt a criminal offense for committing adultery, nor did it adopt a standard of behavior that whoever violates it will be subjected to civil damages. The Supreme Court recently gave a ruling rejecting a lawsuit brought by a man who sued his friend, or perhaps it should be said his former friend, claiming that he should pay him compensation for mental disability at the rate of forty percent that was permanently brought upon him because his friend had intimate relations with his wife.7 The District Court dismissed the claim right away, stating that the circumstances described by the plaintiff have no cause of action in the law. The Supreme Court confirmed this result and determined that although the Israeli law recognizes the value of the family unit and the importance of protecting it, still the law does not recognize the tort of adultery performed against a spouse, and as the Court said, citing the words of Justice E. Rivlin in another matter: The deceptive partner, the adulterer, that splits a connection without any justification, should probably be condemned, ethically, religiously or socially, but the victim of the adultery will find it difficult to find a remedy in law.8 With that the Supreme Court marked that when it came to adultery, there is a clear distinction between moral and legal rules, and it added there the following: The litigants in our country, which are increasing with time, should realize that the legal process is not a cure for all pain. It is difficult to accept that in the name of protecting privacy and maintaining the family fabric, the law will crudely enter the private-intimate space of the parties, as part of a legal process in which the invasion of privacy may be even more significant than the invasion of privacy that the lawsuit is the reason for… along with the important value of maintaining the family unit, we must 7 ca 8489/12 Ploni v. Ploni, (2013) (Isr.). 8 Id. at 7.

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remember that we are dealing with an issue that is related to the emotional aspect of life. Betrayal is one thing, economical results is another.9 Another example to the lack of complete correlation between moral and legal rules is connected to the command of respect for parents. This command is also one of the Ten Commandments of Judaism, and I think that we can determine that it is also a moral imperative of the first order. However, we do not find an imperative like this in the Israeli law and probably not even in the United States law. That is what we can gather according to the Davis affair which was discussed in the Supreme Court of Virginia in the United States in 1985.10 In that case Mrs. Carter, who was old and ill, was found dead on November 1983 in an apartment where she lived with her daughter, Mrs. Davis. Postmortem examination showed that the mother was freezing and did not eat anything at least thirty days prior to her death. During this time, her daughter, Mrs. Davis, lived with the mother under the same roof. The daughter was charged with the criminal offense of causing death by negligence and the question that arose was whether the law obliged the daughter to take care of the needs of her mother. The daughter claimed that this is a moral obligation but not a legal one, and therefore one cannot prosecute her criminally for neglecting her mother and causing her death. In this case, the us Court did not rule that there is a legal obligation imposed on the daughter by virtue of family connection to provide for her mother. However, the court convicted the daughter based on the fact that she lived with her mother, received her food stamps and stated on several occasions that she was responsible for taking care of her mother. Under these circumstances, the Court believed that there was a binding contract between the mother and her daughter which required the daughter to take care of her mother in exchange for being able to live in the mother’s apartment and for the benefits the daughter received from it. The Court also stated that the daughter infringed these contractual obligations, and with her negligence she caused the mother’s death. This reasoning of the Supreme Court in Virginia raises some discomfort but it illustrates the gap between the basic rules of morality and the law, which sometimes chooses not to set binding legal norms relating to the delicate fabric of relations within the family. The Davis affair further demonstrates that when sometimes our feelings as humans are outraged by the possible outcome of acquitting the daughter in the circumstances described above, the law can

9 10

Id. at 8. Davis v. Commonwealth, 335 S.E.2d 375 (Va. 1985).

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still find a way, even if it involves legal ‘acrobatics’, to reach a just result that is necessary under the circumstances. While children are not obligated by law to take care of their parents in Israel, there is a clause in the Penal Code – Section 322 – that imposes criminal liability for neglecting a person by whom, according to a contract or by law, has the responsibility to ensure that person’s safety. We must mention here that recently, according to newspaper reports, China enacted a law ordering children to take care of their elderly parents. The law also allows parents to take legal action if they are being neglected and it prohibits “discrimination, insult, abuse and abandonment” of parents by their children.11 This law was passed in light of a serious problem that exists in China due to the aging population and because of deterioration that occurred in the relationship between children and their parents following the “one-child” policy of the Chinese government, which increased the burden on the individual child, who sometimes, in search of work, even moved to cities far from those in which their parents lived. This new Chinese legislation regarding the requirement of children to take care of their parents shows that the need to enact legal rules that match moral ones, although they were not part of the law earlier, is often the result of pressing social need which can no longer rely on the moral rules that will give it an answer. On the other hand, one can think of an example in which the law seeks to shape binding behavioral norms even for actions not necessarily perceived by the public as immoral. For example, the Israeli Supreme Court ruled in 2000 that corporal punishment of children, humiliation or degradation of their dignity as a method of education by their parents or by others, are entirely prohibited and that they are a remnant of a social-educational perception that has lost its validity.12 The two moral issues I mentioned, the issue of adultery and the issue of respect for parents, are examples of areas that the Israeli law chose not to set a positive legal norm to be applied on them. Another type of case I would like to mention in this context relates to situations in which a general legal norm exists and even a norm that belongs to the fundamental values of the legal system as the values of equality or dignity, but still the law refrains from applying it. This is the case for example in legal proceedings that raise dilemmas ­regarding practices of communities or cultural and religious groups.

11 12

See A new law in China: Visit your parents, or – they could sue you, Globes (Mar. 19, 2013), http://www.globes.co.il/news/article.aspx?did=1000831246. ca 4596/98 Plonit v. The State of Israel, (1) pd 145 (2000) (Isr.).

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In recent years, the Supreme Court had to deal with two cases of this kind. In general it can be said that both cases were connected to separation practices within the ultra-Orthodox society – the first concerned separation between men and women in what is called “Mehadrin Lines” on buses, and the other was about ethnic segregation for girls in an educational institution in the city of Emanuel. In these cases the Court was required to answer the question of how and to what extent should the value of equality, which is a fundamental value in any democratic country, be applied and enforced to the lifestyle and practices of the ultra-Orthodox community. The dilemma that the Court faced in this context was how, on the one hand, to allow cultural groups, and in these cases the ultra-Orthodox community, to hold and shape their own way of life and practices, and how on the other hand, to protect whoever is damaged by those practices. A petition was filed against the gender segregation on the “Mehadrin Lines” practices on buses in Jerusalem and in Bnei Brak.13 Those lines required women to get on the bus from the back door, sit in the rear and wear modest clothing. The Court ruled that the separation imposed on women in the public sphere constitutes illegal discrimination. However, the judgment expresses caution with regard to the intervention of the law with the lifestyle and practices in the ultra-Orthodox community relating to gender segregation. This caution was reflected in the decision of the “Mehadrin Lines” both in rhetoric and in the outcome of the judgment which allowed the opening of the back doors of the bus to let passengers on (factually woman passengers), and thus to allow flexibility for the travelers who want gender segregation. Analyzing the rhetoric of the ruling, the Court emphasized that the judgment does not compel anyone, man or woman, ultra-Orthodox or one who is not ultra-Orthodox, to act contrary to his beliefs. In addition, the Court made it clear that this decision does not affect the question of state interference in the internal relations within the cultural group, but rather the question of state interference in an “external” issue that examines the coercion of a cultural practice in the public sphere. Unlike the case of “Mehadrin Lines,” in the Emmanuel affair the Court was required to engage in the internal separation practices between subgroups that belong to the ultra-Orthodox sector. In this case, the organization “Noar Kahalacha” appealed against the segregation in the all-girls school “Beit Yaakov” in the city of Emmanuel, under which the majority of the students who were of Sepharadi origin were separated from the students of Ashkenazi origin. The Sepharadi students were assigned to the “general” group and the Ashkenazi students were assigned to the “Hasidic” group. Also in this case the 13

hcj 746/07 Regan v. The Ministry of Transp., (2011) (Isr.) Nevo.

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Court acknowledged that it was “the right of various sectors in the society to maintain their uniqueness and their own religious and cultural ways as a part of a multi-cultural society that respects the different groups and their uniqueness and gives it a place in the lives of the ethnic groups and communities.”14 But unlike the “Mehadrin Lines” case, here the Court held that a community’s right to separate education facilities does not release it from the obligation of equality, and therefore the Court ordered the school to remove any sign of discrimination. Despite the unequivocal determination the affair did not end with that since the parents of students of the Hasidic group prevented the implementation of the ruling until finally the Court imposed imprisonment on the objecting parents through contempt of court proceedings commenced by the petitioners. After ten days in prison, the parties reached a compromise whereby the Ministry of Education granted the request of the parents of the Hasidic group to establish an educational institution that at least in its first year will not be funded at all by the Ministry of Education. The Court upheld the compromise and added in its decision that it could only hope that the reasoning that underlies the compromise decision of the Ministry of Education will not in fact permit the segregation that was rejected in the verdict. Both cases that were mentioned, the “Mehadrin Lines” affair and the Emmanuel affair, illustrate the dilemmas faced by the court with regard to the extent and the manner that it should intervene with practices and customs of different cultural groups within society. The difficult question arises when there is an infringement of a fundamental value such as discrimination based on gender or sector, but it is done, for example, within the framework of an educational institution that is not funded by the state, or on bus lines that are not subsidized by the state. Is it then still appropriate to favor the “multicultural” interest over the fundamental values or does it depend on the severity of the infringed protected value? For example, I want to believe that if we find out that an educational institution that is completely private practices a method of corporal punishment of children, for instance, hitting children’s hands with a ruler, the law will not stand by but rather will intervene and apply its general principles against such conduct, even if it is a private institution that does not enjoy public funding or governmental budgeting, and even if the conducts is consistent with the customs of the particular cultural community that ­established the institution and operates it.

14

Regan v. The Ministry of Transp., (2010) (Isr.).

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Procedural Limits to Judicial Intervention

The third and final type of situations that demonstrate the boundaries of the law and its limitations are situations in which we are limited in using the law because of rules the law itself set. These rules at times make us judges feel very frustrated because of the deep contrast that is created between the result that we think will do justice under the circumstances, and the inadequacy of the Court to reach it. One case in which I felt intense frustration was the case concerning the child Shachar Greenspan. Shachar was about twelve years old when she was critically injured in a car accident while standing with her friend on a traffic island separating the lanes, waiting for a green light at the traffic light to cross the street. The minibus driver that drove onto the traffic island and hit Shachar and her friend lost control of his vehicle because he was drunk. As a result of this accident Shachar and her family’s world was destroyed. Shachar suffered very severe head trauma and today, after a long series of treatments, she is in a state of minimal consciousness, quadriplegic, and is completely dependent on the help of others. The driver was subjected to criminal prosecution in the Traffic Court in Petah Tikva and reached a plea bargain in which he admitted to the offenses of driving while under the influence of alcohol, driving recklessly, and causing an accident in which the a person was severely injured. He was sentenced with the following penalties: disqualification of a driver’s license for six years and another disqualification on probation for three years, six months probation for three years, a fine of nis 1,000 and 600 hours of community service at Lowenstein Rehabilitation Hospital.15 The plea agreement was approved by the Traffic Court in Petah Tikva and since the conviction of the driver and the verdict determining his sentence was the result of a plea bargain between the prosecution and the defendant it was naturally not appealed by either of the sides to a higher court and the driver served the agreed upon penalty to which he was sentenced. When the Greenspan family heard of the plea bargain and the mild punishments that were agreed upon, it complained to the State Attorney about it and the prosecution confirmed that the handling of the situation was incorrect. The prosecution agreed that the sentence imposed on the driver following the plea bargain was light and not appropriate considering the gravity of the act and the severe damages caused to Shachar. The prosecution also stated in its response that they learned a lesson from this case and that various control measures would be taken to ensure that such incidents will not recur in the future. 15

RA Magistrate’s Ct. (Petach Tikwa), The State of Israel v. Patrick 5247-02-10 (2011) (Isr.).

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But the Greenspan family was relentless and searched for a way that justice would be done and the driver would be appropriately punished. Therefore, about a year after the verdict was determined in the Traffic Court in Petah Tikva, the family filed a petition to the High Court of Justice in which it requested the cancelation of the criminal process that was held and that the prosecution shall file new charges against the driver and alternatively that the verdict would be annulled and that the sentencing phase be reopened.16 The hearing on the petition was in my opinion one of the most heartbreaking discussions held in our court, but ultimately we had no choice but to reject the petition. The President of the Supreme Court, Asher Grunis, who wrote the main opinion, emphasized in the judgment that regretfully, and although understanding the pain that Shachar and her family are feeling, the Court does not sit as an appellate court for the ruling of the Traffic Court in Petah Tikva and the call to reopen criminal proceedings after the verdict became final violates the principle of finality of judgment which is a fundamental principle of law, especially when regarding criminal law. The President mentioned in his judgment the famous statement “Hard cases make bad law” and noted that accepting the petition would be a clear example of that. I also sat on the bench in that case and joined the result reached by the President, but as I stated earlier it was one of the most difficult cases on which I had to decide, since my heart was clearly inclined toward the arguments of the Greenspan family, but the law was not able to give the family the remedies they sought, and as I pointed out there: Sadly, the law is powerless and we judges are helpless trying to correct now the mistake that was made by engaging in this plea bargain and by approving of this arrangement by the Court, which resulted in a verdict that became final and the sentence was served… The judge sitting in judgment can sometimes be filled with frustration when dealing with the inadequacy of the law that is revealed in cases like these. But we must remember that the inadequacy of the law is also the inadequacy of the judge and that there is a price for breaking the boundaries of the law and the legal rules which we are put in charge of.17 This frustration that a judge feels when he is bound by the general principles of the law, for example the principle of finality of judgment or rules of evidence law is a feeling that accompanies judges for ages. We can see it also in the story 16 17

hcj 681/12 Greenspan v. Attorney General(2012) (Isr.). Id. at 1, 3.

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of Rabbi Shimon Ben Shatach that is in tractate Sanhedrin. In the story, Rabbi Shimon Ben Shatach sees a man running after his neighbor into a ruin, runs after him, and finds him with a sword in his hand with the blood dripping, and the victim writhing in agony. Then Rabbi Ben Shatach said to him: “Wicked one! Who killed this man? I or you? But what can I do, since your blood is not given into my hand, for Torah (Deuteronomy) says: At the mouth of two witnesses, or three witnesses, shall he that is to die be put to death.”18 In other words, even when circumstances indicate almost certainly that the man holding the sword indeed killed the deceased, it is still not possible according to Torah law to convict him of murder and sentence him to death unless there are two witnesses to testify to it. This is a severe evidence law and Rabbi Shimon Ben Shatach was expressing his frustration of the law but he knows he must respect it. Although in that story God sent a snake to bite the killer which caused his death so he gets punished from above, still by the legal rules set forth in the Torah, it was impossible to convict him. Though we cannot avoid frustrating cases like that of Shachar Greenspan and the story told by Rabbi Shimon Ben Shatach, it is very important to adhere to the rules of the law that mark the limits of the law. The scholar Michael Freeman mentioned in this regard in his article that analyzes the play by Bertolt Brecht “The Caucasian Chalk Circle” and the insights that come from it concerning the concepts of law and justice; that we must always strive for justice, even if the law cannot achieve perfect justice and it always will be unjust to some extent. But the only tools that can be used to express the idea of justice are human laws and practices.19 18 19

Bavli, Shvu’ot, 34a. Michael Freeman, Truth and Justice in Bertolt Brecht, 11 Cardozo Stud. L. & Lit.197, 206 (1999).

chapter 8

The Presence of Religious Symbols in Public Schools: The Attitudes of Italian Courts Between Historical Legacy and Protection of Minority Beliefs Daniela Cavallini The topic of religious symbols in Italy can be very limited, considering only what happened with regard to the display of the crucifix (the Christ’s symbol) in public schools, or very broad, exploring – in a more general sense – the main challenges that the courts have to face in a multicultural society. The second perspective, of course, is very ambitious and challenging, and could better form the subject of a comparative research project rather than of a short article. So, I will basically devote my attention to the “story” of the crucifix. The case, promoted by an Italian citizen of Finnish origin, is significant because it shows how strong the historical and cultural legacy can be in judicial decisionmaking activity and how the judge can be “creative” in his/her role (in the interpretation of the law). In the second part, I will consider some concrete ideas concerning access to justice and the capacity of the courts to attract applicants from different cultures. The starting point is the rich debate that has developed in Italy as regards display of the crucifix, the religious symbol of Christianity, in public schools. The debate centers on conformity of the presence of Christ’s image in public school with the principles of secularism and neutrality of the State, of equality among the different faiths and of freedom of religion. The discussion became more vivid in 2009 when the case reached the European Court of Human Rights and in 2011, when the first decision of the Court was overruled by the Grand Chamber (Lautsi and others v. Italy1). It is worth mentioning, very briefly, the decisions of the European Court. The application to the Court was filed by a mother of Finnish origin, resident in Italy, in her own name and on behalf of the children. She argued that the crucifix affixed to the wall in the classroom infringed the right of the parents to ensure the children’s education and teaching in conformity with their own religious 1 echr 30814/06 (March 18, 2011).

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_009

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convictions (guaranteed by Protocol 1, art. 2), and the right to the freedom of thought, conscience and religion, guaranteed by art. 9 of the Convention. The Court first declared, in November 2009, that there had been a v­ iolation of Protocol n. 1, art. 2, together with art.9 of the Convention. The display of a symbol of a particular faith in classrooms, in fact, restricted the right of ­parents to educate their children in conformity with their own convictions and the right of children to believe or not believe. Such restrictions, concluded the Court, are incompatible with the State’s duty to respect neutrality in the e­ xercise of public authority, particularly in the sensitive area of education. The Court could not see how a symbol that is reasonably associated with the m ­ ajority religion in Italy could be compatible with the principle of secularism, as enshrined in Italian law, and could serve the educational pluralism which is essential for the preservation of a democratic society. In 2011, the Grand Chamber reversed the first judgment, saying that no violation had occurred. It reached this conclusion on the ground that “the decision whether crucifixes should be present in State-school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State.” The reference to “the margin of appreciation” was based on the lack of any ­European consensus on the matter, since only in a very limited number of States there is the express provision for the display of religious symbols in State schools. In most States, on the contrary, the question is not specifically regulated. It noted moreover that there was no evidence, before the Court, to indicate any influence that the presence of a religious symbol may have on pupils and the mere perception of the applicant was not sufficient to establish a breach of Protocol no. 1, art. 2. The presence of the religious symbol, in fact, basically a passive symbol not comparable with didactic speech or participation in religious activities, is not sufficient, in itself, to denote a process of indoctrination on the State’s part. Conversely, the evidence before the Court was that Italy opened up the school environment to a variety of religions and no intolerance was shown. For example, Islamic headscarves may be worn, the beginning and ending of Ramadan are often celebrated and also other minority faiths are taken into account. The purpose of the European Court, in its role of international court, is clear: the Court decided not to interfere in the national sphere. I would like rather to draw my attention to the national case-law. The issue of religious symbols in public schools and buildings in general gave rise to a conflict in the case-law of Italian courts and in public opinion as well, even before the rulings of the European Court. The public opinion is literally divided on the matter and the Church itself stepped in the debate saying, with a severe tone, that removing crucifixes from schools would be a big mistake.

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The administrative Courts (including the Supreme administrative Court), having jurisdiction on the matter, have generally proved to be in favor of the display of crucifixes in public schools and this happened also in the Lautsi case, prior to the application to the European Court. However, the arguments used by the Italian Courts in the Lautsi case are really weak from a legal point of view. The administrative Courts, in fact, emphasized that the symbol of Christ belongs to the historical and cultural heritage of Italian people and therefore it has an “identity-linked value.” It can be considered a passive symbol of the general values (tolerance, mutual respect, solidarity, refusal of discriminations) that characterize Italian civilization and its legal order. It basically fulfils, in a “secular” perspective, a highly educational symbolic function, regardless of the religion professed by the pupils. For all these reasons, according to the Courts, the crucifix in public classrooms does not infringe the principle of the secular nature of the State. Many people agreed with the decision: the secular nature of the State can have different meanings and it is compatible with our historical legacy. Other people, on the contrary, strongly criticized the Courts’ reasoning, which didn’t give adequate consideration to some important legal points. First of all, articles 8 and 19 of the Italian Constitution state that all religious creeds shall be equally free before the law . . . and that everyone is entitled to freely profess and celebrate his religious belief in any forms . . . , provided that they are not offensive to public morality. Second, the secular character of the State comes not only from the Constitution but also from the protocol to the new concordat of 1984, affirming that the principle laid down in the Lateran Pacts (the catholic religion is the only State religion) is no longer in force. Moreover, in 1989, the Constitutional Court itself held that the principle of secularism implies not that the State should be indifferent to religions but that it should guarantee the protection of the freedom of religion in a context of confessional and cultural pluralism. Third, the presence of crucifixes in Italian state schools has an extremely weak basis in law: some texts dating back to 1924 not having the status of law, but only that of regulations. It is evident that they cannot prevail over the Constitution. Last point. On a similar question (concerning crucifixes displayed in polling stations) the Court of Cassation had already taken a position, saying that the crucifix infringes the principle of secularism, the impartiality of the State and the principle of the freedom of conscience of people not accepting that symbol (1 March 2000, no. 439, Montagnana case). It also rejected the argument of the crucifix as “a symbol of an entire civilization and of the collective ethical conscience.” The administrative Courts basically disregarded the legal arguments and the position of the other Courts and decided, on the contrary, to emphasize

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the “secular nature” of the crucifix, something that sounds like a paradox (a religious symbol with secular nature). The crucifix certainly represents a set of important values but, first of all, in its main function, is a religious symbol. The decisions of the administrative judges are based on a very controversial interpretation of the law and of the principle of neutrality and in conclusion tend to protect the Italian majority religion. The Courts moreover made some confusion between the individual right to freedom of religion and what the State is allowed to do. Affirming the secular nature of the State does not mean that one wants to deny the important role of the Catholic religion for the society and the Italian cultural identity. On the contrary, being the society multicultural, the effective protection of religious freedom, of pluralism and of the right to education requires an effective neutrality of the State, not only as far as the school curriculum is concerned but also with regard to school environment. If this principle could be applied anywhere, in all the countries regardless of their traditions, it will benefit all the religions without distinction (including the Catholic one). Finally, at the end of the story, the outcome is that now any court, ordinary court or administrative court, at any level, can decide according to its discretionary power to apply or not to apply the regulations concerning the display of crucifixes in public buildings. Both the solutions are possible and in fact crucifixes can be displayed in schools, as declared by administrative courts, but not in polling stations, as declared by the Court of Cassation, nor in courts (please note that schools can be also polling stations). The European Court gave room to Italian courts but Italian courts have different positions on the neutrality of the State and this will result in a different and not homogeneous protection of minority beliefs, to the detriment of the certainty of law. This could reflect also on cases other than those about the crucifix. A new regulation by the legislator would be appropriate, but no actions are foreseen at the moment. The second aspect I want to consider is more concrete and it is about access to justice. I consider the court as an organization offering services to potential customers and my questions are: do the “services” provided for by the courts take into consideration people of different cultures? Are they responsive to people from diverse communities? Italian Courts are more and more operating in a multicultural context. People are multilingual, multicultural and religiously diverse. Such diversity will inevitably mirror in the litigants going to court. The debate is very poor in Italy and it generally refers to the problems connected with legal aid and the activity of courts interpreters. A part from that, Italian courts show a low commitment to develop services that are responsive to people from different cultures. For example, only a few courts have a clear and friendly website, and very few of

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them provide information in English or in other languages.2 Only a few courts have an information point which the citizens or the stakeholders can address and in rare occasions information is given in foreign languages. Some information about the judicial system is provided by international website, like the European e-justice portal, but only in general terms. So, little attention is devoted to the challenges faced by “customers” from culturally and linguistically diverse communities in accessing and navigating both the law system and the judicial system. Some actions to better deal with multicultural problems were undertaken by non-profit organizations supporting immigrant communities, by some courts, judges and lawyers. Some lawyers, for example, are now assisting in Lampedusa (an island in South Italy) the new immigrants and refugees coming from the Mediterranean area.3 They provide information about the law, the case-law of Italian and international courts, the bureaucratic obligations for immigrants, in collaboration with local authorities and ngos. Some Courts, moreover, are involved in specific projects to implement new practices in the field of courts’ organization, communication, and courts’ transparency. These actions, however, are basically isolated and fragmented; they usually deal with specific ­problems or a particular area of law. A general and structured view is lacking. Very interesting suggestions on how to improve the contact between courts and the multicultural society are offered by the Family court of Australia and the Federal circuit court of Australia. Australian courts, as we know, are operating in a strongly multicultural context, as Australia has one of the most ethnically diverse population, with approximately 27% of the people born overseas. The Courts’ commitment on the matter is shown in the multicultural Plan (2013–2015), a document available on the courts’ website, adopted by the multicultural Committee, a group with judicial and Courts’ staff representation.4 The Committee is also entrusted with the monitoring and the reporting of the Plan’s progress. The Plan is adopted following the Government’s multicultural Access and Equity policy, which sets out minimum obligations and requires that all Government departments and agencies prepare two-year multicultural Plans. 2 Velicogna, M., Legitimacy and Internet in the Judiciary: A Lesson from the Italian Courts’ Websites Experience, 14 Int’l J. of L.&Info Tech 370, 370–389 (2006). 3 See Foundation of the Bar Council, Project Lampedusa: Project Archive, High School Advocacy(Feb. 12, 2015), http://scuolasuperioreavvocatura.it/progetto-lampedusa/. 4 Multicultural Plan 2013–2015: Family Court of Australia and Federal Circuit Court of Australia, Family Court of Australia (Nov. 4, 2013), http://www.familycourt.gov.au/wps/wcm/connect/ fcoaweb/about/policies-and-procedures/multicultural-plan.

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Very interesting actions promoted by the Plan concern, for example, language, communication and cultural competence. The main objective is to develop strategies to better understand how culturally and linguistically diverse communities perceive and interact with the courts. To this end, the Plan suggests to provide court visits and presentations to community leaders to improve familiarity with court processes and to revise the courts’ websites to ensure they meet the need of the different communities (the website, first of all, must provide information about interpreting and translation services). The court staff, moreover, must be aware of the support services and be able to link the different clients to them. The courts are aware of the importance of working with organizations that support and represent the different communities and with other agencies, like the Legal aid commissions. These organizations should be given information for dissemination about the courts’ role, its services, how to access them and what the client should expect. The clients should be able to move between organizations without disadvantages. As far as cultural competence is concerned, the Plan requires implementing training and development of measures to equip staff not only with linguistic skills, but also with cultural competence skills. The staff must be aware of how different cultures and social norms of the communities may affect their understanding of the court’s resolution and decision making processes. Last, but not least, the Plan focuses on the feedback of the communities. A set of measurable targets is needed, providing evidence that the courts are offering services that are sensitive to cultural and linguistic barriers. To this end, current feedback mechanisms, including complaint processes, should be improved. The actions set out in the Plan show the Australian Courts’ commitment to meet the needs of the different client communities, to grant access to all the stakeholders and to deliver equitable outcomes, regardless of the cultural and linguistic backgrounds. Nothing comparable is happening in Italy, where the courts are facing completely different problems and risk to collapse because of backlog, delays, lack of resources and efficiency (actually, they have already collapsed). The Australian multicultural Plan actions are just a beautiful dream.

chapter 9

The Dark Side of Counter-Terrorism: The Argument for a More Enlightened Approach Based on a Constitutional Law Paradigm Arianna Vedaschi* i

Introduction

The wide effort in implementing effective counter-terrorism measures, made by the United States of America and its allies in the aftermath of 9/11, has raised a number of major critical issues, from a constitutional point of view, and with specific regard to human rights.1 Within the extensive set of policies and practices, adopted over more than a decade of struggle against militant Islamic extremism, so-called targeted killings (tks) and extraordinary renditions (ers) certainly represent the most controversial and criticised ones.2 This paper will propose a brief theoretical and historical reconstruction of these two practices, in order to analyse them under different legal paradigms: the criminal law model, which includes international terrorism in the wider category of organised crime and aims at preventing terrorist attacks and punishing the perpetrators of terrorist attacks by means of law enforcement operations, criminal investigations and trials, and the war model, which considers terrorist attacks as acts of war and terrorists as enemies to be defeated by means of lethal force. From the latter perspective, this paper aims at showing how even the war model, adopted by the United States since 9/11, does not seem broad enough to justify the current scenario of the fight against international terrorism, dangerously drifting towards a “global war,” whose l­imits – if they do exist – appear very hard to define. In spite of the recent, minor,

1 Arianna Vedaschi, À la Guerre Comme à la Guerre?: La Disciplina della Guerra nel Diritto Costituzionale Comparato 504 (2007). For an interesting overview of academic production in the aftermath of 9/11, see Joseph Margulies & Hope Metcalf, Terrorizing Academia, 60 J. Legal Educ. 433(2011). 2 Arianna Vedaschi, Osama bin Laden: l’ultimo targeted killing. Gli Stati Uniti hanno dunque la licenza di uccidere?, 3 Diritto Pubblico Comparato ed Europeo 1196 (2011) and Arianna Vedaschi, Extraordinary Renditions: esiste una giustizia transnazionale?, 4 Diritto Pubblico Comparato ed Europeo 1255 (2013).

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_010

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course corrections, us counter-terrorism policy still seems to be widely geared towards what some scholars have effectively termed “extra-legalism:”3 not only practices such as targeted killings and extraordinary renditions are carried out in overt violation of domestic legal systems and international principles, but they are also incompatible with international law and the laws of war. Crucial national security issues, and counter-terrorism in particular, seem dependent on the arbitrary choice of governments, far beyond the parameters of national and international legality, concealed beneath a cloak of State secrecy.4 In light of these considerations, this paper will finally endorse taking a step back towards the criminal law model in the fight against international terrorism, either through a reinforced judicial and police cooperation between States and regional organisations such as the European Union (eu), solidly founded on respect for constitutional and legal principles, and by promoting a stronger role of international fora to challenge those countries which are unable or unwilling to offer effective cooperation. Such a change of paradigm, in the end, seems the only feasible way to preserve the very same rule of law, to help mature democracies avoid finding themselves in a legal grey area. In Sections 2 and 3 of this paper, a brief historical background is developed, providing a definition of targeted killings and extraordinary renditions. Section 4 presents the so-called criminal law model, with its rules and safeguards, showing how targeted killings and extraordinary renditions are incompatible with this legal paradigm. Section 5 analyses the development of the war model from the classical approach, as codified by international law, to the new paradigm of the global war on terrorism. Section 6 is devoted to concluding remarks, proposing a new criminal law model, focused on a much stronger dialogue between domestic and international fora. ii

Historical Background and Definition: Targeted Killings

In analysing the historical evolution of targeted killings and extraordinary renditions in the fight against jihadist terrorism, it is essential to sketch their key

3 See Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism 161 (2011). An interesting stance on tacking a step back towards the rule of law can be found in Mary Ellen O’Connell, Adhering to Law and Values against Terrorism, 2 Notre Dame J. Int’l & Comp. L., 289 (2012). 4 Stephen Schulhofer, Oversight of National Security Secrecy in the United States, in Secrecy, National Security and the Vindication of Constitutional Law 22 (David Cole et al. eds., 2013).

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elements in order to be able to evaluate their compatibility with different legal frameworks. The first “declared” appearance of a targeted killing – i.e. the planned and authorised selective assassination of dangerous subjects5 – occurred at the dawn of the twenty-first century, in the fight against jihadism. The first country overtly resorting to targeted killing was not the United States: Israeli armed forces have publicly admitted the adoption of this practice, against Hamas militias in the Gaza Strip, since the second intifada in 2000.6 Among the numerous examples of targeting operations, “successfully” accomplished by the Israeli Defence Force (idf), we may remember the air raid that killed Salah Shehadeh, one of the most prominent personalities in Hamas, his wife and three children on the 22nd of July 2002, destroying his whole house in Gaza (one of the most densely populated areas in the world), killing ten other civilians and wounding more than 150. Less than two years before, on the 9th of November 2000, an Israeli missile blew up a car in a village near Bethlehem, killing Hussein Muhammed Salim Abayat, a member of the Tanzin militia, and two bystanders. Throughout the last decade, Israeli armed forces have carried out hundreds of operations in the Gaza Strip and the West Bank, targeting not only suspected terrorists but also unarmed civilians. The Israeli Government has publicly justified almost every targeted killing on the basis of self-defence: a principle of international law, enshrined in the Charter of the United Nations, whose broad interpretation Israel has used to allow its armed forces to target anyone who represents a threat, even if only a potential one, to national security. In fact, as we will see further on, the Israeli Supreme Court actively supported this position7 and refused to declare the unlawfulness of targeted killings by adopting an interesting “case by case” approach, along with an evolutionary view of international law and of the principle of proportionality in the light of the struggle against jihadist terrorism. According to this interpretation, t­ argeting 5 Steven R. David, Fatal Choices: Israel’s Policy of Targeted Killing, 51 Mideast Security & Pol’y Stud.1 (2002) and Maj. Matthew J. Machon, Targeted Killing as an Element of U.S. Foreign Policy in the War on Terror 2 (2006), http://www.fas.org/irp/eprint/machon.pdf. See also, Gabriella Blum & Philip Heymann, Law and Policy of Targeted Killings, 1 Harv. Nat’l Security J. 145 (2010). 6 For a complete overview, see Gabriella Blum & Phillip Heymann, Laws, Outlaws and Terrorists: Lessons from the War on Terrorism 68, 145 (2010), and Steven R. David, Israel’s Policy of Targeted Killing, 17 Ethics & Int’l Aff. 111, 111 (2003). 7 Eric Berlin, Note, The Israeli Supreme Court Targeted Killings Judgment: a Reaffirmation of the Rule of Law during War, 21 Mich. St. Int’l L. Rev. 517, (2013). See The Public Committee Against Torture in Israel v. The Government of Israel, hcj 769/02 [2006].

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operations (which may imply, prima facie, some sort of reprisal) are aimed at preventing future attacks against the people of Israel. The Israeli experience, while significant, is inextricably linked to the specific historical and geopolitical evolution of the Middle East area. Therefore, whilst offering a very good prototype of this practice from an operational (and quantitative) point of view, it does not seem to be the best example to determine some general trends in terms of legal policy due to the complex historical and territorial issues involved. In this latter regard, the United States of America post-9/11 represents an internationally-recognised paradigm.8 The idea of carrying out targeted operations, to “physically remove enemy leaders” beyond the borders of the us, dates back to the seventies. At that time the Church Committee Report9 brought to light several plans to kill Fidel Castro, the South Vietnamese President Ngo Dinh and the Chilean General René Schneider. Several years earlier, during the Vietnam War, a series of operations named the Phoenix Program involved the killing of many Viet Cong leaders and supporters. Likewise, in 1986, President Ronald Reagan authorised Operation El Dorado Canyon, aimed at killing Muammar Gaddafi with an air raid on his private residence. Such a controversial practice was, therefore, already established in us foreign and security policy but remained largely unknown despite its repeated use as part of covert intelligence operations overseas. To reverse this trend, President Ford was compelled to adopt Executive Order 11905, banning any kind of State assassination; a prohibition reinforced in Executive Order 12036 by President Carter and extended in the still effective Executive Order 12333, signed by President Reagan in 1981,10 several years before El Dorado Canyon. Targeted killings remained (at least formally) prohibited until the late 1990s: terrorist attacks on us embassies in Kenya and Tanzania led President Clinton to authorise the resort to “lethal force” as a form of self-defence against terrorist groups and Al-Qaeda in particular.11 Though not explicitly mentioning

8 9

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Nils Melzer, Targeted Killing in International Law 41 (2008). For information about the Church Committee and, in general, the us targeted killing practice, see William C. Banks & Peter Raven-Hansen, Targeted Killing and Assassination: The U.S. Legal Framework, 37 U. Rich. L. Rev. 667 (2003). Exec. Order 11,905, 41 Fed. Reg. 1041 (Jan. 6, 1976); Exec. Order 12,306, 43 Fed. Reg. 3674 (Jan. 24, 1978); Exec. Order 12,333, 46 Fed. Reg. (Dec. 4, 1981) (No person employed by or acting in behalf of the United States Government shall engage in, or conspire to engage in, assassinations). On targeted killings under President Clinton, see Jonathan Ulrich, The Gloves Were Never On: Defining the President’s Authority to Order Targeted Killing in the War Against Terrorism, 45 Va. J. Int’l L. 1029 (2005).

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targeted killings, President Clinton paved the way for further evolution of the policy and its public disclosure. After the 9/11 attacks, President George W. Bush declared to an American public, still in shock from the recent terrorist acts, his firm commitment to seek out and destroy the perpetrators and prevent further attacks. In November 2002―under the Authorisation for Use of Military Force Against Terrorists, approved by the Congress on 14 September 2001―us authorities publicly claimed a success as a result of a targeting operation, carried out on Yemeni soil, against Qaed Salim Sinan al-Harethi, suspected of being involved in the uss Cole bombing.12 This operation, which led to the death of four other suspected terrorists (including a us citizen), was the first example of targeted ­killing to be overtly carried out by the United States in the fight against international terrorism: targeting was no longer something to be concealed. While in this case, the Yemeni authorities were duly informed and authorised the target operation, thus avoiding any inconvenient diplomatic and political consequences, other attacks―as happened several times in P ­ akistan―were carried out by the United States without any prior consent by the sovereign State where they occurred and sometimes without any advance warning. This was the case of Ayman al-Zawahiri, whose failed targeting operation unintentionally killed 18 civilians, prompting a strong protest by then-President Pervez Musharraf.13 The us decision to resort to targeting significantly increased under P ­ resident Barack Obama, whose policy choices in this area were in line with those of his predecessor.14 President Obama not only confirmed the targeting program, 12

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Avery Plaw, The Legality of Targeted Killing as an Instrument of War: The Case of the us Targeting of Qaed Salim Sinan al-Harethi, in War Fronts: Interdisciplinary Perspectives on War, Virtual War and Human Security 67 (N. Gertz ed., 2009). Cf. Christine Gray, International Law and Use of Force 175 (2004); Helen Duffy, The War on Terror and the Framework of International Law 243–244 (2005); Chris Downes, “Targeted Killing” in an Age of Terror: The Legality of the Yemen Strike, 9 J. Conflict & Security L. 277, 279–280 (2004). Christina Lamb, Airstrike Misses al-Qaeda Chief, The Sunday Times (Jan. 1, 2006), http:// www.thesundaytimes.co.uk/sto/news/world_news/article211484.ece; Pamela Constable & Dafna Linzer, Confusion Shrouds Pakistan Attack, The Washington Post (Jan. 1, 2006), http://www.washingtonpost.com/wp-dyn/content/article/2006/01/17/AR2006011701539 .html. President Barack Obama, Speech at the Democratic National Conventionin Denver: The American Promise (Aug. 8, 2008); Barack Obama, Speech at the Ronald Reagan Building in Washington dc: A New Strategy for a New World(Jul. 28, 2008); Barack Obama, Speech at the Woodrow Wilson International Centre for Scholars in Washington dc: The War We

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but embraced the Bush doctrine in affirming the possibility to engage us citizens, suspected of involvement in terrorist activities overseas. Throughout the last few years, many targeting operations have been aimed at “removing” us citizens who represent a potential menace in Pakistan,15 Yemen, Somalia and other politically unstable areas, often without the us seeking any form of cooperation with national governments.16 With respect to the judiciary, several lawsuits have been filed by a number of ngos and civil rights organisations in us federal courts, to challenge the legitimacy of targeted killings on constitutional grounds; nevertheless, to date, us courts have repeatedly dismissed all these claims, without addressing the merits, on the basis of jurisdictional issues such as the “political question” doctrine.17 In spite of the concerns raised by prominent legal scholars and a significant part of public opinion demanding a thorough judicial review of such practice, the Supreme Court of the United States has remained silent, refusing to hear any claim related to targeted killings and refraining from interfering with national security policy.

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Need to Win (Aug. 1, 2007). See also Pam Benson, U.S. Airstrikes in Pakistan called “Very Effective,” cnn (May, 18, 2009), cnn.com/2009/POLITICS/05/18/cia.pakistan.airstrikes; Harold H. Koh, Keynote Address at the American Society International Law 104th Annual Mitting: International Law in a Time of Change: The Obama Administration and International Law (Mar. 25, 2010), www.state.gov/s/l/releases/remarks/139119.htm; Michael W. Lewis, Vincent J. Vitkowsky, The Use of Drones and Targeted Killings in Counterterrorism, The Federalist Society for Law and Public Studies (Dec. 13, 2010), www.fed-soc .org/aboutus/DownloadLibrary?id=3152; K. Anderson, Targeted Killing in U.S. Counter Terrorism Strategy and Law 1(Brookings Institution, Georgetown University Law Center and Hoover Institution Series on Counterterrorism and American Statutory Law, Working Paper No. xxx [needs working paper number], 2009), papers.ssrn.com/sol3/papers .cfm?abstract_id=1415070. Cf. Richard Murphy& Afsheen Radsan, Measure Twice, Shoot Once: Higher Care for cia Targeted Killing, 2011 U. Ill. L. Rev. 1201 (2010). Kenneth Anderson, Targeted Killing and Drone Warfare: How We Came to Debate Whether There Is a “Legal Geography of War” (Hoover Institute Task Force on Future Challenges in National Security and Law, Working Paper No. 2011–16, 2011). Mary Ellen O’Connell, Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004–2009 (Notre Dame Law School Legal Studies, Working Paper No. 09-43, 2012). Brian D. Shekell, The Legality of the United States’ Use of Targeted Killings in the War Against Terror, 57 Wayne L. Rev. 313, (2011). For a critical approach to the “political question” doctrine, see Benjamin McKelvey, Note, Due Process Rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of the Executive Killing Power, 44 Vand. J. Transnat’l L. 1353, 1363–66 (2011). See aclu v. Clapper, 727 F. Supp. 2d 1 (D.D.C. 2010).

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With regard to the “operational side” of targeted killings, several different models have emerged: the first model, widely adopted by Israel, relies on the Air Force launching missile attacks (either from helicopters or fighter jets) against designated targets. This model tends to include targeted killings within the wider scope of military operations, given the almost exclusive involvement of military personnel. The United States, which we will focus on, has adopted elements of different models, with respect both to the agencies and departments involved and to operational procedures. In particular, us targeting operations can be characterised by the pre-eminent presence of the Central Intelligence Agency (cia) often assisted by the Department of Defense, providing logistical and operational support. Covert actions on the ground and “conventional” air strikes, typical of the pre-9/11 scenario described above, have gradually been replaced by drone attacks, allowing greater precision and with virtually no risk to us personnel.18 With the relevant exception of operation Geronimo, that led to the killing of Osama bin Laden, unmanned aerial vehicles operated by the Department of Defence and lent to the cia have been the main protagonists of counterterrorism targeting operations in the last decade. Following concerns expressed by scholars, critics of us policy on the unwarranted leeway given to the cia in carrying out targeting operations, President Obama has – in the last few months – signalled his intention to assign full responsibility for targeted killings to the military,19 thus excluding the direct involvement of the Agency, and his intention to implement a form of quasijudicial review20 designed to make targeted killings more consistent with due process requirements.21 However, Congress has not particularly welcomed this idea and has effectively blocked it by means of funding cuts within the federal budget. 18 19

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In support of drone strikes, see D.L. Byman, Essay for Brookings Institution (Jul.-Aug. 2013). John T. Bennet, White House Quietly Shifts Armed Drone Program from cia to DoD, Defense News (May 24, 2013), http://content-static.defensenews.com/article/20130524/DEFREG02/305240010/White-House-Quietly-Shifts-Armed-Drone-Program-from-CIA-DoD. On judicial review for targeted killings, see Jameel Jaffer, Reaction – Judicial Review of Targeted Killings, 126 Harv. L. Rev. F. 185 (2013), http://www.harvardlawreview.org/media/pdf/ forvol126jaffer.pdf. For an earlier evaluation of targeted killings’ due process implications, see Richard Murphy & Afsheen John Radsan, Due Process and Targeted Killing of Terrorists, 31 Cardozo L. Rev. 405, 410–11 (2009); Afsheen John Radsan & Richard Murphy, Measure Twice, Shoot Once: Higher Care for cia Targeted Killing, 2011 U. Ill. L. Rev. 1201 (2011).

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Historical Background and Definition: Extraordinary Renditions

Having analysed some major features of targeting operations, we can now address the second controversial practice under discussion, namely, extraordinary renditions.22 As we did with the issue of targeted killings, we will offer a brief overview of this subject in order to provide the basis for the analysis that follows. In the United States, the expression “rendition to justice” has been used since the 1980s, with specific reference to the fight against terrorism. The phrase refers, in particular, to covert operations carried out by the cia and aimed at capturing people suspected of committing terrorist offences overseas in order to bring them to trial in us Federal Courts. What is immediately clear is the extraterritorial dimension of such operations: in order to “render them to justice,” suspected terrorists have been placed “under arrest” by Government officials acting outside us jurisdiction, on foreign soil, and transferred to the United States to face criminal charges. Over recent years, renditions have generally been used as a last resort, with the sole purpose to avoid problems, delays and the sort of resistance often encountered within ordinary extradition procedures. Many States, either due to their long-standing non-extradition policies or to their ideological sympathy with extremist organizations, have been unwilling to cooperate with us law enforcement agencies; others, as in the case of so-called “failed States” and those affected by ongoing political conflicts, are simply unable to provide effective support. Considering the apprehending of a suspected terrorist as an overriding goal, National Security Directive 207, issued by President Reagan, included renditions in the wider set of counter-terrorism measures. To support this type of operation, us Administrations have repeatedly asserted their jurisdiction over

22

Margaret L. Satterthwaite, The Legal Regime Governing Transfer of Persons in the Fight Against Terrorism, in Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges 589 (Larissa Van der Herik and Nico Schrijver, Eds., 2013); Suzanne Egan, Extraordinary Rendition and the Quest for Accountability in Europe, https:// www.researchgate.net/publication/256028632_Extraordinary_Rendition_and_the _Quest_for_Accountability_in_Europe; Louis Fisher, Extraordinary Rendition: The Price of Secrecy, 57 Am. U. L. Rev. 1405, 1416 (2008); Margaret L. Satterthwaite, Rendered Meaningless: Extraordinary Rendition and the Rule of Law, 75 Geo. Wash. L. Rev. 1333 (2007); David Weissbrodt & Amy Bergquist, Extraordinary Rendition and the Torture Convention, 46 Va. J. Int’l L. 585 (2006); David Weissbrodt & Amy Bergquist, Extraordinary Rendition: A Human Rights Analysis, 19 Harv. Hum. Rts. J. 123 (2006).

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those criminal offences committed overseas against us citizens or affecting American interests, claiming their right to arrest suspected criminals (virtually) anywhere in the world and to bring them to justice at home on American soil. After their first appearance under the Reagan Administration in 1986,23 renditions continued throughout the 1990s under Presidents George H.W. Bush24 and Bill Clinton.25 According to then-cia Director George Tenet, from 1986 to 2001, the United States successfully accomplished more than 70 rendition operations, of which two dozen have taken place during the last four years.26 Furthermore, under President Clinton, renditions to justice started to gradually transform into something different: a significant change in procedures and aims marked the transition from renditions to justice to what we are now used to calling extraordinary renditions. To understand the scope of this change we can refer to two relevant examples: the Tal’at Fu’ad Qassim and Tirana Cell renditions, ordered by President Clinton. In the first case, which happened in Bosnia, the cia captured suspected terrorist Tal’at Fu’ad Qassim, an Egyptian citizen who was granted asylum in Denmark, and rendered him to Egyptian authorities; in the second case, us officials captured a group of suspected terrorists (the Tirana Cell) in Albania and also transferred them to Egypt. In both cases the operations did not aim to bring suspected terrorists to justice in the United States but rather to hand them over to a third country, where it was assumed they would be tried, with nothing but vague and bland assurances on the respect of their fundamental rights (e.g. the ban on mistreatment, violence and torture) from the us and on the part of the Egyptian government. This new operational mode consisted in apprehending suspected terrorists within the territory of a foreign State, regardless of its consent or cooperation, 23

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Executive Office of the President, National Security Decision Directives, Federation of American Scientists (1981–1989), www.fas.org/irp/offdocs/nsdd/index.html. J. Brent Wilson, The United States’ Response to International Terrorism, in The Deadly Sin of Terrorism 173, 184 (D. Charters ed., 1994). Executive Office of the President, National Security Directives, Federation of American Scientists (1989–1993), www.fas.org/irp/offdocs/nsd/index.html. Executive Office of the President, Presidential Decision Directives (1993–2000), www.fas .org/irp/offdocs/pdd/index.html. See Jane Mayer, The Dark Side 112 (2008); Benjamin Wittes, Law and the Long War 26 (2008). See also Human Rights Watch, Black Hole: The Fate of Islamists Rendered to Egypt, Hum. Rts. Watch Rep., May 2005, at 1, http://www.hrw .org/reports/2005/egypt0505/egypt0505.pdf. See Written Statement for the Record of the Dir. of Cent. Intelligence, before the National Commission on Terrorist Attacks Upon the United States, (Mar. 24, 2004), available at http://govinfo.library.unt.edu/911/archive/hearing8/9-11Commission_Hearing_200403-24.pdf; G. Tenent, Statement to the Intelligence Joint Comm.: Inquiry into Terrorist ­Attacks Against the United States, (Oct. 17, 2002), available at http://www.fas.org/irp/­ congress/2002_hr/101702tenet.html.

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and transferring them to a third State (other than the us) where they would be detained and possibly put on trial, with no credible guarantee for their psychological and physical safety. Established as an exception under the Clinton Administration, this modus operandi has become a standardized operating procedure since September 2001: the momentous events of 9/11 caused a sudden change in the political and social climate. The clamour for greater security increased the pressure on the Executive Branch and drastically inhibited checks and balances aimed at preventing abuses. Both the Judiciary and the Legislative have proved reluctant to interfere with pro-active Executive power in this sense and, indeed, the latter have facilitated the process by passing legislation, which has granted the President ever greater powers within the arena of national security. Within this altered context, renditions to justice became “extraordinary,” abandoning their original purpose (bringing terrorist suspects to justice) and have served to facilitate the requirements of intelligence agencies: gathering as much information as possible, without the strict constraints of us constitutional guarantees, and preventing future terrorist attacks. The prospect of prosecution in a court of law, either by the United States or by a third country, has taken second place to the main purpose of these operations, i.e. detaining suspected terrorists outside us boundaries, regardless of whether or not they will face trial.27 Such a major deviation from the stated purpose of rendition activities offers an explanation for the development and operation of secret cia detention facilities, or “black sites,” located far away from the United States itself and which are ideally suited to the secret imprisonment and interrogation of captured subjects.28

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Open Society Justice Initiative, Globalizing Torture: cia Secret Detention and Extraordinary Rendition (2013), www.opensocietyfoundations.org. See also Amnesty International, Open Secret: Mounting Evidence of Europe’s Complicity in Rendition and Secret Detention (2010). See President George W. Bush, Speech on Terrorism from the White House (Sept. 6, 2006), http://www.nytimes.com/2006/09/06/washington/06bush_transcript.html?page wanted=all&_r=0; Dana Priest, cia’s Assurances on Transferred Suspects Doubted, Wash. Post, Mar. 17, 2005, at A01; R. Jeffrey Smith, Gonzales Defends Transfer of Detainees, Wash. Post, Mar. 8, 2005, at A03; Dana Priest, Ex-cia Official Defends Detention Policies, Wash. Post, Oct. 27, 2004, at A21; Exec. Order No. 13,491 (2009), https://www.whitehouse .gov/the-press-office/ensuring-lawful-interrogations; Press Release, U.S. Dep’t of Justice, Attorney Gen.’s Office, Special Task Force on Interrogations and Transfer Policies Issues its Recommendations to the President (Aug. 24, 2009), http://www.justice.gov/opa/ pr/2009/August/09-ag-835.html.

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Unlike the policy of targeted killings, us Administrations did not publicly acknowledge the use of extraordinary renditions as an integral part an effective counter-terrorism strategy. While renditions to justice involved some kind of criminal charge and should (at least in theory) lead to a public trial, extraordinary renditions occur outside of the judicial system. People who have not been charged with an offence, either in the United States, or in any other legal system, but who are still suspected of either membership of a terrorist group or active involvement in terrorism according to intelligence sources can be targets for what is, in effect, abduction by the United States. These subjects could (and, in fact, have been) apprehended on the initiative of intelligence agencies, without recourse to the normal legal requirements (being charged with an offence, etc.) and transferred to any one of a number of secret prisons throughout the world without rights or guarantees and for an indefinite period of time. An aggravating effect of the procedure is that extraordinary renditions often interfere with (and frustrate) complex criminal investigations, aimed at prosecuting suspected terrorists (e.g. the Abu Omar case),29 or can result in mistaken identity cases (e.g. the El-Masri case30 and the Arar case31) which serve only to embarrass the authorities involved, in particular the United States itself. .

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Michele Nino, The Abu Omar Case in Italy and the Effects of cia Extraordinary Renditions in Europe on Law Enforcement and Intelligence Activity, 78 Rev. Int’l de Droit Pénal 113 (2007); Frederico Fabbrini, Extraordinary Renditions and the State Secret Privilege: Italy and the United States Compared, 2011 Italian J. of Pub. L. 315 (2011). Khaled el-Masri, I am not a State Secret, l.a. Times (Mar. 3, 2007), www.latimes.com/ news/la-oe-elmasri3mar05,0,5731364. story (“I don’t understand why the strongest nation on Earth believes that acknowledging a mistake will threaten its security.”). Scott Horton, The el-Masri Cable, Harper’s (Nov. 29, 2010), http://harpers.org/archive/2010/11/ hbc-90007831. The Story of Maher Arar: Rendition Torture Report, Ctr. for Const. Rts. (Dec. 2, 2008), http:// ccrjustice.org/files/rendition%20to%20torture%20report.pdf; Arar Maher’s Statement to the Media, No One is Illegal, Vancouver (Nov. 4, 2003), http://users.resist.ca/noii-van. resist.ca/maher_arar.html; Arar Maher: Cronology of Events (Sept. 26, 2002 – Oct. 5, 2003), www.globalresearch.ca. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations (2006), http://www.sirc-csars.gc.ca/pdfs/cm_arar_rec-eng.pdf. Prime Minister releases letter of apology to Maher Arar and his family and announces completion of mediation process, Off. of the Prime Minister (Jan. 26, 2007), http://pm.gc.ca/eng/media. asp?id=1509. I. Austen, Canada Reaches Settlement with Torture Victim, n.y. Times (Jan. 26, 2007), http://www.nytimes.com; D. Struck, Tortured Man Gets Apology from Canada, Wash. Post (Jan. 27, 2007), http://www.washingtonpost.com.

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Though being secret by their very nature, extraordinary renditions rapidly gained notoriety thanks to the detailed accounts of victims. As with targeted killings, however, a number of lawsuits brought against the United States (and its allies) in federal courts have failed to result in a final conviction; the Executive firmly asserted the State secrets privilege and claimed sovereign immunity for those involved, while the Judiciary (with a few exceptions, promptly appealed and overturned) did not take any steps to challenge the legal basis for such assertions. Rendition victims, as a consequence, were forced to seek redress outside of the United States and occasionally found it, as happened in Australia, Canada and the United Kingdom, by means of extrajudicial settlements where compensation was offered in exchange for waiving the right to further legal action.32 Official recognition and condemnation of this practice only came from the European Parliament,33 the Parliamentary Assembly of the European Council34 and – eventually – the European Court of Human Rights with the well-documented El Masri judgment in 2013.35 It is worth pointing out that, to date, the only criminal conviction related to extraordinary renditions was delivered in Italy in 2010 by the Milan Court of Appeals that found twenty-three cia operatives guilty of kidnapping the Muslim cleric Abu Omar in 2003.36 Within the same case, however, a “confrontation” took place between the Supreme Court of Cassation and the Constitutional Court on

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36

About substitute justice in non-American courts: Kent Roach, Substitute Justice? Challenges to American Counterterrorism Activities in Non-American Courts, 82 Miss. L. J. 907, 907, 913 (2013) (Substitute justice in non-American courts). See also Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism 163–69, 235–37, 436–38 (2011); Kent Roach, Uneasy Neighbors: Comparative American and Canadian Counter-Terrorism, 38 Wm. Mitchell L. Rev. 1701, 1724–1728 (2012). To better understand this practice and its implications, it is useful to read the Resolution adopted by the European Parliament in 2007. See Alleged use of European countries by the cia for the transportation and illegal detentions of prisoners of Feb. 14, 2007, 2007 o.j.(C 287) 309. Eur. Parl. Ass., Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states, Doc. No. 10,957 (2006); Eur. Parl. Ass., Secret detentions and illegal transfers of detainees involving Council of Europe member States, Doc. No. 11,302 (2007), http://assembly.coe.int. El-Masri v. The Former Yugoslav Republic of Macedonia, 66 Eur. Ct. H.R. at 87 (2012); A. Vedaschi, Globalization of Human Rights and Mutual Influence Between Courts: The Innovative Reverse Path of the Right to the Truth, in Culture of Judicial Independence: Rule of Law and World Peace 107 (Shimon Shetreet, cur., 2014). Corte d’Appello di Milano, sez. iv pen., sent. 3-4-2013, n. 985.

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the interpretation of the State secrets privilege.37 The Constitutional Court, upholding the position of the Italian Government in a much-debated judgment, adopted a strict and formalistic stance on the privilege, thus forcing the Supreme Court to acquit several officers of the Italian military intelligence (including the then-Director) who were accused of providing operational support to the cia.38 In spite of its unofficial nature, extraordinary rendition has represented – in terms of impact – one of the most significant counter-terrorism practices of the post-9/11 era. Together with targeted killings, they reflect the firm resolve of us Administrations against the jihadist threat and are commonly addressed, due to their controversial legal implications, as parts of the same strategy. While they raise many critical issues with regard to constitutional and international law (and, in this sense, are based on similar theoretical assumptions, emphasising the link and inviting the joint analysis here undertaken), they respond to, at least partially, very different needs: targeting operations are usually aimed at removing potential menaces, when apprehending the suspect seems unlikely based on evaluations of risk and feasibility. Targeted killings, therefore, have a substantially pre-emptive nature and focus on the most direct and safest way to eliminate a potential security threat. While an immediate pre-emptive goal can be achieved as well, the main purpose of extraordinary renditions is the (often forcible) collection of first-hand information on terrorist organisations and future attacks, in a long-term, intelligence and security-based perspective. As we mentioned above, targeted killings and extraordinary renditions have raised much concern, with regard to violations of fundamental rights – such as the right to life, the right to personal freedom and the due process of law – and 37

38

See Corte cost., sent. 11-3-2009, n. 106; Corte cost., 21-11-2011, n. 40; Corte cost., 19-2-2014, n. 24, in www.cortecostituzionale.it; see A. Anzon, La Corte abbandona definitivamente all’esclusivo dominio dell’autorità politica la gestione del segreto di stato nel processo penale, Giur. cost., 2012, 534; A. Pace, Sull’asserita applicabilità dell’imputato dell’obbligo di astenersi dal deporre sui fatti coperti dal segreto di Stato e sull’inesistenza dei fatti eversivi come autonoma fattispecie di reato, Giur. cost., 2012, 526. Cass. pen., sez. V, 19-9-2012, n. 46340; see A. Vedaschi, La Cassazione solleva il “sipario nero” calato dalla Consulta: il caso Abu Omar si riapre, Percorsi costituzionali, 2013, n. 1, 163. A. Anzon, La Corte abbandona definitivamente all’esclusivo dominio dell’autorità politica la gestione del segreto di stato nel processo penale, Giur. cost., 2012, 534; A. Pace, Sull’asserita applicabilità dell’imputato dell’obbligo di astenersi dal deporre sui fatti coperti dal segreto di Stato e sull’inesistenza dei fatti eversivi come autonoma fattispecie di reato, Giur. cost., 2012, 526. A. Vedaschi, Arcana Imperii & Salus Rei Publicae, State Secrets Privilege and the Italian Legal Framework, in Secrecy, National Security and the Vindication of Constitutional Law 95 (David Cole et al. eds., 2013); Id., Il segreto di Stato tra tradizione e innovazione: novità normative e recenti evoluzioni giurisprudenziali, Diritto Pubblico Comparato ed Europeo, 2012, n. 3, 978. See App. Pen. Mi, Sez. IV, Sent. 12–02–2013 n. 6709; App. Pen. Mi, Sez. III, Sent. 15–12–2010, n. 3688; Tr. Pen. Mi, Sez. IV, Sent. 4–11–2009, n. 12428 (Tribunale di Milano).

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international law, in relation to national sovereignty. In the paragraphs that follow we will address these issues, analysing the two practices in the light of differing legal paradigms, starting from the so-called “criminal law model,” which considers international terrorism as a form of organised crime, and then passing to the “war model,” that tends to see terrorists as enemy combatants, rather than criminals. iv

International Terrorism as Serious Crime: Targeted Killings and Extraordinary Renditions Within a Criminal Law Approach

According to many scholars,39 international terrorism should be considered as a form of serious organised crime and thus addressed through the usual criminal law practices, consisting in investigation, evidence collection, arrest, formal charge, trial and the possible conviction of the culprits. Within a criminal law model, resort to lethal force by public authorities should be limited to a small number of cases: law enforcement can legitimately “shoot to kill” when the suspect is acting in such a way that it is very likely he will endanger the safety of police officers or third parties, for instance by violently resisting arrest, taking hostages or trying to escape. Apart from these cases (if we exclude, in some legal systems, the lawful practice of imposing a death sentence) the use of lethal force by public authorities might therefore be considered as homicide and treated accordingly. This fundamental assumption derives from general protection duties, imposed on State authorities by well-established western constitutional traditions, that include those people suspected of having committed, being about to commit or having conspired to commit a crime. Since the presumption of innocence is universal, suspects enjoy the same rights as all other people, including the right to exert an effective defence in a court of law and any other right, granted by the Constitution and the laws, to those charged with a crime. That said, if we assume the rule of law as a fundamental prerequisite, we cannot rely on remedies other than those provided by national criminal laws, properly informed by constitutional principles, which precludes the 39

Kim Lane Scheppele, The International Standardization of National Security Law, 4 J. Nat’l Security L. & Pol’y 437, 437 (2010); Kim Lane Scheppele, Law in a Time of Emergency: States of Exception and the Temptations of 9/11, 6 U. Pa. J. Const. L. 1001 (2004). In favor of international criminalisation, see also Johan Van der Vyver, Prosecuting Terrorism in International Tribunals, 24 Emory Int’l L. Rev. 528, 531 (2010); Ben Saul, International Terrorism as a European Crime: The Policy Rationale for Criminalization, 11 Eur. J. of Crime Crim. L. and Crim. Just. 323 (2003).

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­illegitimate use of lethal force, regardless of the crime. Following this approach, any suspected terrorist within a State’s jurisdiction should be arrested, charged with any appropriate offence, and eventually tried in a way consistent with the Constitution and applicable laws. He may only be killed legitimately, before the imposition and execution of any death sentence, in those cases that we briefly enumerated above. In any other case a targeted killing should be considered and punished as an act of homicide. The conclusion of our legal analysis cannot be substantially different from that in respect of extraordinary renditions. This practice, as described above, consists in the abduction of suspected terrorists by Government officials, within the territory of a foreign State (with or without its consent), and their transfer to a detention facility, usually in a third State. Criminal law paradigms generally prescribe a number of procedural safeguards with regard to the arrest of suspects, which include the right to be informed of the reasons for such arrest, the right to be assisted by a lawyer and the right to appear in court within a reasonable lapse of time (habeas corpus); very significantly, law officers cannot arbitrarily exert their power of arrest: any arrest has to be ordered or, at least, confirmed by the Prosecutor’s office within a reasonable time. These guarantees are given to avoid deprivation of the fundamental right to personal freedom without grounds for doing so, allowing the suspect to exert his defence from the very beginning. Needless to say, none of these guarantees, which represent the essence of constitutional principles applied to criminal law, is respected within extraordinary renditions. Within such operations the suspect is the victim of a de facto kidnapping, without any notice or information, often by means of force and secretly held captive with no access to the outside world: no information is provided to the family or to consular authorities so that the detainee to all intents and purposes “disappears.” What is more, there is no certainty (and no remedy for possible violations) on detention conditions and interrogation techniques adopted by us and foreign Government officials, far beyond the jurisdiction of us courts, with the risk of mistreatment and torture, both of which are prohibited by national and international law. Certainly the scenario we describe above might seem simplistic if compared with the very real challenges of the fight against terrorism. Usually suspected terrorists hide far away from the States that have been attacked, beyond the boundaries of their jurisdiction, with little or no chance of being captured if national law enforcement operations only are relied on. One may reasonably object that forms of international cooperation between States in the field of law enforcement and criminal prosecutions actually exist, and they do, but they necessarily depend on the will to cooperate, which no one would take for granted. Some States, in effect, (more or less) overtly refuse to cooperate with

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western law enforcement agencies in pursuing suspected terrorists; others are simply unable to do so, due to the lack of resources or an incomplete control over their territory. A direct intervention on the territory of a third State, without its consent, either to kill or to abduct a suspected terrorist, clearly violates the principle of sovereignty upon which the international legal order is based, and can be considered an act of armed aggression against that third State, with potentially disastrous consequences in terms of international relations. Furthermore, even if we assume that a third State offered its full consent to targeting or rendition operations, the “cooperating” State could not grant the “intervening” State more powers than those provided by the former’s domestic law; on the other hand, the State intervening on a foreign territory cannot disregard the limits imposed by its own laws and Constitution. Therefore, within an ordinary criminal law model (even in the case of full cooperation between the intervening State and the State on whose territory the operation takes place) targeted killings and extraordinary renditions cannot be considered legal practices. Resort to lethal force encounters the inescapable limits we mentioned above and, with regard to extraordinary renditions, arrest and detention powers have to be exerted in a way that is consistent with the guarantees provided by the laws and the Constitution. Moreover, the transfer of captured suspects from one country to another should respect the procedures laid down in extradition treaties (which usually involve some judicial or administrative review, allowing the detainee to challenge the charges and the request for extradition) and should be banned whenever it might be feared that the extradited person may be subjected to torture or inhuman treatment. v

Targeted Killings and Extraordinary Renditions under the “War Paradigm”: Toward a Global War Model

As we have pointed out from the very beginning, the criminal law model has not been the only legal paradigm to be applied to the fight against international jihadist terrorism over the last decade. Other legal frameworks, either traditional or “hybrid” ones, have led to different operational approaches. Notably the so-called war model40 has been adopted – with some exceptions – by the us Administration since 9/11 to take action against Al-Qaeda and other 40

For an interesting study on targeted killings within the war model, see Amos N. Guiora, Targeted Killing: When Proportionality Gets All Out of Proportion, 45 Case W. Res. J. Int’l L. 235 (2012); Lindsay Kwoka, Comment, Trial by Sniper: The Legality of Targeted Killing in the War on Terror, 14 U. Pa. J. Const. L. 301, 303 (2011).

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terrorist groups, affiliated to the same network to a greater or lesser degree. Both President George W. Bush and President Obama supported this position, mainly in their respective capacity as Commander in Chief of the Armed Forces and publicly employing the word “war” to address the fight against jihadist terrorism, in a way that suggests consistency with the Authorisation for Use of Military Force Against Terrorists approved by the Congress on the 14th of September 2001.41 However, waging war is not without consequences from a normative point of view, since particular and specific rules exist to regulate armed conflicts, namely the laws of war and humanitarian laws.42 According to a majority of scholars, should one wish to consider the fight against terrorism as an armed conflict, such conflict would be international in nature; fewer have tried to describe the war on terror as a non-international armed conflict, recalling a slightly different regulatory framework, which usually applies to civil wars (notably, this is the position adopted by the US Supreme Court in Hamdi).43 Indeed, the fight against international terrorism can hardly be described by means of traditional categories, given its peculiar characteristics that we will point out, and demands – in any case – a wide interpretative effort, which does not lead to satisfactory results. The invasion of Afghanistan, a few weeks after 9/11, paved the way for the internationalisation of the fight against jihadist terrorism, clearly shifting from the historically predominant idea of transnational serious crime to a concept of war proper. By intervening in Afghanistan, the United States and its allies acted within the common paradigm of international armed conflict (State versus State), blaming that country – and the authoritarian Taliban regime – for offering a safe haven to Al Qaeda’s recruiting and training camps. At the time, the international community – almost unanimously – condemned the 9/11 attacks as an unacceptable act of aggression on American soil and – while the United Nations refrained from taking joint military actions against A ­ fghanistan – the US-led campaign was generally accepted under the wide umbrella of the “self-defence” principle, according to art. 51 of the UN Charter. Such an international armed conflict, even if the US Administration argued to the contrary, certainly falls within the scope of the ius in bello, notably the iii 41 42

43

Military Force Authorization, Pub. L. No. 107–40, 115 Stat. 224. Following the definition provided by the International Committee of the Red Cross, we hereby refer to the Geneva Conventions, the Hague Conventions, as well as subsequent treaties, case law, and customary international law. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

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and iv Geneva Conventions.44 The two conventions are aimed at safeguarding two macro-categories of subjects, respectively: enemy combatants captured during the course of war operations (prisoners of war) and unarmed civilians. According to the iii Geneva Convention, enemy combatants should belong to regular armed forces, irregular militias or armed corps of volunteers, provided that they answer to a chain of command, wear uniforms or clearly visible identification marks, carry arms openly and fight within the ius in bello. Such conditions must all be simultaneously met by a fighter, in order to satisfy the “membership criterion” and, therefore, be classified as an enemy combatant, thereby becoming a legitimate target. As is widely known, during an international armed conflict, enemy combatants do not enjoy any right to life and can, as a consequence, be legally targeted at any time, either while engaging in fights or while sleeping in barracks, unless they have laid down their arms, are injured, ill, shipwrecked or have been captured. Legal authority to kill any enemy combatant during wartime encounters other strict limits with respect to medical staff or chaplains whose killing would entail a war crime. If they are captured, enemy combatants should not be tortured or subjected to inhumane treatments and their status, as prisoners of war, should properly result from official documents. According to customary international law, in addition, they should be promptly released and repatriated after the cessation of hostilities; civilians captured during wartime, for security reasons or because they are engaging in hostilities, enjoy similar protections. The civilian status is not properly defined by the iv Geneva Convention; civilians, in fact, can be identified a contrario, given the definition of enemy combatant offered by the iii Geneva Convention and additional protocols. Namely, those who do not satisfy the membership criterion mentioned above – becoming legitimate targets – shall be deemed as civilians and protected accordingly. Civilians cannot be targeted or harmed unless they engage in hostilities and solely for the lapse of time during which they perform hostile actions. In fact, no shared interpretation of this latter provision has been reached so far: according to some scholars – who tend to tighten the scope of such exception – civilians should be considered legitimate targets as long as they are materially taking part in the fight (e.g. placing a bomb on the roadside) and limitedly to the time necessary to complete their hostile action. A wider interpretation, proposed by the Israeli Government, tends to extend the lapse 44

An interesting analysis of targeted killings within the scope of the Geneva Conventions is proposed by M. Mallette-Piasecki, Comment, Missing the Target: Where the Geneva Conventions Fall Short in the Context of Targeted Killing, 76 Alb. L. Rev. 262 (2013).

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of time during which the hostile actions are performed to all those preparatory acts that lead to the attack itself, such as organisation and training. According to the Israeli Supreme Court, which denied the illegality of targeted killings on this basis, the provision at stake can be read so as to seamlessly apply the exception to the whole series of hostile actions that a civilian may take part in, thus avoiding the so-called “revolving door effect”. This interpretative effort was aimed at finding a justification for the targeting of members of the Hamas militia and other extremist organisations, acting within the Gaza strip that do not satisfy the membership criterion and therefore, cannot be considered enemy combatants. The United States, under President Bush, tried to move along a different path to confront Al-Qaeda members and their hostile actions, developing a sort of tertium genus and introducing a distinction between lawful and unlawful enemy combatants. The former category, in particular, is characterised by the almost complete absence of protection afforded to its members who, while being still considered legitimate targets, could not enjoy the safeguards provided by international humanitarian law. In other words, if we apply the “Bush doctrine,” Al Qaeda members do not respect the laws of war and therefore they do not deserve to be treated as legitimate combatants. Therefore both the Israeli and the American positions considered Al-Qaeda members and jihadists in general as legitimate targets (as civilians engaging in hostilities or unlawful enemy combatants) by means of broad and evolutionary interpretations of international law and the laws of war, which lack of international recognition fails to provide a strong legal basis for widening the range of legitimate targets. To this extent, neither targeted killings45 nor extraordinary renditions46 can be considered legitimate options. Even if we consider the laws of war to be applicable to the war on terror, only enemy combatants or civilians engaging in hostilities could be legitimately killed and the rule should apply to targeted killings as well. 45

46

Melanie J. Foreman, Comment, When Targeted Killing Is Not Permissible: An Evaluation of Targeted Killing Under the Laws of War and Morality, 15 U. Pa. J. Const. L. 921 (2013); contra in favour of finding legal and moral justifications for targeted killings, Joshua Bennett, Exploring the Legal and Moral Bases for Conducting Targeted Strikes Outside of the Defined Combat Zone, 26 Notre Dame j.l. Ethic & Pub. Pol’y 549 (2012). David Weissbrodt & Amy Bergquist, Extraordinary Rendition and the Humanitarian Law of War and Occupation, 47 Va. J. Int’l L. 295 (2007); Leila Nadya Sadat, Ghost Prisoners and Black Sites: Extraordinary Rendition Under International Law, 37 Case W. Res. J. Int’l L. 309 (2006); M.L. Satterthwaite, The Legal Regime Governing Transfer of Persons in the Fight Against Terrorism, (nyu School of Law, Public Law Research Paper No. 10–27, 2010).

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Extraordinary renditions, extensively described above, violate – in any case – the protection afforded by the iv Geneva convention and customary international law to prisoners of war and civilian internees that should be protected from torture and inhumane treatment and whose detention should always be officially recognised. All these considerations, however, assume that the fight against international terrorism can be addressed as a conventional conflict; if this assumption was partially true in the Israeli case and – with respect to the us – during the invasion of Afghanistan, it can be argued that this is no longer the case. With the overthrow of the Taliban regime and the formal end of hostilities, the war on terror continued without a State-enemy, beyond every boundary of time and space. Such a globalised war, made up of scattered military actions, on the territory of States formally allied to (or, at least, not in a conflict with) the United States, can hardly be addressed by resorting to traditional international law, for how broad its interpretation could be;47 it is simply “extra-legal,” a grey area that has overturned accepted academic legal interpretation. vi

Concluding Remarks: Criminal Law and International Cooperation, Steering Away from the Dangerous “Grey Area”

This analysis of targeted killings and extraordinary renditions – viewed in the light of the main legal paradigms, which have been applied to the fight against jihadist terrorism over recent years – leads us to conclude that none of the existing models (i.e. the criminal law model, on the one hand, and the war model with its hybridizations, on the other hand) can be interpreted so as to reasonably assert the legitimacy of the practices at stake. Such practices, as we have seen, conflict with many of the fundamental principles that regulate both criminal law and the laws of war. In the first case, during peacetime, targeted killings and extraordinary renditions are enacted in overt violation of fundamental constitutional principles, 47

See Rosa Ehrenreich Brooks, War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror, 153 U. Pa. L. Rev. 675, 721–22 (2004). Brooks also suggests, in the short run, to use the international human rights law as “an alternative framework [to the law of armed conflict] for evaluating the legality of the war on terror, both internationally and in domestic fora» and, in the longer run, offers a reconceptualization of the law of armed conflict recommending «some of the kinds of safeguards that would be consistent both with the need to protect ourselves and others from new kinds of security threats and with the need to safeguard basic rights.” Id. at 761.

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which include the due process of law (and every related guarantee), the right to life and the right to psychological and physical integrity; in the second case, such practices – targeted killings in particular – have required a strong interpretative effort to bend and widen traditional international legal standards and adapt them to the expediencies of the war on terror. The war on terror has lost the character of a conventional international armed conflict, gradually evolving into something very different and unprecedented: the potential battlefield extended to the whole world, with no sovereignty or alliance preventing the United States from taking action against its “enemy.” The enemy itself, once the Taliban regime was defeated, has become somewhat vague and amorphous, since Al-Qaeda is a network of separate cells rather than a structured organisation per se. What is more, the war is no longer limited in terms of either time or space, eventually becoming a “patchwork” of single attacks that could potentially last indefinitely. If “the war goes where the enemies go,”48 it is quite reasonable to hold that there is no war proper, but just a global theatre of perpetual operations, which set aside any existing rule and place the entire world into a grey area of exceptions and legal anomalies. However, the notion, shared among western democracies, that we can simply abandon centuries of constitutional and democratic progress, when faced with exceptional circumstances, is patently unacceptable. The very strength of the rule of law can be measured in times of crisis and, we should think extremely careful before finding a justification to abandon it en bloc. In the attempt to discover the best way to confront international terrorism we should start from the point of refusing to behave like those we aim to defeat. The only permissible point of departure and final destination is our constitutional traditions and criminal law systems that offer the best guarantees in terms of preservation of the rule of law. It should, first of all, be recognised that international terrorism is a serious crime and should be treated accordingly. It has been suggested that there is no adequate definition of “terrorism” in existence nowadays, at the international level, and this lack of consensus prevents terrorism from being considered an “international crime” proper, but rather as a “transnational” one.49 It can be argued, by contrast, that reaching a unanimous consent is not the only way to ensure a strong international action. 48 49

See K. Anderson, Rise of the Drones: Unmanned Systems and the Future of War, Written Testimony to the h.r. Subcommittee on Nat’l Sec. and Foreign Affairs (Mar. 18, 2010). For an interesting analysis of this issue see Antonio Cassese, The Multifaceted Criminal Notion of Terrorism in International Law, 4 J. Int’l Crim. Just.933 (2006).

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Over the centuries, democratic countries have developed several forms of cooperation regarding criminal and judicial matters, without necessarily resorting to international criminal law. European States, in particular, have a longstanding tradition of police and judicial cooperation, conducted either through the European Union – whose unique legal system has allowed Member States to achieve tremendous innovations such as the European Arrest Warrant and establish innovative “institutions” like Europol, Eurojust and the European Judicial Network – or by means of traditional inter-governmental links. All these should be regarded as key tools in the fight against serious organised crime, and international terrorism in particular. Obviously, these forms of cooperation should be further reinforced by favouring a stronger mutual trust between national law enforcement agencies and judicial authorities, based on shared procedural safeguards, evidentiary rules and – eventually – a shared set of constitutional values. A stronger and established cooperation at the regional level could represent a solid and reliable foundation on which to build a wider international network of Countries, committed to fighting jihadist terrorism within a criminal law paradigm, without necessarily resorting to the use of military force. In this context, the United Nations should play a new central role, in developing ad hoc instruments to formalise inter-regional cooperation and ensure democratic States the operational capacity to pursue jihadist terrorists beyond national and regional borders. In particular, quasi-judicial evaluation procedures could be established to assess the legitimacy of “extradition” requests under a set of clear and widely shared guarantees, thus avoiding unilateral initiatives. Once a request was duly evaluated, the State that is hosting the alleged terrorist should be duty bound to surrender the suspect to the requesting State. In the case of dissent, however, specific remedies could be provided to “force” the host State to comply with its obligations. In particular, the United Nations could resort to a wide and gradual set of counter-measures: the first step should always be represented by diplomatic and political suasion, whose effectiveness would greatly depend on the credibility gained by such a new form of cooperation; the second step could consist in the imposition of sanctions, either of an economic and political nature, to exert a form of indirect coercion and avoid moving to the final step, represented by the use of force. Armed intervention, by means of an “international police force,” should be as targeted as possible and represents the last resort option, for those States unwilling or unable to provide effective cooperation in the pursuit of suspected terrorists.

chapter 10

Judicial Creativity in Australia and Implications for Judicial Independence H.P. Lee i

Introduction

In this article I explore how the Australian High Court, against the backdrop of a Constitution which does not contain the equivalent of a full blown Bill of Rights, developed a fundamental guarantee referred to as the implied right of political communication. That development received polarised reaction at its early conception. The vigorous attacks launched against the Court’s engagement with judicial creativity based the attacks on the claim of an incursion into the territory of parliamentary sovereignty and questioned the legitimacy of the Court regarding this development. In that same period the verbal onslaught on the Court became more severe in the wake of judgments rendered in two major cases concerned with “native title.” The concerns that criticisms of such judicial creativity would somehow diminish the stature of the Court and undermine its independence have never been borne out. On 7 October 1992, a Senator in the Upper House of the Australian Parliament (Senator Spindler) posed a question to the Minister representing the Attorney-General (Senator Tate): I refer him to Mr. Justice Toohey’s reported statement that the High Court could construct a bill of rights based on ‘fundamental common law liberties’. I ask the Minister: does he agree, firstly, that the High Court has the role to interpret and protect the Australian Constitution and subsequent legislation enacted under that Constitution and, secondly, that it is the responsibility of Parliament to ensure that individual liberties are enshrined in law and to balance the freedom of the individual with the rights of others and the well-being of the community as a whole? Finally, is the Government going to abdicate its responsibilities to the High Court and allow the Court to usurp the role of Parliament?1

1 Commonwealth, Parliamentary Debates, Senate, 7 October 1992, 1280 (Senator Siegfried Emil Spindler) (Austl.).

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Senator Tate replied: “We will not allow the High Court to usurp that role.”2 What spurred this questioning and the ensuing blistering attack on the High Court of Australia, the apex court in the land, by Senator Tate? To put the explanation in context, it should be noted that in Australia at the national level there does not exist an express Bill of Rights. The framers of the Constitution were clearly fascinated by the us Constitution and that fascination is manifested by the similarities in the structural framework of the Constitution. However, that fascination did not persuade the framers to adopt a version of the us Bill of Rights. While there is a sprinkling of express rights in the Constitution, the framers of the Constitution, according to Mason CJ, reposed their confidence in the belief that “the citizen’s rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy.”3 The judges make an oath or an affirmation upon assuming office to “do right to all manner of people according to law without fear or favour, affection or ill will.” Although there is no explicit reference to “protect and maintain the Constitution,” the High Court of Australia has regarded itself as the guardian of the Constitution. A month prior to the attack in the Australian Parliament, an implied freedom of political communication was recognised by the High Court of Australia in the landmark cases of Nationwide News Pty Ltd v. Wills4 (hereafter referred to as “Nationwide”) and Australian Capital Television Pty Ltd v. Commonwealth5 (hereafter referred to as “actv”). These decisions were followed by a controversial speech made by one of the High Court Justices, Justice Toohey, who had speculated on the potential for judicial development of an equivalent to a Bill of Rights. The judicial imprimatur given to an implied freedom of freedom of political communication has been described as an “unprecedented step.”6 Professor M.J. Detmold in lauding the development exclaimed the “good

2 Id. at 1281 (Senator Michael Carter Tate). 3 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 clr 106, 136 (Austl.). A less sublime reason was proffered for the suspicion of the framers about the formulae of rights which was focused on the concern that a Bill of Rights might have on the validity of then existing racially discriminatory legislation. Despite this less than noble sentiment underlying the intentions of the framers, one cannot detract from the magnificent achievement of the framers in crafting a constitutional document which became the birth certificate of a new federal polity. See H.P. Lee, The Implied Freedom of Political Communication, in Australian Constitutional Landmarks 383 (H.P. Lee & G. Winterton, eds., 2003). 4 (1992) 177 clr 1 (Austl.). 5 (1992) 177 clr 106.(Austl.). 6 Nicholas Aroney, A Seductive Plausibility: Freedom of Speech in the Constitution, 18 U. Queensl. L. Rev. 249 (1995).

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fortune” in having the “most creative High Court in our history.”7 On the other hand, this development has been viewed as an unjustified intrusion into the legislative domain.8 A former Chief Justice of the High Court said that the sovereignty of Parliament had been impaired and that the implication was inconsistent with parliamentary democracy.9 In this article I seek to explore whether judicial creativity of the type manifested by the High Court in the form of constitutional implications endangers the independence of the Court. ii

Nationwide and actv

In Nationwide the owner of The Australian was prosecuted for publishing an article that claimed that the work of Australian workers was regulated “by a mass of official controls, imposed by a vast bureaucracy in the ministry of labour and enforced by a corrupt and compliant ‘judiciary’ in the official Soviet-style Arbitration Commission” [now replaced by the Australian Industrial Relations Commission]. The article further described members of the Commission as “the corrupt labour ‘judges’”. The prosecution was launched under a provision of the Industrial Relations Act 1988 (Cth), which purported “to forbid, under the sanction of fine and/or imprisonment, every written or oral use of words, however justified and true, calculated to bring into disrepute either the [Australian Industrial Relations Commission] or any member of the Commission in his or her capacity as such a member.”10 It was alleged that the article contained “a virulent attack” on the integrity and independence of the Commission and that the words used were calculated to bring the Commission into disrepute. The provision was invalidated by the High Court. actv was concerned with a challenge to the validity of the Political Broadcasts and Political Disclosures Act 1991 (Cth) which inserted new Part iiid into the Broadcasting Act 1942 (Cth). The thrust of the new provisions was to ­prohibit political advertising by means of radio and television in relation to the 7 8

9

10

M.J. Detmold, The New Constitutional Law, 16 Sydney L. Rev. 228, 228 (1994). See, e.g., Tom Campbell, Democracy, Human Rights and Positive Law, 16 Sydney L. Rev. 195 (1994); J. Goldsworthy, Implications in Language, Law and the Constitution, in Future Directions in Australian Constitutional Law 150 (G. Lindell, ed., 1994). G. Barwick, Democracy too precious for political tinkering, Australian, Apr. 3 1995, at 11. See also J. Goldsworthy, The High Court, Implied Rights and Constitutional Change, Quadrant, Mar. 1995, at 46. Industrial Relations Act 1988 (Cth) (Austl.).

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publishing of advertisements of “political matter” and the publishing of matter on behalf of a government or government authority during an election period in relation to a federal election or referendum, a Territory election or a State or local government election. The prohibition did not apply to the broadcasting of items of news or current affairs, comments on such items, or talkback radio programs. The Act compelled a broadcaster, in relation to Commonwealth, State and Territory elections, to make election broadcasts free of charge for or on behalf of any political party, person or group to whom free time was granted by the Broadcasting Tribunal. Ninety per cent of the free time in respect of an election was to be granted to political parties which were already represented in the relevant Parliament or legislature on a proportional basis to their respective voting shares at the last election. In broad terms, Deane and Toohey JJ of the High Court in Nationwide first of all stated that the doctrine of representative government was one of a number of general doctrines of government “which underlie the Australian Constitution and are implemented by its provisions.” They asserted that the rational basis of the doctrine is that “all powers of government ultimately belong to, and are derived from, the governed.” The exercise of the ultimate power of governmental control is manifested by the function of voting in relation to the election of members of the federal Parliament and at a referendum in relation to amendment of the Constitution. Hence there must be a freedom for the people of Australia to communicate among themselves and between themselves and their representatives. This fundamental freedom was derived by implication and was referred to as the implied freedom of political communication. Since the freedom was derived by implication from the Constitution it is a constitutionalised freedom, as aptly observed by Brennan J: “Once it is recognised that a representative democracy is constitutionally prescribed, the freedom of discussion which is essential to sustain it is as firmly entrenched in the Constitution as the system of government which the Constitution expressly ordains.”11 This means that it could not be overridden by ordinary parliamentary legislation. The freedom could only be negated by the High Court itself or by using the elaborate and complex amendment procedure prescribed by the Constitution.12 This creative interpretation of the Constitution inevitably led to more questions as new cases came before the Court attempting to invoke this new 11 12

(1992) 177 clr 1, 48–49 (Austl.). The process of amendment of the Commonwealth Constitution is set out in Australian Constitution s 128.

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­freedom in varying contexts. What are the parameters of this implied freedom? Both Nationwide and actv were concerned with challenges to the validity of federal legislation. Would the implied freedom constrain the exercise of legislative power by the State legislatures? Would the common law principles of defamation law have to be reshaped to accord with the implied freedom? Brennan J in Nationwide described the implied freedom as a “freedom to discuss governments and governmental institutions and political matters” while Gaudron J described it as a “freedom of political discourse.” In actv, Mason CJ referred to it as a “freedom of communications, at least in relation to public affairs and political discussion.” Deane and Toohey JJ in Nationwide would extend it to “all matters, including matter relating to other levels of government within the national system [of government].” Sir Daryl Dawson, in a public address, pointed out that in the context of judicial decisions at common law, if judicial creativity exceeds “acceptable limits, there is a remedy, notwithstanding that the machinery of legislative change tends to be cumbersome and slow.” However, in the area of constitutional law, “there is no cure for wrong decisions save for constitutional amendment which is, for all practical purposes, no cure at all.” Obviously, Sir Daryl Dawson has in mind the dismal track of record of failed constitutional referenda in Australia.13 iii

Lange: Achieving Unanimity

In the wake of other cases which called in question the parameters of the implied freedom, the High Court in a conspicuously unanimous decision in Lange v. Australian Broadcasting Corporation14 settled a number of propositions. The Court articulated a test for determining whether a law infringes the implied freedom; When a law of a State or Federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by §§ 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. Firstly, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Secondly, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible 13 14

Sir Daryl Dawson, Do Judges Make Law? Too Much?, 3 The Jud. Rev. 1, 7 (1996). (1997) 189 clr 520 (Austl.).

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with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by § 128 for submitting a proposed amendment of the Constitution to the informed decision of the people . . . . If the first question is answered ‘yes’ and the second ‘no’, the law is invalid.15 It should be noted that in 2004, the High Court adopted a reformulated Lange test: the words ‘the fulfilment of’ were replaced by “in a manner.”16 The High Court made a subtle shift in the rationale for the implied freedom from a “freestanding principle” of representative democracy to one which focuses on the test and structure of the Constitution. The Court emphasised that instead of asking the question “what is required by representative and responsible government?” it is necessary to ask “what do the terms and structure of the Constitution prohibit, authorise or require?”17 Sections 7 and 24 and related sections of the Constitution effect a protection of freedom of communication between the people concerning “political or government matters” which enables a “free and informed choice” to be made by the people as electors. The implied freedom does not confer “personal rights” on individuals. It is “negative” in that it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control.18 The implied freedom is not confined to election periods relating to the federal Parliament. In Lange, the Court also held that the common law must be reshaped to accord with the implied freedom.19 iv

Implied Freedom Not Absolute

A significant aspect of the consolidation of the principles relating to the operation of the implied freedom is the endorsement by the Court that the 15 16 17

18

19

Id. at 567–568. On “proportionality” see McCloy v. nsw [2015] hca 34. See Coleman v Power (2004) 220 clr 1, 50 (Austl.). (1997) 189 clr 520, 566–567 (Austl.). This was heavily influenced by the judgment of McHugh J; see Adrienne Stone, The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication, 23 Melb. U.L. Rev. 668, 672 n.17 (1999). This was stated by Brennan J. in Cunliffe v Commonwealth (1994) 182 clr 272, 326 (Austl.). It was also endorsed in Lange v Australian Broadcasting Corporation (1997) 189 clr 520, 560 (Austl.). In the case the Court provided for an expanded common law of qualified privilege in relation to defamatory proceedings.

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implied freedom of political communication is “not absolute.” In consequence, the Court sought to formulate a test to determine what would constitute a permissible or legitimate intrusion into the implied freedom. Various members of the Court over the course of time invoked either a “reasonably appropriate and adapted” test or a test of “proportionality.” Gleeson CJ in Mulholland v. Australian Electoral Commission said that criticisms could be made of both expressions, “reasonably appropriate and adapted,” and “proportionality.” He also indicated that that either formula would be acceptable to him. The Chief Justice stated: I have no objection to the use of the term proportionality, provided its meaning is sufficiently explained, and provided such use does not bring with it considerations relevant only to a different constitutional context. Equally, I have no objection to the expression “reasonably appropriate and adapted”, which has a long history of application in many aspects of Australian jurisprudence.20 While there is still consensus on the existence of the implied freedom there are differing views about the “reasonably appropriate and adapted” test and its application.21 Professor Nicholas Aroney acknowledged that constitutional implications “are, in a certain sense, necessary and unavoidable” and that the question “is whether a particular constitutional implication is legitimate.”22 He drew on the suggestion of Professor George Winterton “that a distinction be drawn between legitimate implications based on specific constitutional provisions

20 21

22

(2004) 220 clr 181, 200 (Austl.). See H.P. Lee, The “Reasonably Appropriate and Adapted” Test and the Implied Freedom of Political Communication, in Law and Government in Australia, 59 (M. Groves, ed., 2005); Jeremy Kirk, Constitutional Guarantees, Characterization and the Concept of Proportionality, 21 Melb. U.L. Rev. 1 (1997). In Bennett v President, Human Rights and Equal Opportunity Commission, it was held by Finn J. of the Federal Court of Australia that the impugned law was invalid because, as an effective burden upon the constitutional freedom of communication, it was not reasonably appropriate or adapted “to serving even the end of furthering the efficient operation of government.”(2003) 134 fcr 334, 354 (Austl.). For a contrasting case where the impugned law was held to have satisfied the “reasonably appropriate and adapted” test, see Levy v Victoria (1997) 189 clr 579 (Austl.). N. Aroney, The Implied Rights Revolution – Balancing Means and Ends?, in Constitutional Advancement in a Frozen Continent: Essays in Honour of George Winterton, 187 (H.P. Lee, P. Gerangelos, eds., 2009).

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and illegitimate implications based on extra-constitutional notions.”23 Professor Aroney concluded that the reasoning of the High Court in the free-speech cases “undermined the rule of law by relying on extra-constitutional notions to introduce an implied freedom of political communication into Australian law when none was deliberately included in the text of the Constitution.”24 v

Judicial Creativity in Native Title Adjudication

Judicial creativity displayed in the “native title” litigation engendered a storm of controversy and the High Court was subjected to relentless attacks. In 2004, the High Court in the landmark case of Mabo25 acknowledged the recognition by the common law of Australia of a form of native title “which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands.”26 Four years later in the Wik case,27 the Court by a narrow majority rejected the proposition that native title could be extinguished by the grant of a pastoral lease. In between these two cases the federal Labor government had introduced legislation to ensure further protection of native title and to establish a system for dealing with native title claims. The media carried reports of criticisms by the Deputy Prime Minister for alleged delay in handing down judgment in the Wik case. In an exchange of correspondence between Chief Justice Brennan and Mr. Fischer, the former wrote: You will the more readily appreciate that attacks of the kind that you have made, emanating from a Deputy Prime Minister, are damaging to this Court. You will appreciate that public confidence in the constitutional institutions of Government is critical to the stability of our society. By a convention which is based in sound practice, judges do not (and certainly should not) publicly attack the members of the political branches of government, and the members of the political branches do not (and certainly should not) attack the judges except on a substantive motion 23

Id. See G Winterton, Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends?, in Interpreting Constitutions: Theories, Principles and Institutions 121 (C. Sampford, K. Preston, eds., 1996). 24 Aroney, supra note 22, at 187. 25 Mabo v Queensland (No 2) (1992) 175 clr 1 (Austl.). 26 Id. at 15. 27 Wik Peoples v Queensland (1996) 187 clr 1 (Austl.).

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in the parliament. This convention does not restrict criticism of Court judgments, but it does restrict criticism of judicial integrity or devotion to judicial duty.28 The severity of the attacks on the High Court was underlined by the intemperate language deployed: “‘bogus’, ‘pusillanimous and evasive’, a ‘pathetic… self-appointed [group of] Kings and Queens’, a body ‘packed with feral judges’, ‘a professional labour cartel’.”29 vi

Judicial Independence Unaffected

Professor George Winterton highlighted the extracurial warning by Justice Kirby in 1990 “that increased judicial activism could lead to demands for greater accountability of judges and, consequently, diminished judicial independence”.30 More than two decades later the implied freedom of political communication and the recognition of native title are settled doctrines of the Australian legal system. The judicial creativity displayed in both instances has not resulted in any diminution of the stature of the High Court nor has it eroded public confidence in the Court. In the case of the implied freedom, the High Court was obviously cognisant of the furore over the implication of the freedom of political communication. In subsequent cases, it shifted the jurisprudence of an “underlying” doctrine of representative government to an interpretation tied to the “text and structure” of the Constitution. This also has the effect of precluding an expansion of fundamental guarantees and perhaps, thus sounding a death knell to Justice Toohey’s controversial notion of developing a full blown Bill of Rights by the process of necessary implications. The doomsday scenario projected by mining and pastoral interests as arising from the Mabo and Wik decisions has not materialised. There is wisdom in the following observations of Chief Justice Gleeson: It is important not to confuse confidence with popularity. It is not the business of judges to try to please when they make their decisions. Doing 28 29 30

The correspondence is reproduced in H.P. Lee and Enid Campbell, The Australian Judiciary 71–74 (2d ed., 2013). Michael Kirby, Attacks on Judges: A Universal Phenomenon, 72 Austl. L.J. 599 (Aug. 1998). George Winterton, The Separation of Judicial Power as an Implied Bill of Rights in Future Directions in Australian Constitutional Law, 207 (G. Lindell, ed., 1994) referred to Kirby, M.D., Judicial Independence in Australia Reaches a Moment of Truth, 13 U. New South Wales L.J. 187, 194–195 (1990).

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justice without fear or favour requires, from time to time, making decisions that will displease some, perhaps many people. The public understand that. Confidence in the courts includes trusting them to pursue justice, not applause.’31 vii

Contemporary Developments

The implied freedom of political communication continues to be actively invoked in a number of cases. There has been no retreat on the existence of the freedom. Impugned legislation has been upheld on the ground that it satisfies the “reasonably appropriate and adapted test”32 or that there was no ­impermissible burdening of the implied freedom.33 In Monis v. The Queen,34 a challenge to a law which rendered it an offence to use a postal service in an “offensive” way was unsuccessful while in Attorney-General (sa) v. Corporation of Adelaide,35 a challenge to the validity of a by-law which prohibited “haranguing, canvassing and preaching on a road without a permit” and “distribution of literature” was successful. viii

Who Speaks for the Court?

A final aspect which I wish to discuss and which arose from the attacks on the court was the role of the federal Attorney-General.36 The traditional view is that the federal Attorney-General, in the role as first law officer of the Crown, would be the “defender of the federal judiciary.”37 The then federal AttorneyGeneral (Daryl Williams) publicly rejected this traditional position and asserted that “the case for the Attorney-General of the Commonwealth, a State or a Territory being the defender of the judiciary in his or her jurisdiction is confusing and unconvincing.”38 The reluctance of the then federal Attorney-General to come to the defence of the Court could be attributed to the fact that the 31 M. Gleeson, The Rule of Law and the Constitution 82 (2000). 32 Hogan v Hinch (2011) hca 4; (2011) 243 clr 506 (Austl.). 33 Wotton v Queensland (2012) hca 2; (2012) 246 clr 1 (Austl.). 34 (2013) hca 4 (Austl.). 35 (2013) hca 3 (Austl.). 36 Supra note 28, at 287–289. 37 S. Parker, The Independence of the Judiciary, in The Australian Judicial System 82 (B. Opeskin, F. Wheeler, eds., 2000). 38 D.R. Williams, Who Speaks for the Courts, (Nov. 11–13, 1994) (Paper presented at the National Conference on Courts in a Representative Democracy, Canberra).

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“ignorant and uninformed” attacks on the Court, especially following the Wik decision, “were coming from his own political ranks.”39 The Honourable Sir Anthony Mason (Chief Justice of the High Court of Australia 1987–1995) acknowledged the dilemma facing the federal Attorney-­ General but also asserted that as first law officer it was his responsibility to uphold the rule of law. He observed, “That means that there will be occasions when he should respond to irresponsible criticisms which threaten to undermine public confidence in the judiciary.”40 He expressed the belief “that nothing short of a defence by the Attorney-General will attract prominent media attention and counter-balance the adverse publicity.”41 The federal AttorneyGeneral subsequently acknowledged that the Attorney-General has a role to play in the face of political criticism of the courts: “Sustained political attacks capable of undermining public confidence in the judiciary may call for ­defence by the Attorney-General.”42 39 40 41 42

L.J. King, The Attorney-General, Politics and the Judiciary, 29 W. Austl. L. Rev. 155 (2000). A. Mason, Address, 35 L. Soc’y J. 50, 51 (1997). See also supra note 28, at 288. Id. See also Ben Heraghty, Defender of the Faith? The Role of the Attorney General in Defending the High Court, 28 Monash U.L. Rev. 206 (2002). Darryl Williams, Judicial Independence and the High Court, 27 U.W. Austl. L. Rev. 140, 151 (1998). See also H.P. Lee & Enid Campbell, The Australian Judiciary 288 (2d ed., 2013).

Part 3 Judicial Independence and Accountability: Contemporary Analysis

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chapter 11

Judicial Independence Without Power: Norms in Search of Law Wayne McCormack International substantive norms proscribe many threats to human life and dignity. Although each is “illegal” under a variety of international customs and covenants, there is absolutely no international enforcement worthy of the name. In the absence of enforcement power, speaking of judicial independence in transnational norms is almost meaningless – not entirely, because courts are able to articulate and explicate norms. But the very concept of a judiciary implies a Rule of Law that is enforceable by legitimate power, not just aspirational compliance. I have written elsewhere about gaps in the international system of justice and the dangers those gaps present.1 In this paper, I want to explore the implications of those gaps for judicial independence, for both domestic courts and international tribunals. Standards relating to judicial independence rarely speak directly to this issue. The Mt. Scopus Standards have one paragraph on the subject: 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 By contrast, American Bar Association standards are utterly silent on the need for enforcement of judicial decrees.3 The International Commission of Jurists does not promulgate its own standards but relies on various norm-setting conventions as if they establish standards of judicial independence.4 Even the 1 Wayne McCormack, International Crime and Punishment: The Gap Through Which to Drive a Mafia, 31 Ariz. J. Int’l & Comp. L. (2015). 2 Mt. Scopus Approved Revised International Standards of Judicial Independence, Int’l Ass’n of Jud. Indep. & World Peace (Mar. 19, 2008), http://www.jiwp.org/#!mt-scopus-standards/c14de. 3 aba, Model Code of Judicial Conduct, http://www.americanbar.org/groups/professional_ responsibility/publications/model_code_of_judicial_conduct.html. 4 International standards on the independence and accountability of judges, lawyers and prosecutors, Int’l Commission of Jurists (last visited Feb. 6, 2016), http://www.icj.org/themes/ centre-for-the-independence-of-judges-and-lawyers/international-standards/.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_012

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World Justice Project, which devotes substantial energy to the Rule of Law, merely insists on “regulatory enforcement” and that the “criminal justice system be effective,” with no mention of enforcement for the judiciary.5 This paper first briefly explores the defects in the enforcement of internationally recognized norms in three major categories affecting the human condition. Then it will turn to the concept of law and argue for the creation of mechanisms for bringing cases to judicial tribunals, along with the power to enforce tribunal rulings. i

Trafficking and Labor

Slavery became a subject of treaty law in the 1800s, and some scholars believe it would have been considered a crime under international law by the middle of that century. It was not until 1926, however, that the subject was mentioned in an international document. Finally, in 2003, a treaty committed most nations of the world to taking effective steps to stamp out trade in humans, placing a special emphasis on children and women. Despite universal revulsion toward slavery, there are many forms of forced labor still in practice, and international law retains some definitional issues which need to be resolved. The dominant international convention on forced labor is Protocol I of the Convention Against Transnational Organized Crime, commonly known as the Palermo Protocol. It defines the phenomenon this way: (a) “Trafficking in persons” shall mean the recruitment, transportation, transfer…of persons, by means of the threat or use of force or other forms of coercion, deception, abuse of power or of a position of vulnerability, … for the purpose of exploitation. Exploitation shall include, at a minimum, prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs6 The Protocol obligates each signatory nation to criminalize trafficking and to provide assistance to victims of trafficking. Various terms were used through the centuries to describe forms of involuntary servitude – villeinage, serfdom, 5 What is the Rule of Law?, WORLD Just. Project (last visited Feb. 6, 2016), http://worldjusticeproject.org/what-rule-law. 6 United Nations Convention against Transnational Organized Crime and the Protocols Thereto, United Nations Off. on Drugs and Crime (last visited Feb. 6, 2016), http://www.unodc.org/ unodc/en/treaties/CTOC/index.html#Fulltext.

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slavery, peonage – all sharing common features of what today we call “forced labor.” As the Palermo Protocol indicates, force can range from outright coercion to taking advantage of vulnerability, particularly in the case of minor children. There are no reliable estimates of the number of persons or dollars involved in the sex or forced labor trades. For example, in 2001, the fbi ­estimated 700,000 women and children were trafficked worldwide, unicef estimated 1.75 million, and the International Organization on Migration (iom) ­estimated a mere 400,000.7 In 2008, the U.S. State Department estimated that “approximately 800,000 people are trafficked across national borders, which does not include millions trafficked within their own countries.”8 After 2008, the State Department ceased publishing estimated numbers. The International Labor Organization initially estimated that 12.3 million people were in forced labor but the ilo upped its estimate to 21 million in 2012.9 In 2014, the Walk Free Foundation estimated that 35.8 million people were living in some form of slavery.10 By comparison, the slave trade in the 18th Century brought over 10 million persons from Africa to the West, although the numbers worldwide were much higher. The unauthorized immigrant work force forms a major social controversy in both United States and Europe in the 21st Century. The U.S. version often goes something like this: a “coyote” offers to bring migrants from Central or South America through Mexico to the United States for an exorbitant fee. Often, the migrant may be abandoned in unsafe conditions. If there is a job, the employer may or may not make good on wages and other promises, but the worker has few rights because any recourse to the legal system to enforce promises will bring the worker to the attention of immigration officials and result in deportation. In the realm of sex trafficking, typically exploiting minor children, the victim or family is promised a job, perhaps as a nanny or maid, then brought to the host country, relieved of her or his passport, and forced into prostitution. Running throughout all the international conventions and related dialogue is the theme of preventing involuntary servitude while allowing consenting 7 8 9

10

pbs Frontline, Sex Slaves, Estimating the Numbers, Pub. Broadcasting Serv. (originally aired Feb. 7, 2006), http://www.pbs.org/wgbh/pages/frontline/slaves/etc/stats.html. U.S. Department of State, Trafficking in Persons Report, 7 (June 2008), http://www.state .gov/documents/organization/105501.pdf. Press Release, International Labor Organization, 21 million people are now victims of forced labour, ilo says (June 1, 2012), http://www.ilo.org/global/about-the-ilo/newsroom/ news/WCMS_181961/lang--en/index.htm. The Global Slavery Index, http://www.globalslaveryindex.org/ (last visited Feb. 6, 2016).

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adults to barter or sell their labor subject to minimum standards of labor conditions. The modern dilemma with sweatshops can be simply stated: a wage that would be substandard in one part of the world may be a boon to those in another locale. The need for standardizing labor conditions, the economics of global labor markets, and methods for making gains from globalization are beyond the dimensions of this article. In the current context, however, it is worth noting that labor conditions in the U.S. did not become subject to standardized minima until the U.S. recognized that it was a single national labor ­market11 – when the world recognizes that it is a single global labor market, then standardization of labor conditions should naturally follow. Until that occurs, the possibility of exploitation remains a local phenomenon. With regard to enforcement issues, there is one particularly tragic case of sex trafficking from the European Court of Human Rights.12 This case concerned the suicide death of a young Russian girl who took her life after being held to work in a “cabaret” in Cyprus. She had fled the confines of her apartment and was found by the brother of the cabaret owner, who took her to a police station. The police failed to detain her because she had broken no law, and returned her to the owner’s premises. Somewhat later she was found dead on the street below her open window. The Russian father charged both Russian and Cypriot authorities with failure to protect her life13 as well as failure to prevent her enslavement.14 With regard to the first charge, the Court held that the Convention enjoined the state not only to refrain from the intentional and unlawful taking of life but also to take appropriate steps to safeguard the lives of those within its jurisdiction. For the Court to find a violation of the positive obligation to protect life, it would have to be established that the authorities had known or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual. But with respect to the claim regarding forced labour, the Court held that the Cypriot authorities had sufficient notice of the girl’s circumstances that they should have launched an investigation into the possibility that she had been trafficked and enslaved. The Court took notice that “artiste” visas had 11

12 13 14

After decades of resistance, the U.S. Fair Labor Standards Act was adopted to eliminate child labor, while providing for maximum hours and minimum wage. See United States v. Darby, 312 U.S. 100 (1941). Rantsev v. Cyprus, [2010] echr 25965/04. echr art. 2: “Everyone’s right to life shall be protected by law.” echr art. 4: 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour.

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been used for sex trafficking in a number of instances, and that the practice should have led to an inquiry when she was brought to the police station. Sex Tourism The horrific circumstances of children engaged in commercial sex began to catch the world’s attention in the 1990s following the demise of the Soviet Union and the shifting economic arrangements of “globalization.” In particular, Cambodia and Thailand became destinations for sex tourists, many of whom were interested in younger and younger targets of opportunity. The economies of those countries and their neighbors made it possible for purveyors to “purchase” children from their families for nominal amounts and then employ those children in providing services to sex tourists. The World Tourism Organization and unicef worked with various other groups to develop standards of good practice to limit sex tourism exploitation.15 The U.S. Criminal Code contains a number of provisions that can be brought to bear on the commercial sex trade. One chapter deals with forced labor.16 The chapter dealing with “sexual abuse” criminalizes nonconsensual sex within federal territories or the extraterritorial jurisdiction of the U.S., including age limits for consent.17 The chapter on “sexual exploitation and other abuse of children” criminalizes sexual behavior with children, either within the special jurisdiction of the U.S., or through use of the channels or instrumentalities of interstate commerce.18 One approach to dealing with the phenomenon of commercial sex exploitation is to reduce the demand by criminalizing the patron. In the leading case dealing with the U.S. statutes, the Eleventh Circuit affirmed a conviction of a man who “merely” decided to have paid sex with a young boy in Cambodia.19 Traveling to a foreign country and paying a child to engage in sex acts are indispensable ingredients of the crime to which Clark pled guilty. Congress did not exceed its power ‘to regulate Commerce with foreign Nations’ in criminalizing commercial sex acts with minors committed by U.S. citizens abroad.

15

Good Practices and Local Initiatives, World Tourism Organization: Ethics and Responsibilities, http://ethics.unwto.org/content/good-practices-and-local-initiatives (last visited Feb. 6, 2016). 16 18 u.s.c. §§ 1581–1596. 17 18 u.s.c. §§ 2241–2248. 18 18 u.s.c. §§ 2251–2260A. 19 United States v. Clark, 435 F.3d 1100 (11th Cir. 2006).

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In a handful of other cases, the U.S. has taken on child pornography by penalizing the possessor of sexual images of children.20 Other countries have taken strides in this direction as well.21 An important issue in this area is the degree to which possessors of child pornography may be liable to pay compensation to the victims.22 Despite the efforts to curtail child pornograpy, the important point here is that no country will, or even could, claim jurisdiction over the offense of sex slavery in another country, only jurisdiction over the consumer of that trade. Thus, no country other than the country in which the slavery occurs or the country from which the trafficked victim originates could claim authority to punish the perpetrator of the offense. That is truly abhorrent to universal principles of human dignity. ii

Atrocities

A loac The history of the Law of Armed Conflict is widely familiar. It runs from ancient sources such as Sun Tzu, the Book of Manu, and the Torah, through various medieval authors, to modern conventions and codes. The first full code was the Lieber Code of 1861, and the latest is the Rome Statute of the International Criminal Court.23 Although there are several special tribunals to deal with particular episodes of “war crimes,” as well as an International Criminal Court, the world has yet to implement a coherent body of judicial authority and enforcement power with regard to serious intrusions into human dignity. Curiously, there was a shortlived multinational tv series about a police force that never existed.24 As one knowledgeable reviewer put it, “I could almost accept a show that gave the icc a police force; after all, who among us doesn’t wish it had one? But I cannot accept a show that invents an icc police force that investigates [crimes such as serial killers and smugglers rather than war criminals].”25 Not only 20 21 22 23 24 25

United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009); United States v. Runyan, 290 F.3d 223 (5th Cir. 2002). E.g., Sec’y for Justice v. Man Kwong Choi, [2008] 5 h.k.l.r.d. 519(h.k.). Paroline v. United States, 134 S.Ct. 1710 (2014). Int’l Crim. Ct., http://www.icc-cpi.int/EN_Menus/ICC/Pages/default.aspx (last visited Feb. 6, 2016). Crossing Lines, imdb, http://www.imdb.com/title/tt2427220/ (last visited Feb. 6, 2016). Kevin Jon Heller, The Problem with “Crossing Lines,” Opinio Juris (June 24, 2013), http:// opiniojuris.org/2013/06/24/the-problem-with-crossing-lines/.

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is the jurisdiction of the International Criminal Court very limited, it has no enforcement power of its own and must rely on member states for the exercise of power. Why are humans so violent? The drive for dominance is understandable. Just as a society needs a government with a monopoly on the use of force, there may well be a corollary need at the international level for a dominant force to restrain aggression. Perhaps the presence of the two superpowers during the Cold War kept the lid on a number of volatile situations which blew apart with the breakup of the Soviet Union. The human impulse to violence has generated a counter-force in the form of rules to confine and restrain the intensity of that violence – rules often violated but nevertheless recognized in the form of a “law of war.” It is worth pausing to consider the impetus for a “law of war.” What is the point of a gentlemanly insistence on “playing by the rules” in a “game” that is designed to kill people? Most explanations for “rules of war” have essentially pragmatic roots.26 One is a straightforward self-interested expression of the Golden Rule: In this context, “Do unto others as you would have them do unto you” could be based on the hope that humane treatment of enemies will prompt their humane treatment of you and your soldiers. Another aspect of self-interest is that some restraints on force, especially those regarding environmental damage, is that it hardly makes sense to obtain control of a piece of territory that is no longer useful for anything. In similar fashion, a sensible leader would generally prefer a subservient population rather than a mass of bodies. Nation-states have been accustomed to independent sovereign status. Inroads to that status have begun with statements of international criminal responsibility for acts of state. As individual criminal responsibility expands, the autonomy of the nation-state will be reduced to the extent that it can no longer immunize its nationals for conduct that the international community proscribes. In return, the international community will almost certainly be alert to encroachments on state autonomy because all international actors are, to some extent, also nationals of a nation-state themselves. In this sphere, the pressures for nation-state autonomy are identical to the pressures for autonomy of the states in the U.S. federal system. To make matters worse, the United Nations Security Council was designated to “ensure prompt and effective action” with “primary responsibility for the maintenance of international peace and security.”27 In many 26 27

See 1 Leon Friedman, The Law of War 4–5 (1972); Ingrid Detter de Lupis, The Law of War 124–125 (1987). United Nations Charter, art. 24.

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i­nstances, the Security Council has called on member states to provide troops for “peace-keeping” missions, a rubric that has become almost a cruel farce. In the two most famous incidents, Dutch forces looked on helplessly while 8,000 male residents of Srebrenica were led to slaughter.28 At roughly the same time, Canadian forces looked on helplessly at the slaughter in Rwanda.29 Most recently, the un announced that it was withdrawing most of its forces from the failed peace-keeping effort in Darfur.30 Meanwhile, the Chief Prosecutor of the icc announced that she was withdrawing an indictment of ­ Sudanese leaders involved in the Darfur atrocities for the simple reason that no nation was able or willing to deliver the accuseds to The Hague.31

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A court in the Netherlands recently ruled that the Dutch government was responsible for 300 of the deaths, those who were in the “safe haven” compound, but was not responsible for the deaths of the more than 7,000 who fled into the nearby woods or who were exchanged for Dutch hostages. Dutch state liable over 300 Srebrenica deaths, bbc (July 16, 2014), http://www.bbc.com/news/world-europe-28313285. Rwanda Mandate, United Nations Assistance Mission For Rwanda (unamir), http://www .un.org/en/peacekeeping/missions/past/unamirM.htm (last visited Feb. 6, 2016): After renewed fighting in April 1994, the mandate of unamir was adjusted by Security Council resolution 912 (1994) of 21 April 1994, so that it could act as an intermediary between the warring Rwandese parties in an attempt to secure their agreement to a ceasefire; assist in the resumption of humanitarian relief operations to the extent feasible; and monitor developments in Rwanda, including the safety and security of civilians who sought refuge with unamir. After the situation in Rwanda deteriorated further, unamir’s mandate was expanded by Security Council resolution 918 (1994) of 17 May 1994, to enable it to contribute to the security and protection of refugees and civilians at risk, through means including the establishment and maintenance of secure humanitarian areas, and the provision of security for relief operations to the degree possible. Even at full strength, the mission has been criticized for failing to protect civilians in one of the world’s worst humanitarian crises. Since 2003, when an armed rebellion in Darfur was met with a brutal government crackdown, the conflict has claimed tens of thousands of lives, if not hundreds of thousands, and displaced more than two million people. But United Nations officials say that their forces are routinely attacked by Sudanese forces and their proxies, and that it is virtually impossible for their peacekeepers to remain in the country without Sudan’s blessing. Somini Sengupta & Jeffrey Gettleman, u.n. Set to Cut Force in Darfur as Fighting Rises, n.y. Times (Dec. 25, 2014), http://www. nytimes.com/2014/12/26/world/africa/united-nations-set-to-cut-force-in-darfur-asfighting-rises.html. Marlise Simons, Sudan: Prosecutor Halts Darfur Inquiry, n.y. Times (Dec. 12, 2014), http:// www.nytimes.com/2014/12/13/world/africa/sudan-prosecutor-halts-darfur-inquiry.html.

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When the Statute of the icc was being debated, arguments were made for the formation of an independent investigative arm of the Court, but those arguments were rejected as intrusions into the sovereign powers of the member nations. If the icc could not obtain independent investigative authority, it is even less likely is that there will be, in the foreseeable future, legal recognition of the rights of one state to investigate within the borders of another state. Thus, even under what is supposed to be an international criminality regime, the investigation, pursuit, and arrest of those who violate international law are likely to be contingent upon either the resident state’s consent, action of the un Security Council, or simple exertion of force by the investigating state. B Terrorism – Crime and Punishment Practically every nation now has various statutes attempting to criminalize “terrorism,” although nobody has yet come up with a consistent definition of the concept. The only definition in the dozen un conventions dealing with terrorism is in the Convention on Terrorist Financing: Any…act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.32 The Draft Comprehensive Convention on Terrorism carries this definition that has never been adopted: 1. Any person commits an offence within the meaning of the present Convention if that person, by any means, unlawfully and intentionally, causes: (a) Death or serious bodily injury to any person; or

32

The prosecutor of the International Criminal Court said Friday that she was suspending investigations in Darfur because no arrests had been made in a decade and the United Nations Security Council had been unwilling to use its powers to help. The prosecutor, Fatou Bensouda, said that given her limited resources and the lack of political will, she had no other choice, even as the decade-long violence in Darfur, in western Sudan, was worsening and government-run militias had stepped up attacks against civilians, especially women. International Convention for the Suppression of the Financing of Terrorism, art. 2(1)(b).

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(b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or to the environment; or (c) Damage to property, places, facilities or systems referred to in paragraph 1 (b) of the present article resulting or likely to result in major economic loss; when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act. In a bewildering excess of drafting, three similar but disparate definitions in the U.S. Code highlight the basic elements of an act of terrorism as (1) violence (2) against civilians (3) for a political purpose.33 It is not the least bit clear why political motivation has anything to do with the criminality of killing civilians. A mass murderer is a mass murderer regardless of motivation, be it hatred of “others,” protection of gang or drug turf, or any other motivation. These quibbles over the definition could be made irrelevant in light of the icc Rome Statute’s definition of crimes against humanity as triggered by a “widespread or systematic attack on any civilian population.” In this formulation, the international community could exercise all available cooperative resources against any group or individual who targets civilian violence, whether it be the Boko Haram, a “lone wolf” such as Major Hasan, or the Kouachi brothers and their loosely coordinated colleague Coulibaly. The definitional problem is of only minor concern to international cooperation, which should use ideology and motivations only for focusing the search for potentially violent persons, not as an element of chargeable crimes.34 If a person or team is bent on violence, then they should be treated as the ­criminals they are, even though most of them have no thought whatsoever of “compelling a government to do or to abstain from doing any act.” Regardless of these concerns, the fact remains that there is not a single provision that gives any police force and judicial tribunal the authority to reach into another nation to apprehend and prosecute criminal behavior by mass murderers.

33 34

See 22 u.s.c. § 2656f(d); 18 u.s.c. §§ 2331, 2332b. Wayne McCormack & Jeffrey Breinholt, Defining Terrorism: Perfection as Enemy of the Possible, Strategy Ctr.(Jan 17, 2007), http://www.strategycenter.net/research/pubID.141/ pub_detail.asp.

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This is a pathetic statement about the lack of globalized response to mass violence. C Torture – Punishing the Losers and Not Deterring the Strong The Convention Against Torture requires signatories to criminalize torture and also mandates that “Each State Party shall undertake to prevent in any ­territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.” The cat goes on to outline a number of steps that are required of signatory states, such as education of its law enforcement personnel and “redress and an enforceable right to fair and adequate compensation” for victims. The hallmark of the legislation is the requirement that “Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.” In a truly cynical snubbing of its nose at its obligations under the treaty, the United States has adopted a criminal statute, enforced it against the son of Liberian President Charles Taylor,35 and steadfastly refused to enforce it against its own government officials.36 With the release of a heavily redacted summary of a congressional inquiry into cia torture and “black sites,” there have been widespread calls for prosecution of U.S. officials, particularly former Vice-President Dick Cheney.37 Ironically, the European Court of Human Rights (ecthr) recently issued opinions applying sanctions against Poland and Macedonia for their complicity in U.S. crimes on the soil of those two nations.38 Meanwhile, cia Director John Brennan refused to describe some of the worst aspects of cia interrogation as torture, insisted that only a few rogue agents had “stepped over the line,” and refused to rule out the possibility of the use of such tactics in the future. Rather than firing him on the spot, President

35 36

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United States v. Belfast, 611 F3d 783 (11th Cir. 2010). Press Release, Department of Justice, Statement of Attorney General Eric Holder on Closure of Investigation into the Interrogation of Certain Detainees(Aug. 30, 2012), http:// www.justice.gov/opa/pr/statement-attorney-general-eric-holder-closure-investigation -interrogation-certain-detainees. All major newspapers (n.y. Times, Washington Post, u.k. Telegrapsh and Guardian) along with the un Special Rapporteur for Human Rights have called for prosecutions to no avail. El-Masri v. Republic of Macedonia, echr No. 39630/09, Grand Chamber Judgment (13 ­December 2012); Nashiri v. Poland (28761/11) & Husayn (Abu Zubaydah) v. Poland (7511/13), echr (July 24, 2014).

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Obama referred to Brennan as a “patriot.”39 The worst display of hubris in this episode predictably came from former Vice-President Cheney: “I think what needed to be done was done. I think we were perfectly justified in doing it. And I’d do it again in a minute.”40 Perhaps someday, somewhere, this blight on the face of American politics will be brought to accountability. But the fact remains that there now exists only the icc with its lack of investigative or enforcement power, which is hardly the nature of an independent judiciary. iii

Modern Threats

A Piracy – Shipping and Intellectual Property The era of Somali piracy appears to have reached an end. Certainly, the massive influx of military presence from a variety of shipping nations had an impact on what was once a massive problem. It is even possible that the success of the pirates, combined with the patrolling naval vessels of other nations, have scared away the illegal fishing marauders which threatened Somali livelihoods so that the fishermen can now return to their former way of life. Or it may be that the pirates will simply relocate to Kenya or North Korea or more remote places in the East Indies.41 Nevertheless, one point stands out most clearly. The pressure brought to bear by commercial shipping through the International Maritime Bureau and the International Chamber of Shipping had immediate and dramatic effect on the enforcement efforts of the world’s major naval powers. If the same level of enforcement cooperation were brought to bear on issues such as human trafficking, especially the sex trade, it would be interesting to see what effect the effort might have. With genuine pressure from the business communities, the world could become a much safer place for young girls and boys. A related field exists in the so-called “piracy” of intellectual property. ­Illegally produced movie and music dvd’s are perhaps not a matter of ­major 39

40 41

Mark Mazzetti & Matt Apuzzo, c.i.a. Director Defends Use of Interrogation Tactics, Avoiding Issue of Torture, n.y. Times, (Dec. 11, 2014), http://www.nytimes.com/2014/12/12/us/ politics/cia-director-brennan-torture-report.html. Eric Bradner, Cheney: ‘The report’s full of crap’, cnn (Dec. 11, 2014), http://www.cnn .com/2014/12/10/politics/dick-cheney-the-reports-full-of-crap. See Noah Rayman, Did 2013 Mark the End of Somali Piracy?, Time Mag.(Jan. 6, 2014), http:// world.time.com/2014/01/06/did-2013-mark-the-end-of-somali-piracy/.

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concern on the order of war crimes or terrorism, but they do constitute a threat to the globalization of economic development. The World Trade Organization (wto) fosters a system under the heading of Agreement on Trade-Related Aspects of Intellectual Property Rights (trips), which requires member states to respect patent rights created in other states.42 This system could prevent developing nations from producing generic forms of patented medications. Moreover, companies that might wish to engage in cross-subsidization by charging more in richer countries that in less wealthy countries could run afoul of the trips prohibition on “price ­discrimination.” To complicate matters even further, discriminatory pricing could open the patent holder to the risk that people from wealthy countries would simply obtain the drugs from the subsidized market and thus bypass the subsidization altogether. In response to world-wide concern, and with an eye to the pricing complications, the World Health Organization (who) is attempting to work with wto and the developed nations to make drugs available less expensively where they are most needed, while still protecting the research and development needs of the pharmaceutical companies. The trips and who efforts to deal with intellectual property and medications reveal that there may be areas in which a judicial response is not the most appropriate one. Here is an area that cries out for diplomatic and economic solutions, not for adjudication by an independent judiciary. B Corruption Public corruption is a threat both to the stability of governments as well as to the efficient operation of a globalized economy. Corruption may range from the overt bribery of officials to “cronyism,” making a precise definition of the concept impossible. Transparency International, the major ngo dealing with corruption, merely states that “Corruption is the abuse of entrusted power for private gain.”43 The United Nations Convention Against Corruption44 does not attempt a definition of corruption but relies on promotion of “proper management of

42 43 44

trips Material on the wto Website, World Trade Org., http://www.wto.org/english/ tratop_e/trips_e/trips_e.htm (last visited Feb. 6, 2016). What Is Transparency International?, Transparency Int’l., http://www.transparency.org/ whatwedo. https://www.unodc.org/unodc/en/treaties/CAC (last visited Feb. 6, 2016).

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public affairs and public property, integrity, transparency and accountability.” Briefly, it 1. specifies conditions for public contracting and procurement to prevent graft and “kickbacks” to public officials, 2. requires signatories to criminalize bribery and related offenses, and 3. requires signatories to cooperate in asset recovery – the practice of attempting to regain funds that were spirited out of a country by corrupt officials. Given the principles of the Lotus case, it would be difficult at best for Country A to “interfere in the internal affairs” of Country B by trying to punish the taking of bribes of officials in Country B. It would seem that official corruption is an area that cries out for international enforcement, for the simple reason that it harms all nations, but no nation is likely to have enforcement power within its own borders. Yet there is no apparent international will to create anything resembling a cooperative enforcement system in this area. C Cyber Attacks Among the modern generation, the digital age has meant the sharing of all information about themselves, including nude photos and what the teenagers call “sexting.” The loss of privacy in the modern era ranges from the amusing to the shocking, but we need to recognize that technology is rapidly outstripping our ability to remain private even without our own bedrooms. Less amusing by far is the potential for threats to infrastructure from countries or individuals bent on mischief. It is conceivable that increasingly sophisticated hackers could take down the entire infrastructure of another nation by disrupting its electrical grid, thereby destroying all its other systems. Even if the disruption were only temporary, the effects on such areas as water supplies and health care could be long-term. Attacks have already caused consternation in U.S. business and military facilities which have been apparently targeted by Asian countries, in particular North Korea and perhaps even China. It seems clear that a very serious 2007 attack on Estonia originated from Russia, whether governmental or otherwise.45 45

Ian Traynor, Russia accused of unleashing cyberwar to disable Estonia, The ­Guardian (May 16, 2007), http://www.theguardian.com/world/2007/may/17/topstories3.­russia; Scheherazade Rehman, Estonia’s Lessons in Cyberwarfare, U.S. News (Jan. 14, 2013), http://www.usnews.com/opinion/blogs/world-report/2013/01/14/estonia-shows-howto-build-a-defense-against-cyberwarfare.

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For its part, the U.S. created Stuxnet, which effectively changed the landscape of cyber warfare.46 This diabolical software infiltrated the nuclear centrifuge systems of Iran and caused many of them to self-destruct. The software had the additional capability to repeatedly replicate itself and spread outward, but indications suggest that it was controlled before disaster could strike. The Council of Europe (eu) has promulgated a “Convention on Cybercrime”47 that commits signatory nations to criminalizing various acts of computer misuse and to extraditing or prosecuting offenders. In addition to fraud, copyright violations, and child pornography, the Convention defines a number of crimes involving attacks on computer systems. The cyber or digital field is one in which there are hardly any cleanly defined norms, let alone any enforcement system worthy of the name. iv

Sovereignty and the Judiciary

A Culture and Universal Personhood International substantive norms exist in many areas, including those touched upon in this brief review – atrocities, human trafficking, and modernized threats to dignity. More recently, the world has begun to recognize universal norms of personhood. What the world is lacking is a link from the substantive norms defined under international law and enforcement mechanisms – the latter necessarily implicating judicial independence. International enforcement is lacking in these areas because the world still clings to the notion of national sovereignty. How can a “people” entitled to “self-determination” be expected to yield power to a body composed by forces external to itself? The answer to that conundrum obviously is that when a norm becomes universally recognized, the relevant “people” extend beyond the borders of the nation-state. “We the People of the World” should be free to impose human rights obligations on every nation when we feel strongly enough about a given issue. There certainly is room for some cultural relativism in the ­increasingly globalized community. After all, what a boring place the world would be without Tchaikovsky, the Rolling Stones, and the many forms of music that have grown from African and Asian roots. There is clearly room for different 46 47

Stuxnet: Computer Worm Opens New Era of Warfare, cbs News (June 4, 2012), http://www .cbsnews.com/news/stuxnet-computer-worm-opens-new-era-of-warfare-04-06-2012/. Details of Treaty No. 185, Council of Eur., http://www.conventions.coe.int/Treaty/en/­ Treaties/Html/185.htm (last visited Feb. 6, 2016).

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forms of g­ overnance, ranging from the most primitive tribal systems of seniority, through power-based oligarchies, to complex forms of parliamentary democracies. Because there are different systems of governance, there is room in those systems for different forms of the Rule of Law. Obviously, not every dispute resolution will be the same. Tribal and village elders can deploy extremely effective informal dispute resolution. Both elected and appointed judiciaries can function under administrative systems within the executive or legislative branches, although some degree of administrative independence is highly desirable. Any dispute resolution system can adhere to the Rule of Law so long as it meets the basic requirements of transparency and universality (some people add elements of fairness and consistency, but I think the twin elements of transparency and universality are broad enough to include those). There is no room, however, for cultural relativism where basic fundamental rights of personhood are concerned. The Universal Declaration of H ­ uman Rights may have stemmed from Western liberal thought processes, but it ­includes universal norms that reach beyond the traditional rights of Western nations, such as rights of social and economic subsistence. I prefer to think in terms of universal norms of human dignity. For example, with regard to violence against civilians and the commodification of human beings, especially the most vulnerable of the world, there should be little doubt of the universal norms in play. There is no principle of cultural relativism that can justify either of those behaviors. There is no justification for an informal dispute resolution system in which the village elders award the 9-year-old daughter of one family to be the concubine of another man in the village. Universal principles of human dignity make it easy enough to define behaviors as illegal. What is much more difficult is finding the means and resources to deploy enforcement mechanisms. We may not see an effective international police force within my lifetime, but surely the increasing pressure for international cooperation in these arenas must ultimately lead to an effective law enforcement response. Thus runs the need for links from (1) substantive norms of criminal behavior, to (2) supra-state enforcement, to (3) a vibrant and independent international judiciary. B Judicial Authority My main point is that international norms are not enforceable except through whatever political process happens to take an interest. The most cynical view of this, of course, is the common complaint that international law is not law but just punishments imposed by the powerful against the weak. I can

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­acknowledge that view, but in fact many countries are trying to enforce international norms without much clout. In the context of judicial independence, I would urge that a judicial entity is not really a court if it has no enforcement backup. For example, the icc just dropped prosecution against Sudanese officials because nobody could take them into custody. More common problems include the inability of one country to obtain and exercise power over sex traffickers, labor abusers, and corrupt officials in other countries. The effect is to emasculate the domestic courts which are given rules but no ability to do anything with them. In Federalist #78, Hamilton wrote: Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. But the question I’m raising here is, “What is a court?” Is it a genuine court if nobody brings it cases or enforces its judgments? Or maybe the issue is really, “What is law?” Lon Fuller listed eight ways that law could fail (in my paraphrasing):48 1. 2. 3. 4. 5. 6. 7. 8.

inconsistency lack of communication to the public lack of clarity retrospective application contradictory demands impossibility of compliance instability (frequent changes) “failure of congruence between the rules as announced and their actual administration”

48

Lon Fuller, The Morality of Law 34 (1969).

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Some of these “routes to failure” overlap to the degree that they could be summarized in just four requirements: law must be uniform, accessible, clear, and uniformly enforced.49 My emphasis here is that law is ineffective if not uniformly enforced. Indeed, an ineffective legal system means a loss of judicial independence. For example, the Soviet Union had a very detailed list of human rights that was rendered meaningless because the courts simply followed the dictates of the political apparatchiks. Lord Bingham opined, “That all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.”50 It seems as if the demise of the Cold War opened the door to an early optimistic view of the role of the judge in building a new Rule of Law in the world: “Judges are building a global community of law. They share values and interests based on their belief in the law as distinct but not divorced from politics and their view of themselves as professionals who must be insulated from direct political influence. At its best, this global community reminds each participant that his or her professional performance is being monitored and supported by a larger audience.”51 But as time has gone on, pessimism regarding efforts to instill the Rule of Law has set in. “If democracies do not more effectively contain crime and corruption, generate economic growth, relieve economic inequality, and secure freedom and the rule of law, people will eventually lose faith and turn to authoritarian alternatives.”52 The most pessimistic view is that the “rule of law is unattainable” for the simple reason that “[p]eople do not always follow rules.”53 In that latter sense, it is certainly true that perfect compliance with law is impossible. If we lived in a utopian world, then there would be no need for government enforcement, no need for police forces, and no need for courts. 49

50 51 52 53

The law “must be fixed and publicly known in advance of application, so that those a­ pplying the law, as much as those to whom it is applied, can be bound by it.” Richard H. Fallon, Jr., “The Rule of Law” as a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1, 3 (1997). See also What is the Rule of Law?, World Just.Project, http://worldjusticeproject .org/what-rule-law (last visited Feb. 6, 2016). Tom Bingham, The Rule of Law 8 (2010). Anne-Marie Slaughter, The Real New World Order, 76 Foreign Aff.183, 186 (1997). Larry Diamond, The Democratic Rollback: The Resurgence of the Predatory State, 87 Foreign Aff. 36, 37 (2008). Timothy A. Endicott, The Impossibility of the Rule of Law, 19 Oxford J. of Legal Stud.1(1999).

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But the whole point of government is to force compliance or punish those who do not comply. Government has a monopoly on the legitimate use of force for the very reason that not all people will avoid harming others in the absence of a dominant force. In fact, no matter how hard we try, there will always be lawbreakers – at least, in the absence of a totalitarian regime usually known as a “police state,” which itself is the antithesis of a society governed by the Rule of Law. In all of these various approaches to the Rule of Law, it is implicit that the decisions of the courts must be enforced by the executive to whom is entrusted the power of the State.

chapter 12

Conflict of Interests as an Exclusionary Factor in the Judicial Nomination Process Sergey Nikitin A conflict of interest is a well-known factor which may mandate the exclusion of a judge from participating in a particular case. According to the law of the Russian Federation, “On Status of Judges,” in the event of a conflict of interest, the judge overseeing the proceedings must resign or inform the trial participants of the conflict situation.1 The law defines a conflict of interest as a situation in which the judge’s personal interest runs contrary to the legal interests of the trial participants. Furthermore, the conflict has the potential to prevent the judge from properly executing his duties. In this paper, the ‘personal interest’ of a judge is understood as the possibility of a judge’s receiving, during the discharge of his duty, an income in the form of a material benefit or other improper advantage for him/herself, members of his/her family, or for other persons and organizations related with the judge. In this case, conflicts of interest are considered in the context of a circumstance which excludes a judge from participating in a particular trial. At the same time, even during the judicial selection process, factors which can prevent the appointment of a candidate can be detected exactly because of the potential conflict of interest. In the event that such a candidate is appointed, the probability that a conflict of interest will occur is very high, or may even become inevitable. It is worth mentioning that at the present time, Russian laws regulating the selection of judicial candidates do not set out explicit restrictions on the ability of judges to accept an appointment when a conflict of interest exists. Only Article 5 of the Law “On the Status of Judges” contains such a restriction. It mandates that a person cannot be a candidate for a judicial seat if he/she is a relative to a chairman or deputy chairman of the same court.2 Meanwhile, the qualification collegium of judges, which selects judicial candidates, sometimes faces situations which can be classified as a conflict of interest. 1 On Status of Judges of the Russian Federation, The Law of the Russian Federation, art. 3. 2 Id., art. 5.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_013

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For example, a relative of the judicial candidate serves as a judge, chairman, or deputy chairman of a court above or below her. The conflict of interest exists because the judicial candidate’s future holdings will be subject to procedural control from her relative. Because of this potential outcome, a qualification collegium of judges disqualified a judicial candidate for the oblast (regional) court because his daughter had served as a magistrate judge in the same oblast. The collegium decided that a conflict of interest was probable because judicial acts of the magistrate judge were subject to cassation control from the oblast court. Meanwhile, in a similar situation, another qualification collegium decided to recommend a judge for a regional post, despite the fact that his brother-inlaw served as a higher judge in the same region. The collegium did not recognize a conflict of interest because the candidate would have exclusively handled civil cases while his relative was a judge in the criminal courts. Consider a second situation, in which close relatives of a judicial candidate serve as advocates in the same district. A qualification collegium of judges disqualified a candidate for the position of deputy chairman of the arbitrazh court because his spouse served as an advocate in the same district. The same collegium, however, recommended for a similar post a candidate whose daughter had been a non-practicing attorney in the same district, seeing no potential conflict of interest. Finally, instances appear where a judicial candidate’s close relatives are managers in law firms, investigators, serve at the prosecutor’s office, or occupy positions in other law enforcement agencies. As a result, the candidate’s relatives frequently take part in proceedings before the court. This situation can cause a conflict of interest for the judge. Consequently, the qualification collegiums often disqualify candidates whose relatives work in the previously mentioned organizations. As we can observe through the decisions of the qualification collegiums, there is not a uniform approach to assessing conflicts of interest. Some patterns, however, may be noted. The collegiums vet candidates who have relatives in the legal field with more caution. Recently, a number of candidates failed to receive recommendations from the collegiums because their relatives were judges, or had positions in the legal field. Some of the relatives had to resign quickly from their judicial posts, or had to cease practicing law in order to avoid a potential conflict of interest. These instances have given rise to discussion about banning relatives of judicial candidates from entering the legal profession. In light of the aforementioned examples, it seems necessary to employ more clear and definite legislative regulation of when a candidate’s relationship to

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practicing lawyers should be considered a conflict of interest. In addition, it is necessary to implement restrictions on when candidates who have practicing relatives can be considered.3 Conversely, legislation concerning the potential disqualification of ­judicial candidates could be extended to restrict the relatives of candidates from ­accepting positions as judges. The law should explicitly define which posts cannot be taken by relatives, and define the degree of relationships which fall under this rule. From my perspective, the legislator implementing such a restriction should assume the following common rule: The candidate should be banned if the above relationship can be fairly assessed as a conflict of interest which prevents the proper dispensation of judicial duties. This rule should include reasonable concerns for the judge’s objectivity, fairness, and impartiality. Defining judicial conflicts of interest by legislation should increase the level of legal certainty when establishing whether a conflict of interest is present, and contribute to the more objective selection of judicial candidates.

3 M. Gareev,No Relationships in the Court, 26 EZh-Yurist6 (2012).

chapter 13

Attaining Justice for Foreign Parties in Domestic Courts Fryderyk Zoll i

Introduction

The Themis has covered eyes. The fact that the person appearing in the courtroom is “different” and distinguishes her or himself from the judges and lawyers should not play a role in the way that justice operates. The nationality, ethnicity, and features usually attributed to race, should not influence the judge’s attitude towards the person in front of the court. Sometimes, it is necessary to provide additional support in order to facilitate the participation of such persons in the legal process, mostly due to their inability to speak the language in which the procedure is conducted. All over the world, we are experiencing a societal lack of tolerance towards those who are different from the dominant mainstream culture. From a purely anthropological perspective, a fear of strangers is an archaic defence mechanism.1 On a theoretical level, modern societies tend to treat the discrimination against “others” as malicious and reprehensible. In practice, however, there are many different biases against people who come from a different culture. These biases may influence not only judges but the entire apparatus of the justice system. The world we live in today is a turbulent one. We are experiencing new waves of immigration as people are chased from their homes by famine, ­poverty, wars, and discrimination.2 As a result, the world is rapidly becoming less s­table. In particular, multicultural societies face numerous challenges. ­Societies which have, in the past, presented themselves as liberal and open to diversity, have e­ xhibited progressively more hostility towards the inhabitants of other cultures. We have also seen an increase in the influence and power of populist political movements. The rise of these movements is facilitated by appealing to the local population’s fears of alien peoples. The main question that this paper 1 Flohr, Unsere biokulturelle Natur, Menschliches Handeln und Sozialstruktur Leonard Lowinski 60 (1986). 2 Santel, Migration in und nach Europa (1995).

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wishes to investigate is whether all these obscure developments also affect the judiciary. The members of the judiciary are almost invariably highly educated. This does not, however, immunize them from the widely spread misapprehensions and superstitions of the society in which they live. It should therefore be questioned whether the foreigner or alien may be treated differently by the judge, solely due to his or her country of origin. The discriminatory treatment of aliens is manifested in numerous ways. It happens, however, rather exceptionally at the level of procedural law. For example, requirements for the prepayment of procedural costs, which can apply in some exceptional cases, may effectively bar the alien from recourse to the legal system. The system may also work in a protective fashion, by developing more convenient rules for foreigners, for instance, by providing to them translation services or by granting extensions of certain procedural deadlines. It is important to explore whether legal systems develop different procedural rules for aliens than are applicable to native citizens. The most important point of this intellectual effort and study is to determine whether the mere fact that the person appearing before the court is a foreigner has the ability to influence the behaviour of the judge, his or her way of interpreting the law, and the manner in which the case is finally decided. It is, however, quite difficult to develop a methodology for allowing us to see behind the curtain of formal legal reasoning. Biases may be discovered in several different legal realms, but the most apparent and suspect areas are those in which the process of legal reasoning could potentially be affected by the judge’s particular preconceptions, which are often areas where the judge has the most space for subjective assessments of facts and/or law. The evidence procedure and the application of general clauses are areas of the law where the judge may be more easily influenced by a societal-wide bias against aliens. In addition to exploring how foreigners are discriminated against in the courts, the study is also intended to determine how ethnic minorities are treated in the courtroom. Whether judges are immune to a culturally indoctrinated hostility against ethnic minorities is a matter of judicial independence. It is important to investigate how different legal schemes and procedures are most susceptible to discriminatory decision making processes. Are there special areas of laws and particular kinds of the procedures where judges make their decision under the influence of national or racial considerations? And naturally, the next query must be whether those considerations may somehow be legitimate? I would like to consider a few specifically problematic fields. They include the organization of legal procedures, the appointment of judges, and the structure of legal procedures. Next, I would like to look at the areas of law that are particularly prone to the influence of discrimination.

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The problem of whether there exists widespread discrimination against foreigners in the court system concerns not only the direct participation of the foreigner in the given procedure, but rather all procedures which may directly or indirectly influence the interests of aliens or minorities. ii

Appointment of Judges

Judges function as a reflection of the society in which they preside. It is always a challenge to design a system of appointment which would ensure accountability, but would also guarantee judicial independence. One may imagine that the most acute danger may arise if judges are elected through the process of a popular vote. In order to secure the vote, a judge may be less able to act independently and remain immune to certain beliefs held by their constituents about nationality and race. It would be interesting to see whether those countries who select their judges in this manner take any additional security measures to ensure impartiality. Other systems of judicial appointments must also be examined from this perspective. Certain forms of participation by other political branches in the judicial appointment process, including the promotion of the judges, help to create accountability for the judicial body. It also has the potential to exert an undue influence on the judges. iii

Non-professional Judges

Non-professional judges also fall within the scope of this inquiry. This category could encompass the jury in the common law tradition or several criminal procedures of the continental legal systems, or the non-professional judges who participate in many different procedures in various jurisdictions. These nonprofessional judges may, however, make judgments based on the superstitions and fears shared by their society. This risk is especially salient in societies that are divided by conflicts with racial or religious origins. iv

Particular Areas of the Law

Instances of the discriminatory treatment of foreigners or minorities in the court system happen more commonly in countries where societies have experienced deep conflicts motivated by a perception of ethnical, national and religious differences. Naturally, judges belonging to one of the groups in conflict

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may have difficulty overcoming his or her affiliation and maintaining his or her impartiality. It is also a question of how far the rule of law in the given country protects groups who are not accepted by the dominant societal group. In the midst of deep-seeded conflicts, discriminatory practices in the courts may occur independently of the law in various types of procedures, even if certain kinds of disputes are more susceptible to discriminatory practices than others. In societies without open ethnic conflicts, the risk of open discrimination in the courts becomes less evident. This often results from the fact that judges in such societies generally have less occasion to decide cases with visible participation of those from groups other than the majority population. It is interesting to observe whether judges in these societies are sufficiently immune to ethical biases. In particular, there are several kinds of procedures where such a risk of judicial bias may exist. Judicial biases are perhaps most apparent when the legal dispute in question is particularly emotional, as often happens in criminal and family law. In addition, legal disputes over land ownership may become emotionally charged, most notably when there has been a political transformation of property relationships which have been imposed with a clear ethnical bias. Criminal law is an ideal space in which to explore judicial biases. It is often true that groups which have difficulties assimilating or integrating into the mainstream culture are overrepresented in crime statistics. This phenomenon may cause a judge to associate a certain race or ethnicity with a tendency towards criminal behaviour. The fact that the defendant belongs to a minority group may affect the judicial decision making process. On one hand, it may sharpen the “convincing power” of the evidence against the minority defendant. On the other, however, the judge who does not want to be accused of being influenced by discriminatory motives may be especially reluctant to accept evidence weighing in favor of the defendant’s guilt. In family law,3 the intensity of the emotions involved in many procedures may also influence the decision making process, even more so than in criminal law. This area of the law also gives judges more room to impose their beliefs on the proceedings, as the procedure in family law courts is often less strict and rigid. An area of family law in which judges are continuously confronted with ethnically and nationally diverse parties is the application of the Hague convention to the civil side of kidnapping.4 In these cases, the national court tends to protect defendants, more than is justified by the applicable facts and law. This occurs when the judge is able to better relate to the defendant than the 3 Hirsch, Das Haager Übereinkommen von 2007, Europäisches Unterhaltsrecht (2010) p. 19–20. 4 ifr, Nademleinsky/Neumayr, ifr, Rz. 09.01 ff.

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plaintiff because the defendant is a citizen of the court’s jurisdiction. When this happens, the judge will often agree with the defendant’s wish to keep the child in the country. Also, in other family cases, this same elevation of citizens’ rights and desires over those of foreign parties can be seen in decisions respecting the exercise of various parental rights. Discrimination which occurs during property law disputes is somewhat different from that observed in family and criminal courts. Here, the judge may believe that they have been called upon to protect the existing stability of the proprietary relationships against the hard letter of the law. In such cases, the judge ruling in favour of the foreigner may be subjected to powerful societal pressures. Judges may also have difficulties maintaining judicial independence when determining what rights minority groups are entitled to. Occasionally, judges may find it difficult to rule against the majority stance on aliens or racial minorities, and to effectively endorse a less popular position in favour of minority rights. In such cases, it may be daunting to attempt to replace certain political decisions, which may be contrary to the letter and the spirit of the law, with a judicial decision. Judges are often unable to complete this task. v

Methodology

In the frame of the discussion of this issue, we may decide that the questions posited here are worthy of more extensive research and thought. It is extremely difficult, however, to investigate the actual judicial decision making process. Usually, the ethnical and national reasons for a decision are not revealed by the judge. It therefore becomes necessary to very carefully examine case law, with the goal of gaining deeper insights into court’s reasoning. We also have to consider whether it is even possible to identify discriminatory judicial practices. Despite these difficulties, the problem addressed here cannot be ignored if we are concerned with the idea of judicial independence. In order for impartiality to be achieved, judicial decisions cannot be driven by prejudice and superstition, despite the cultural prevalence of these biases. Even after their appointment, judges remain members of their community, and as such, they may never be completely free of the biases of their society. But a judge can still act independently, if he or she makes the conscious decision to remain unaffected by discriminatory motives.

chapter 14

The Role of the Legal Profession in Protecting Judicial Independence Jennifer Temkin Judicial independence is under frequent threat in regimes of many different hues throughout the world, which makes the obligation to safeguard it as onerous as it is sacrosanct. In this short essay, an attempt will be made to set out some thoughts and to argue in broad terms that the legal profession has an important role in protecting that independence. It will discuss why judicial independence matters for lawyers, the role they have as a collective and as individuals in protecting it and the different ways support for the judiciary can be expressed. It will argue that this protective obligation extends internationally and falls just as much upon academic lawyers as it does on those in practice. Background The essay proceeds on the basis that the rule of law requires both a fearless and independent judiciary and a fearless and independent legal profession. Unlike love and marriage, it is arguably possible to have an independent profession in situations where the judiciary is subservient to the State or other interests. On the other hand, whilst theoretically possible, it is less likely that an independent judiciary can exist alongside a legal profession that is not independent. It is noteworthy that, for example, Article 6 of the European Convention on Human Rights, which provides for the right to a fair trial clearly demands that both should be independent (see e.g. Ann Power, “Judicial Independence and the Democratic Process: Some Case Law of the European Court of Human Rights”, International Bar Association Conference, 2012). What, though, is meant by independence in this context? Judges may be said to act independently when they arrive at decisions great and small on the basis of the facts and arguments with which they are presented in the case in question. These decisions must be free from external influence whether wielded by government or by corrupt forces. However, it is suggested that judges may forfeit their independence where there is no pressure of any kind, if they habitually render decisions congenial to the government because of their

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mindset and inherent partiality. Either way, judicial independence and justice are corroded.

Relevance of Judicial Independence to the Legal Profession

The first question is whether an independent legal profession, or any part of it (if, for example, it is divided, as in the uk), should be concerned about judicial independence and, if so, why? The answer to that is simple. It is yes, and for obvious reasons. For what would be the point of a fearless and independent profession if its services were to be neutralised or negatived by a judiciary, obedient to other interests, which will not respond to the merits of the case developed by counsel but will decide cases on extraneous grounds? Not only will the lawyers’ work be rendered futile in certain sensitive cases, but in those sorts of cases there will be no point in resorting to lawyers at all: whole areas of practice would thus die or never develop. In Britain, for example, there would be no Public Law Bar because there would be no scope for lawyers to practise in the area of judicial review under which public bodies, ministers and officials are held to account. The rule of law would be severely diminished. Lawyers also, it may be argued, have (or should have) an ethical commitment to the rule of law and the proper administration of justice regardless of professional self-interest and the interests of their clients. To that end, they should be concerned to ensure that the judiciary is competent, of the highest quality and above all independent. How, then, can the profession protect or promote judicial independence? It is necessary to look separately at the role of the individual lawyer and that of the lawyers’ professional body – Bar Association or equivalent.

Protecting Judicial Independence i: Individual Lawyers

An ethical responsibility falls on any practising lawyer to act in the best interests of the administration of justice and the rule of law as well as championing the interests of the client. This may sometimes call for the display of courage and resilience in the face of pressure from a judge or court seeking to curtail the lawyer’s proper freedom of action. It may be argued that the lawyer’s obligation reflects counsel’s duty to request that a conflicted or biased judge should recuse her/himself. That is rarely an easy task to perform. A memorable instance in England was the unsuccessful application requesting Peter Smith J., who was hopelessly

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conflicted, to recuse himself. The judgment of the Court of Appeal reveals counsel’s commendable strength, moderation, tenacity and resilience in the face of the judge’s appalling behaviour (Howell et al. v. Millais et al. [2007] ewca Civ 720). The Court ruled that the judge should have recused himself as the test of bias was made out. The lawyer’s efforts in the courtroom must be complemented and reinforced by open court proceedings and published judgments which are fully reasoned, both of which will expose to public scrutiny any failings of independence by the judiciary. But, in England and Wales, there has been a recent development which might well be viewed as a threat to the role which the legal profession has in safeguarding judicial independence. A scheme has been proposed, the Quality Assurance Scheme for Advocates, which would require Crown Court judges to act as formal assessors of barristers’ performance in court in criminal trials. There is clearly an argument that the scheme carries with it, inter alia, the risk that barristers would refrain from challenging judges for fear of receiving a poor assessment, the implications of which, for a practising barrister, are plainly serious. The Criminal Bar Association (cba), acting through several of its members, sought judicial review of the proposed scheme. It argued that a judge who made adverse comments on an advocate would not enjoy immunity from suit and that private communications between the judge and one party which the scheme would necessitate are inimical to the administration of justice. However, the Court of Appeal has, amid controversy, rejected these and the many other arguments put forward by the cba and the scheme has been upheld (Lumsdon et al. v Legal Services Board et al. [2014] ewca Civ 1276).

Protecting Judicial Independence ii: Lawyers Collectively

(a) Supporting Fellow Lawyers In standing firm and risking sanctions, the lawyer (however strong-willed and indomitable) must be confident that the backing and support of colleagues will be forthcoming both as individuals but more importantly in the Bar Association. The lawyer must not be left to stand alone. The Association must always be ready to offer its public support and take whatever steps are necessary to vindicate the commitment to the rule of law. This may take the form of public statements, formal complaints, letters to the Chief Justice or Ministers, lobbying the legislature and utilising the media. It could conceivably involve organising the Bar to refuse to conduct litigation before a particular judge or court. It may require the deployment of resources to defend the lawyer when

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facing disciplinary/disbarment proceedings, particularly if the disciplinary authority is the judiciary. (b) Supporting Individual Judges The Bar also has a role in coming to the aid of any judge who comes under improper pressure from the Government or even from colleagues to reach decisions favourable and acceptable to the Government. That pressure may sometimes take the form of threats to their jobs, fines and attempts to impeach (see the case of Judge Claudio Bonadio who is investigating alleged financial misdeeds by President Kirchner of Argentina, The Times (London), December 14) or worse, as has been seen in recent years in, for example, Pakistan (see Jurist, October5, 2010: http://jurist.org/paperchase/2010/10/pakistan-judges -resign-in-protest-over-treatment-by-lawyers.php.accessed 12.12.14). Just as an individual lawyer should know that fearless independence will attract the support of colleagues collectively, so any judge in conflict with the State should know that reliance can be placed on support from the Bar. It may not necessarily be effective – even the most senior judges can be driven from office by a despotic regime – but lawyers must stand shoulder-to-shoulder with their judicial brothers and sisters in defence of an independent judiciary and the rule of law. Individual judges, even in countries with developed legal systems and entrenched arrangements for judicial independence, too often face severe criticism from the media and politicians for discharging their duties correctly and independently. This has frequently been seen in Britain in recent years, particularly when applying human rights legislation (as prescribed by Parliament) and in judicial review of government action. Severe, and often seriously misinformed, criticisms by senior government ministers are not unknown. One device for controlling this in the past was the constitutionally anomalous office of Lord Chancellor, at once a Cabinet Minister and head of the judiciary, but the nature of the post has, regrettably, changed. The Lord Chancellor now sits in the House of Commons and not the House of Lords and is also Secretary of State for Justice, no longer heading the judiciary and not needing even to be a lawyer, let alone a senior and distinguished legal practitioner as hitherto. Although by statute (Constitutional Reform Act 2005, s.3 (6)), the Lord Chancellor continues to have the duty of defending the independence of the judiciary, this is largely rhetorical or symbolic as the post no longer carries with it the authority, stature or background to restrain or censure ministerial colleagues as used to be the case (though how effective this was may be open to question). Another area with potential for difficulty is sentencing. Politicians cannot always resist the temptation to criticise a sentence they think is too lenient and

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may use that instance to urge the judiciary to impose heavier sentences for that category of offence. In England the Attorney-General, who is a Minister of the Crown, may by statute refer an “unduly lenient” sentence for specified crimes to the Court of Appeal which not infrequently will increase the sentence. However, the Attorney-General has an obligation to act in a disinterested fashion in the public interest and not on behalf of the Government or as a politician. In the face of media campaigns which unfairly target judges, it is important that members of the legal profession – and not least in this respect those from the academy – step forward to defend, explain and support judicial decisions, since neither the judges in question nor their judicial colleagues are able to join the debate or defend themselves. The reason why such supportive action is necessary is twofold. First, so that the public can appreciate what the judge has done and why, in order to vindicate the judicial process and maintain public confidence in it; and secondly, so that the incessant attacks in which they are vilified by politicians and cannot respond do not over time erode that confidence and resilience without which independence will not survive. It is also of the first importance to make judicial careers attractive to those of high ability and it is inimical to the public interest if potential recruits are deterred because of the environment in which they will work. (c) Supporting Independence Generally In addition to responding to particular situations or incidents involving an individual lawyer, the Bar (used here in the American sense of the profession as a whole) must take a continuing and holistic interest in the health of the justice system, notably in relation to judicial independence. It must speak out whenever this value is threatened or undermined. It must not be slow to identify and criticise any judge whose conduct exhibits a failure to respect independence. This must also extend to legislation or proposed legislation which erodes judicial independence or curtails the proper scope of the judicial role in litigation. Bar Associations should have standing arrangements to keep judicial independence under constant review and to scrutinise any developments that might be a threat to that independence. It is suggested that Bar Associations should wherever possible have some role in the appointment and promotion of judges; and even if they do not, should (as the American Bar Association does in relation to senior federal appointments) rate potential candidates for judicial office on whether they are “qualified” for appointment. This is unnecessary if there are legitimate, independent statutory arrangements for the appointment of judges, as there are in England and Wales under the Constitutional Reform Act 2005 with the establishment of the Judicial Appointments Commission, but representatives of the profession should be involved in those procedures.

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(d) Supporting Judicial Independence Internationally It is suggested that it is not only in relation to their own jurisdictions that lawyers should speak out. Attacks on judicial independence overseas should be condemned, particularly when they arise in those countries in which freedom of expression internally is rigorously controlled.

Protecting Judicial Independence iii: Academic Lawyers

What has been said about individual lawyers and Bar Associations applies also to legal scholars, who should be seen as a branch or part of the legal profession, and specialist or representative groups of legal scholars. Legal academics are often particularly well-placed to observe these developments from a wholly disinterested position, cannot be accused of self-interest and often are less vulnerable to repercussions for speaking out. Conclusions Any analysis of the mechanisms designed to strengthen and secure judicial independence must include the role of the legal profession. In all countries judicial independence should feature prominently in judicial training as well as in professional legal education and continuing professional development. The very existence of a constantly critical and vigilant legal profession will itself conduce to high judicial standards and encourage judges to act in accordance with the values of independence and integrity.

chapter 15

Relations Between Top Courts and Supra-National Courts Shimon Shetreet The issue of the relations between national top courts, international, and supranational courts has been the center of controversy for a long time. It has been specifically debated and discussed in public discourse.1 It has also been reflected in decisions from the top national courts, such as in the decisions regarding the European Arrest Warrant2 in Germany, Poland, and the Czech Republic,3 and inthe decisions regarding control orders in the United 1 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/paper chase/2011/10/uk-top-judge-national-courts-not-bound-by-europe-rights-court.php, stating 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 control u.k. Courts as long as the Human Rights Act 1998 remains in effect. Id. 2 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 implemented in another member state. This means in practical terms that extradition procedures are unnecessary. The issue arose regarding the application of this mechanism to persons who are citizens of their own state. 3 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, Eur. Const. L. Rev. 209 (2006); S. Molders, Case note, The European Arrest Warrant in the German Federal Constitutional Court, Ger. L. J.45 (2006); N. Nohlen, Germany: The European Arrest Warrant case, 6 Int’l. J. of Const. L. 153 (2008). The Polish Constitutional Tribunal also declared unconstitutional the Polish ewa legislation. Polish Constitutional Tribunal, European Arrest Warrant No. 1/05 (Apr. 27 2005). See 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 Eur. L. 65, 81 (2010). The Czech Constitutional Court declared constitutional the Czech legislation to implement the eaw. Policinno, id., at 82. For other cases see the decisions of the Hungarian Constitutional Court invalidating 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. © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_016

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­Kingdom.4 Debate over how to best resolve this issue remains, and there are vast differences in opinion about 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 the legal systems of member states.5 The debate is conducted from both the viewpoint of national legal systems, as well as from the opposing viewpoint of the judicial policy of the international tribunal such as the ECtHR. Lord Hoffman of the United Kingdom Supreme Court has been critical of the ECtHR, and has expressed the view that its power to interfere in a detailed manner in domestic law should be pointedly limited.6 4 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] echr 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. 5 For a detailed analysis, see Y. Shany, The Competing Jurisdictions of International Courts and Tribunals (2003); Y. Shany, Regulating Jurisdictional Relations between National and International Courts (2007); Courts Crossing Borders: Blurring the Lines of Sovereignty, (M.L. Volcansek, J.F. Stack, eds., 2005): The European Court and National Courts – Doctrine and Jurisprudence: Legal Change in Its Social Context, (J.H.H. Weiler, A.M. Slaughter, A. Stone Sweet, eds., 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 Eur. L. 65–111 (2010). W. Sadurski, Accession’s Democracy Dividend: The Impact of the eu Enlargement Upon Democracy in the New Member States of Central and Eastern Europe, Eur. L. J. 371(2004); J.H.H. Weiler, The Community System: The Dual Character of Supranationalism, Yearbook of Eur. L. 267 (1992); H. Rasmussen, Present and Future Judicial Problems After Enlargements and the post-2004 Ideological Revolt, Common Market L. Rev. 1661 (2007). 6 Lord Hoffmann, The Universality of Human Rights, Judicial Studies Board Annual Lecture, 2009 available at www.judiciary.gov.uk [19 March 2009 speeches]. For similar c­ riticism 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

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The debate primarily takes place in the older member states of the European Union and the echr such as the United Kingdom, Belgium, and Germany. However, it is also conducted in the newer member states which joined the eu after the Enlargement following the fall of the Soviet Union. In many of these countries, there has been resentment towards requirements which are considered overly demanding and as unduly interfering in national sovereignty.7 The issue has been a problematic one and reflects the potential conflict between pan-Europeanism’s need for the supremacy of European Law and national sovereignty’s adherence to domestic law. The formulation that was adopted by Article 1.3 of the Mt. Scopus International Standards of Judicial Independence, 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 dialogue and respect, not on conflict and confrontation. 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 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 treaties such as the echr and 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 domestic legal systems of all member states, and the international courts like the ECtHR in Strasburg, whose rulings are not directly enforceable and need the acceptance of member states in order to be implemented in domestic legal systems.8 to note also the criticism of the ECtHR by judgeAnatoly 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. 7 Policinno, supra note 28, at p. 69. 8 See for example the controversy over the rejection by the uk of the decision of the ECtHR to accord rights to vote to prisoners. Andrea Bottorff, uk top judge: national courts not bound by Europe rights court, Jurist (Oct. 20, 2011), http://jurist.org/paperchase/2011/10/ uk-top-judge-national-courts-not-bound-by-europe-rights-court.php.

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Article 1.3 is based on the idea that there should be a duty [what kind of duty?] of all courts and tribunals acting in the international level whether they are defined as an ‘international’ tribunal or as a ‘supranational’ tribunal. This approach of constitutional pluralism assumes that there could be more than one legitimate interpretation, and therefore a dialogue based on mutual respect should be developed. The legal approach of constitutional pluralism finds its expression in the parallel theories of political science9 which emphasize the significance of state sovereignty and the unique state characteristics that should be given recognition in international relations, legal relations, and political partnerships. 9 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 L. Rev. 351(1999); A. Jakab, Neutralizing the Sovereignty Question, Eur. Const. L. Rev. 375 (2006).

chapter 16

Constitutional Review by the Brazilian Supreme Court: The Case of Civil Arrest Ada Pellegrini Grinover Since 1988, Article 5, Paragraph 2, of the Brazilian Constitution has set forth that, “The rights and guarantees enshrined in the Constitution do not exclude others derived from the constitutional regime or principles or from international treaties ratified by the Federative Republic of Brazil.”1 This doctrine considers that the principles and rules from the “Pact of San José,” formed in Costa Rica, and of which Brazil is a signatory, would be classified as constitutional rules, arranged in hierarchical order. But for a long time, the Supreme Court – in charge of the concentrated control of constitutionality – placed the “Pact of San Jose” principles on the same level as the internal state legislative laws. More recently, however, the Supreme Court has changed its opinion, and has begun considering those rules as being supralegal or constitutional. In a case adjudicated by the Plenum of the Supreme Court, Justice Gilmar Mendes’s decision stated that the international human rights treaties ratified by Brazil have supralegal normative status, which makes conflicting constitutional legislation inapplicable, regardless of whether the legislation was passed before or after the ratification act.2 In the same judgment, Justice Celso de Mello went beyond Justice Mendes’s holding and said that those treaties have constitutional status. In more recent decisions, the Supreme Court exercised its conventionality control as a Constitutional Court and refused to grant effectiveness to a constitutional rule that created the ability to conduct civil arrests in cases where the arrestee has failed to fulfill his duties of support, or when a trustee has acted in bad faith. That position was consolidated in a number of cases judged by the Plenum of the Court.3 In those decisions, the Supreme Court Justices, following Justice Celso de Mello’s opinion, pondered over the real relevance of the matter in light of “the scope and precedence of the fundamental rights of the human 1 Const., art. 5, item lxvii. 2 Extraordinary Appeal number 466.343 / sp. 3 Revision numbers 349.703 and 466.343 judged by the Plenum of the Court, as well by the Habeas Corpus number 87.585, published on June 26th, 2009. (Hereafter: List of cases).

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being.”4 This would, in turn, require the Court’s more obstinate examination of “the growing internationalization of the human rights process,” and of the levels of “relationships between national law (internal positive law) and international human rights law.”5 It was also pointed out that: “The subject of civil arrest for debt, analyzed from the perspective of international documents, especially in the international human rights treaties, assumes great legal importance, as it stimulates reflection about the extinction of an instrument of procedural coercion which is a vestige of a practice that had already been abolished in the republican Rome since the appearance of the ‘Lex Poetelia Papiria’ in the fifth century b.c. At the time that law was hailed as a turning point to divide two historical periods, and represented the dawn of a new era.”6 The necessary paradigm shifts were then identified because, despite the Federal Constitution of 1988’s advocacy of individual freedoms, they established the possibility of civil arrest for debt in cases of both unpaid alimony and a trustee acting in bad faith.7 The members of the Supreme Court declared that, “The American Convention on Human Rights, when providing for the statute of personal liberty, set forth in its article 7, number 7, that: ‘No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support.’”8 They carefully considered the statement made by Justice Gilmar Mendes about the International Convention. Justice Mendes stated that the Convention reiterated the great principles proclaimed by the Universal Declaration of Human Rights, by the American Declaration of the Rights and Duties of Man, and by the Charter of the Organization of American States, and “reaffirmed the intention of the American states to consolidate in this hemisphere, ‘within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man.’”9 Following Justice Celso de Mello’s decision, the other Justices pointed out that it should be necessary to adapt the possible meanings of constitutional literalism “to the changes observed in a society that, similar to the current one, is marked by complexity and pluralism.”10 Therefore, “[…] the ‘Pact of San José’ 4 Id. 5 Id. 6 Id. 7 Const., supra note 1. 8 List of cases, supra note 3. 9 Id. 10 Id.

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Costa Rica is a normative instrument aimed at playing an extremely important role in the Inter-American system for the protection of the individual’s basic rights, being qualified as a complementary piece in the process of protection of the fundamental civil liberties.”11 Thus, the opinion expressed by Justice Marco Aurelio prevailed. He reasoned that the constitutional rule of civil arrest should be superseded, except in cases of unpaid alimony. The same point of view was shared by Justice Ayres Britto when he made it clear in his decision that the existence of “a general clause voiding civil arrest” is a necessary constitutional commitment to individual liberty. Therefore, the Justices concluded that, “The civil arrest of a trustee acting in bad faith no longer suits the supreme values ​​ensured by the Constitutional State, which is not self-centered anymore, but shared with other sovereign entities, both in international and supranational contexts, the duty of providing effective protection to the human rights.” 11 Id.

chapter 17

Judicial Independence in Albania: Challenges in an eu Candidate Country Teuta Vodo Various scholars have discussed the factors principally determining the judicial independence in both western democracies and totalitarian regimes. Previous researches have shown that either exogenous or endogenous influences such as socio-cultural, economic, and/or political factors, legacies of the past, judicial institutions etc., may have a direct impact on judicial independence. In this paper, the aim is to bring out and analyze the main factors influencing the judicial independence in post-communist Albania. Both institutional shields and political factors are taken into account in order to analyze the impact that they may have on judicial independence. The main finding of this study is that the combination of political interference (the exogenous factor), with the lacunas in the legislative framework (the endogenous factor) has a great significance on the quality of judicial independence in the country. Additionally, it is discussed that the extent of democratization is very relevant, and may be the match point to determine the judicial independence in such a transitional democracy. i

Introduction

The status of the courts in post-communist countries was considered constantly at risk.1 Over the past two decades, Albania has been confronting new challenges in the consolidation of its judicial institutions. In both national and international reports, the judicial independence has been continuously mentioned, to be one of the major challenges of the country. The judiciary was often marked as the key factor of the Albanian democratization. The literature on democratization has regularly emphasized the judicial role2 in the development of the rule of law, which is at the heart of the 1 2

1 H. Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (2000). 2 L. Hilbnik, Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile (2007).

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_018

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­consolidation of political democracy.3 As Dickerson puts it, “While judicial independence is not explicitly provided for in the Copenhagen Criteria, it is ­difficult to imagine a well-functioning democracy in the absence of an independent judiciary.”4 The aim of this paper is to explore the key factors affecting the judicial independence in the Albanian judiciary. For this case study, I will borrow from an analysis by Hayo and Voigt, in which concepts of both de jure and de facto judicial independence are theorized.5 Consequently, the paper is divided into two sections where two main variables determining the judicial independence are analyzed. The first variable takes into account the institutional shields such as the organs administering the judiciary, the tenure guarantees, methods of appointment, conditions of removal and the salary guarantees (de jure independence). The second variable takes into account the external factors such as the international assistance, political interference and public trust (de facto independence). Firstly, it argues that institutional shields such as tenure guarantees, method of appointment and removal, and salary guarantees for the judges, conditions of judicial removal6 a bearing on judicial independence. Secondly, it argues that external factors such as the international assistance, political interference and public trust are decisive factors to set limits on the weakness or strength of judicial independence. Primarily, the paper takes into account the major political turning points in the justice system. More precisely, the strong impact that state institutions had in the Albanian judiciary, the role played by judges as a counterweight to political processes and the institutional legacy factors affecting the judicial independence are discussed. As Herron and Randazzo put it, the development of an independent judiciary may be constrained by a weak institutional legacy and the strength of other political actors.7 In fact, decisional judicial ­independence exists if no actor can consistently secure judgments that are in line with his

3 4 5 6 7 8

3 C.M. Larkins, Judicial Independence and Democratization: A Theoretical and Conceptual Analysis. 44 Am. J. of Comp. L., 605–626 (1996). 4 K.H. Dickerson. Judging the Judges: The State of Judicial Reform in Eastern Europe on the Eve of Accession, 32 Int’l J. of Legal Info. 539, 540 (2004). 5 B. Hayo & S. Voigt, Explaining de facto Judicial Independence. 27 Int’l.Rev. of L. and Econ. 271 (2007). 6 M. Popova, Politicized Justice in Emerging Democracies. A Study of Courts in Russia and Ukraine 18 (2012). 7 Erik S Herron & Kirk A. Randazzo, The Relationship Between Independence and Judicial Review in Post-Communists Courts, 65 J. of Pol. 422 (2003). 8 M. Popova, Politicized Justice in Emerging Democracies. A Study of Courts in Russia and Ukraine (2012).

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or her preferences.8 ‘Consistently’ is the key word in the ­definition. It means that we need to look at the outcomes of multiple cases involving a given actor in order to determine reliably whether the courts are independent from that actor or not.9 The paper relies heavily on interview data. More precisely, over 54 targeted interviews were conducted with judicial actors. The interviewees were both national judges and prosecutors. Furthermore, as a second source, I use the legal framework analysis. The plan of the paper is as follows: in the first section, the most relevant theoretical considerations on judicial independence and the trend of researchers on methodological approaches are provided. The second section develops the institutional shields to measure de jure judicial independence, the third section entails the international assistance, the political interference and public trust on the judicial system, and section four concludes. ii

Theoretical Framework on Judicial Independence

Despite an almost universal consensus as to its normative value, judicial independence may be one of the least understood concepts in the fields of political science and law.10 For this study, the definition given by Larkins is taken into account. He states that judicial independence refers to the existence of judges who are not manipulated for political gain, who are impartial towards the parties of a dispute, and who form a judicial branch which has the power as an institution to regulate the legality of government behavior, enact ‘neutral’ justice, and determine significant constitutional and legal values.11 On the other side, Baum defines judicial independence as a condition in which judges are entirely free from negative consequences for their decisions on the bench.12 As Pepys states, the judge is the focal point for reducing corruption within the justice system.13 Ferejohn has pointed out three primary values that judicial 9 10 11 12 13 14

9 10 11 12 13 14

Id., at 18. C.M. Larkins, Judicial Independence and Democratization: A Theoretical and Conceptual Analysis. 44 Am. J. of Comp. L. 606 (1996). Id., at 611. L. Baum, Judicial Elections and Judicial Independence: The Voter’s Perspective, 64 Ohio St. L.J. 13, 14 (2003). M.N. Pepys, Corruption and the Justice Sector (2003). J. Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 So. Cal. L. Rev. 353 (1999).

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independence serves.14 First, it is necessary for the maintenance of the rule of law and for ensuring that all citizens are subject to the same general legal rules. Second, it is necessary for the courts to be able to overturn legislative acts and statutes and therefore, be sufficiently independent of their ties from the other branches of government. It is the role of the courts to ensure that unconstitutional laws are not enforced and that constitutional laws are upheld. Third, it is important, in a democracy, that legitimate laws be given full effect without the interference of another branch of government.15 There are different proxy measures for judicial independence. One of them is the Smithey and Ishiyama index taking into account different related components of judicial power such as overturned decisions, priori review, the judge’s term, number of actors involved in judicial appointments, establishment of court procedures, and conditions for judicial removal.16 As aforementioned, for this case study, I make reference to the Hayo and Voigt index in order to define the formal/non-formal and institutional/non-institutional variables which may have a bearing on the Albanian judicial independence.17 The formal factors that is, ‘de jure’ judicial independence, and informal factors that is, ‘de facto’ judicial independence are taken into account.18 More concretely, the variables such as the organs in charge of the administration of the judiciary, tenure guarantees, methods of appointments, conditions of removal, salary guarantees are included in the analysis of ‘de jure’ judicial independence and the variables of international assistance, political interference and public trust are included in the analysis of ‘de facto’ judicial independence. Many scholars have affirmed that institutional structure of the judiciary is one of the crucial explanatory factors.19 In the study of law and courts, one of the methodological approaches seeks to understand how institutions shape preference formation.20 For this case study, the same approach is used through the analysis of the legislative developments on the justice system. In fact, theories of constrained choice often fall within the separation of powers (SoP) approach which states that, judicial institutions are dependent upon others for 15 16 17 18 19 20

15 16 17 18 19

20

Id., at 353–356. S.I. Smithey & J. Ishiyama, Judicious Choices: Designing Courts in Post-Communist Politics, 33 Communist and Post-Communist Stud. 163 (2000). B. Hayo & S. Voigt, Explaining de facto Judicial Independence, 27 Int’l. Rev. of L. and Econ. 269 (2007). Id., at 271. L. Hilbnik, Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile (2007). Institutions and Public Law: Comparative Approaches (T. Ginsburg and R.A. Kagan, eds., 2005). Id., at 2.

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the successful implementation of their decisions.21 So, as suggested by Hilbnik, regime-related factors and personal policy preferences have been taken into account to explain the judicial behavior.22 In fact, there is little prospect for judicial independence when power (including power over appointment) is concentrated in the hands of a self-selecting ruling political elite.23 Gillman states that “a weak judiciary would permit, simplify and facilitate political a­ ctors to maintain their offices and careers.”24 iii

Structural Safeguards

To study the ‘de jure independence,’ institutional shields are considered and more precisely, the organs in charge of the administration of the judiciary, the tenure guarantees, the methods of appointment, the conditions of removal and finally, the salary guarantees. Before embarking in the study of ‘de facto judicial independence,’ it is relevant to give an overview of the key legislative events related to judicial reform. Thus, for a synthesis of the key legislative events related to judicial reform, see table below. A The Organs in Charge of the Administration of the Judiciary The organs in charge of the administration of the judiciary are the High Council of Justice and the Ministry of Justice. The High Council of Justice is the organ responsible of the appointment, transfer and dismissal of the judges and prosecutors. It is composed of the President of the Republic, the Chairman of the High Court, the Minister of Justice, three members elected by the A ­ ssembly, and nine judges of all levels who are elected by the National Judicial Conference.25 Elected members stay in office for five years, without the right of immediate reelection.26 The President of the Republic is the Chairman of the High Council of Justice whereas the vice-chairman organizes the activity of the High 21 22 23 24 25 26

21

22 23 24 25 26

J.A. Segal, Supreme Court Deference to Congress: An Examination of the Marxist Model, in Supreme Court Decision-Making: New Institutionalist Approaches 521 (C.W. Clayton and H. Gillman eds., 1999). L. Hilbnik, Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile (2007). Id. at 65. H. Gillman, Courts and the Politics of Partisan Coalitions in Whittington, in Oxford Handbook of Law and Politics 645 (K.E., Daniel R.K., and Caldeira G.A. eds., 2008). Const., art. 147. Id.

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Table 17.1 Key legislative events on judicial reform

Year

Judicial reform

1991

Law No. 7491, dated 29.04.1991, ‘On the main provisions of the Constitution’

1995

The entry into force of ‘the Civil and Criminal Code’

1996

Law No. 8136 dated 31.7.1996 ‘On the School of Magistrates of the Republic of Albania’

1998

The entry into force of ‘Constitution of the Republic of Albania’ on 28.11.1998 The Law No. 8373 dated 15.07.1998 ‘On the organization and functioning of the Constitutional Court of the Republic of Albania’

2000

Law No. 8577 ‘On the organization and functioning of the Constitutional Court of the Republic of Albania’

2001

Law. No. 8811, dated 17.5.2001 ‘On the organization and operation of High Council of Justice’

2008

Law No. 9877, date 18.2.2008 ‘On the organization of the judicial power in the Republic of Albania’

Council of Justice and chairs its meetings in the absence of the President of the Republic.27 The High Council of Justice shall exercise the following duties: (a) it proposes to the President of the Republic the appointment of judges of the courts of first instance and appellate courts; (b) it decides on the removal of judges of courts of first instance and appellate courts; (c) it decides on the transfer of judges; (d) it decides on the disciplinary measures against judges; (e) it attends the training of judges; (f) it establishes the criteria for the evaluations of ­judges; (g) it checks and guarantees the evaluation process and review complaints of 27

27

Id.

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judges for their evaluation; (h) it appoints and dismisses the ­presidents of the courts of first instance and appellate courts; (i) it appoints and dismisses inspectors Inspectorate of the High Council of Justice.28 The formal procedures for disciplinary actions of judges are then made by the Inspectorate of the High Council of Justice. Rules of organization and ­functioning and number of inspectors are determined by the High Council of Justice.29 Duties of the Inspectorate of the High Council of Justice are as follows: 1. it provides to the Minister of Justice the complaints of citizens and other subjects who address to the High Council of Justice complaints against judges; 2. it collects and processes, in accordance with the criteria set by law, the data necessary for the professional evaluation of judges; 3. it checks and notes the cases for assets declared by judges, and compliance of their activities and behavior to the requirements specified in the law.30 Despite the fact that this model was adopted based on western standards, there are many concerns on the authority of High Council of Justice to appoint, dismiss and transfer judicial actors since there is a tendency that it may turn into an enclosed body affected by clientelism and corruption. Secondly, the Ministry of Justice is in charge of the disciplinary procedures towards judges.31 On this basis, it performs inspections and proposes judicial disciplinary proceedings before the High Council of Justice.32 Disciplinary measures shall consist of the following elements: (a) remark; (b) reprimand; (c) temporary reduction to two years in office in a court of a lower level; (d) mandate from one to two years in a court; (d) removal.33 The exclusivity of disciplinary proceedings in the hands of the Ministry of Justice may eventually serve as intimidating tools for judges.34 As Omari puts it, “Creating a special inspectorate in the Ministry of Justice gives to this latter the right to inspect ‘ex-officio’ or upon complaints, courts of lower 28 29 30 31 32 33 34

28 29 30 31 32 33 34

Law No. 8811, (Amended by Law No. 9448, 2005) On the organization and operation of High Council of Justice, art. 2 (2001). Id., art. 14. Id., art. 16. Law No. 9877, Judicial power in the Republic of Albania, art. 34 (2008). Law No. 8811 (Amended by Law No. 9448, 2005), On the organization and operation of High Council of Justice, art. 31 (2001). Law No. 9877, op. cit., art. 33. A. Hoxha, Kushtetuta e Republikës së Shqipërisë dhe garantimi i Pavarësisë së pushtetit gjyqësor, kumtesë, Proceedings Book, Studime Juridike. Sistemi kushtetues dhe sfidat e tij in ZaganjoriXh, 152.(Anastasi A. ÇaniE. Shteti i së Drejtës në Kushtetutën e Republikës së Shqipërisë, 2011).

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levels”.35 Furthermore, the fact that only the Ministry of Justice has the exclusive authority to initiate disciplinary proceedings against judges is of particular ­concern.36 One example was the request sent by the Joint Panels of the High Court (No.  3, Date 10.12.2003) to the Constitutional Court, affirming that the right of the Minister of Justice to conduct inspections on the courts and judges, as well as the right to propose disciplinary measures to the High C ­ ouncil of Justice, are powers that violate the principle of judicial ­independence.37 This allegation was rejected by the Constitutional Court. B Methods of Appointments Judges at the Court of First Instance and the Court of Appeal shall be appointed by the President of the Republic upon the proposal of the High Council of Justice.38 The judges are selected ‘from among the candidates on competitive basis.’39 The same procedure is followed for the members of the High Court.40 The criteria to be appointed as a judge are as follows: (i) Albanian citizenship; (ii) full capacity to act; (iii) hold a higher legal education; (iv) have completed the School of Magistrates; (v) not sentenced by a final court decision for committing an offense; (vi) be of high moral character and professional skills.41 There are no further requirements for judicial appointments, e.g., specific tests, personal interviews etc. Even though a whole package of laws regarding the judiciary have been approved since the early ‘1990s, significant lacunas have persisted. Some of the lacunas consisted of the determination of criteria for career judges, with a particular focus on the judges of the High Court and the Constitutional Court. For a summary of the process of judicial selection, see Table 17.2 below: Despite the aforementioned requirements, the process of judicial appointments is not perceived as fair and objective toward the public. In fact, notwithstanding claims about the need to select the best judicial actors, the 35 36 37 38 39 40 41

35

36 37

38 39 40 41

L. Omari, Separation of Powers and Independence of Constitutional Institutions, in Rule of Law in the Constitution of the Republic of Albania (Shteti i së Drejtës në Kushtetutën e Republikës së Shqipërisë)(A. Anastasi and E. Çani eds., 2011). American Bar Association, American Bar Association and Central European and Eurasian Law Initiative, Judicial Reform Indexfor Albania Vol. ii 45 (2004). A. Hoxha, Kushtetuta e Republikës së Shqipërisë dhe garantimi i Pavarësisë së pushtetit gjyqësor, kumtesë, Proceedings Book, Studime Juridike. Sistemi kushtetues dhe sfidat e tij in ZaganjoriXh. (Anastasi A. ÇaniE. Shteti i së Drejtës në Kushtetutën e Republikës së Shqipërisë 2011). Law No. 8811 (Amended by Law No. 9448, 2005), On the organization and operation of High Council of Justice, art. 21 (2001). Law No. 9877, Judicial power in the Republic of Albania, art. 81-2-a, 83–1 (2008). Const. art. 136–4. Law No. 9877, Judicial power in the Republic of Albania, art. 81-2- a, art.11 (2008).

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Judicial Independence in Albania Table 17.2 Selection and appointment of judges

What are the ­requirements to education and experience to be selected as a candidate for the bench?

Are these requirements and criteria objective?

Hold a law degree; Yes graduated from the Magistrates School

Who selects and recommends the candidates for judicial positions?

Who ­appoints the judges?

Is any training required for appointed judges before they take the bench?

The President of the Republic

The High No Council of Justice

Is the process generally perceived as fair and objective? No

appointments within the justice system have often lacked sufficient transparency. This occurs as a consequence of the vague requirements which gave a large number of candidates access to candidates to apply.42 As a result, career opportunities were affected because lawyers with few years of experience were appointed to the Court of Appeals or the High Court, whereas judges with 30–35 years of experience were relegated to serve in lower courts. In the early 1990s, the educational background of lawyers in Albania was often limited to a six-month course. This phenomenon was explained by the desire of the new political class to dismiss judges who had served under the communist regime. A further compelling factor to be mentioned in regards to judicial appointments is the disregard towards legislation.43 An illustration of this latter phenomenon was made when, on June 2008, the Democratic Party, which was then in power, postponed the vote on five nominee-in-waiting judges of the Supreme Court.44 The appointments made by the High Council of Justice are mentioned by my interviewees to be “the main factor influencing corrupt practices within the judiciary.”45 C Tenure Guarantees: Conditions of Judicial Removal and Promotion The tenure of judges is guaranteed through the duration in office of nine years for the chairman and members of the High Court without the right of re-­appointment. The judge cannot move from office unless he/she: (a) resigns; 42 43 44

42 43 44 45

Author’s Interview, Judge of the Court of First Instance, Tirana, Albania (June 2011). Author’s Interview, Judge of the Court of First Instance, Tirana, Albania (June 2011). Albania’s main opposition leaves parliament over Supreme Court row, SETimes (13 June 2008), http://archive.is/U67v. Author’s Interview, Judge of the Court of Appeal, Tirana, Albania (June 2011).

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(b) reaches the age of 65 years; (c) is sentenced by a final court decision for committing a crime; or, (d) is dismissed.46 A judge of the High Court may be criminally prosecuted only with the approval of the Assembly.47 The High Council of Justice is responsible for the dismissal of the judges of the Courts of First Instance and Appellate Courts.48 Thus, “A judge may be removed from office by the High Council of Justice for commission of a crime, mental or physical incapacity, acts and behaviour that seriously discredit the position and image of a judge.”49 Additionally, the High Council of Justice can initiate discipline and removal procedures against judges. The legal basis for such procedures is found in the Article 137/3 Const., which states that, “Judges may be criminally prosecuted only with the approval of the High Council of Justice.” Furthermore, it is stated that, “A judge may be detained or arrested only if apprehended in the course of committing a crime or immediately after its commission.” If the High Council of Justice does not consent within 24 hours to the sending of the arrested judge before a court, the competent organ is obliged to release him. In the first decade, spanning from 1991–1999, the first wave of dismissals included many key leaders in the judicial hierarchy. Judges appointed from previous governments were dismissed rapidly. One motive was based on their inadequate educational background. For example, the ‘Law on the Organization of Justice’ on December 28, 1998 denied the right of practicing their profession as lawyers, to the judges and prosecutors who graduated in the period 1992–1996, as their degrees were not awarded by qualified universities. Additionally, the High Court was affected by the dismissals while the motivations for these latter were not legally reasoned. As a judge stated, “While now there is the right to the due process, in the early ‘90s, a judge was simply told that he/she was dismissed.”50 The formal requirements concerning the promotion of judges are regulated by Art. 24 of Law No. 8436 dated 28 December 1998, “On the Organization of the Judicial Power in the Republic of Albania”51 according to which, “The High Council of Justice shall appoint judges for Courts of Appeal after they have served for not less than five years in the Courts of First Instance, and by 45 46 47 48 49 50

46 47 48 49 50 51

Law No. 9877, Judicial power in the Republic of Albania, art. 20 (2008). Const., art. 137. Law No. 8811 (Amended by Law No. 9448, 2005) On the organization and operation of High Council of Justice, art. 1 (2001). Const., art.147/6. Author’s Interview, Judge of the Court of First Instance, Tirana, Albania (June 2011). Law No. 8436, For the Organization of the Judicial Power in the Republic of Albania, art.24 (1998).

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demonstrating high ethical, moral and professional standards.” Their tenure is not subject to any probationary trial period. Thus, the university performance, duration of practice as a lawyer, professional performance, post-graduate training, as well as any other objective data that show the distinction of one applicant over other candidates are considered during the evaluation of the candidates. The High Council of Justice, at least once in three years, assesses the professional skills of judges, in accordance with the decision adopted by it for the evaluation criteria. The evaluation of skills is as follows: (a) very good; (b) good; (c) acceptable; (d) incompetent.52 Despite these criteria, in practice, the common criteria such as ability, integrity, experience, additional training are not all taken into account while promoting judges. Thus, the process of promotion is not fully transparent. Judges who were appointed to the upper courts were not subject to expedited evaluation procedures as required by the Judicial Power Law.53 For example, one of the preconditions for appointment to the High Court is to be entitled ‘eminent jurist’ (jurist i shquar). Yet, this notion has not been defined by the legislation, and no requirements are described for the candidates in order to be designated an ‘eminent jurist.’ As a result of the legislative lacuna, there is enough freedom of choice for the High Council of Justice to nominate the members of the High Court. In fact, the vague requirements in the legislation for the appointment in the judicial hierarchy were mentioned by more than 35 judicial actors. D Salary Guarantees There are several underlying factors of corruption that tend to make their judiciaries more prone to corruption practices, some of which are institutional and others attitudinal.54 One of the main causes of corruption within the justice system is the low salary which is frequently mentioned by the majority of judges. Even though there has been a regular increase in the salary, it typically has not been satisfactory to support a high standard of living. 51 52 53

52 53

54

Law No. 9877, Judicial power in the Republic of Albania, art. 81-2-a, art.13 (2008). On 24 July 2002, the post of the President of Republic passed to Alfred Moisiu who contributed to the strengthening of the stabilization of the judiciary. In his post as the Chief of the High Council of Justice, he had the power to appoint judges of the Courts of First Instance and Appeals Courts. During his presidency, he reduced clientelism and local connections by certifying that the most qualified judges were appointed. To the question of who contributed the most to the independence and transparency of the judiciary, the most part of the interviewees (judicial actors) mentioned his name arguing that ‘appointments made by Moisiu were the fairest ever made in the Albanian judiciary.’ M.N. Pepys, supra note 13.

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The basic salary of a judge in the Court of First Instance is equal to 50 percent of the salary of a judge of the High Court. After five years of seniority in service, this salary, up to 25 years of service, increases by two percent per year.55 The benefits and privileges other than remuneration are as follows: The judge has special protection, under special circumstances from the state, for himself, family and his/her property. The judge receives annual paid leave of thirty calendar days. The judge who performs urgent duties on weekly rest days or public holidays has the right of supplemental pay benefits at fifty percent of his salary day. Finally, judges can create associations or organizations to protect their rights and interests, as well as professional training.56 The pension that judges receive when they retire is relatively high when compared to other professions, yet too low to afford most expenses of daily life. As a judge of the Court of First Instance of Tirana stated, “Setting such low salaries for the judges means to legitimize corruption. My monthly salary is equal to 800.000 Lek (600 E) which is nothing in comparison with the high cost of living.”57 The adequacy of judicial salaries is a criteria accepted by many legal scholars in order to determine whether judges are factually independent. As stated by Financial Times, “There is evidence of corruption within the Albanian judiciary because of most judges’ lifestyle which cannot be justified by their monthly salary.”58 As a result, the payment of a bribe is used as an inducement to make certain decisions either sought by the magistrate (prosecutor or judge) or offered by the accused, the litigant or lawyer.59 iv

External and Internal Influence

After the analysis of ‘de jure judicial independence,’ which focused on the institutional and structural factors, the analysis of ‘de facto judicial independence’ includes the international assistance to the Albanian judiciary, the political interference, and public trust. In this way, I look closer at the external, yet crucial, factors influencing the judicial independence. 54 55 56 57 58

55 56 57 58 59

Law No. 9877, On the organization of judicial power in the Republic of Albania, art. 26 (2008). Law No. 9877, date 18.2.2008 ‘On the organization of the judicial power in the Republic of Albania’ (Article 24). Author’s Interview, Judge of the Court of First Instance, Tirana, Albania (June 2011). Interview with the Deputy Chairman of the High Council of Justice Kreshnik Spahiu, Fin. Times (2009). M.N. Pepys, supra note 13.

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A The International Role in the Development of the Albanian Judiciary As in other eu potential candidate countries, Albania went through a long and ongoing process of judicial reform during the last two decades. The international actors helped in the development of the Albanian justice system through formal and capacity-related measures, such as the external provision of more resources (e.g. increased salaries, computerization and training), and the introduction of new management systems.60 Nevertheless, a stronger commitment by both international and domestic actors was made solely in the second decade, especially from 2004 and on. Firstly, one of the most important contributors to the development and strengthening of public administration and judiciary is the European Union. A horizontal program on Justice and Home Affairs, launched in 1996, supported judicial cooperation.61 Considering that Albania was lacking judicial implementation capacity and an efficient public administration,62 in 1999, in the framework of the Stabilization and Association Process (sap) created by the eu Commission, the public administration project received 12.1 percent of the assistance by including, among others, support for judiciary.63 Furthermore, in 2001, Albania became eligible for Cards assistance funds which provided funds for overall administrative reforms by placing much more emphasis on sectors such as justice.64 As the Commission stated, “The main objectives of eu assistance are to strengthen the judiciary.”65 The Cards program (2000–2006) was intended to provide Community assistance to ­Albania and other South-East European countries with a view to the participation in the stabilization and association process with the European Union.66 59 60 61 62 63 64 65

60

M. Mendelski, Where Does the European Union Make a Difference? Rule of Law Development in the Western Balkans and Beyond, in European integration and transformation in the Western Balkans. Europeanization or business as usual 118 (A. Elbasani A. ed., 2013). 61 Commission of the European Communities, The Phare Programme Annual Report 1996 14 (1998). 62 European Commission 1997, Albania Orientation of Phare Assistance, Support of State and Economic Recovery 2(1997). 63 J. Hoffmann, Integrating Albania: The Role of the European Union in the Democratization Process, 1 Alb. J. of Pol. 55 (2005). 64 European Commission, Albania: Country Strategy Paper 2002–20066(2001), http:// europa.eu.int/comm/external_relations/see/albania/csp/02_06_en.pdf. 65 Id. 66 Council Regulation (ec) No. 2666/2000, On assistance for Albania, Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia and the Former Yugoslav Republic of

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18,000,000

15,268,001

16,000,000

15,001,022

14,000,000 12,000,000

11,072,609

10,000,000

4,000,000 2,000,000 0

8,508,418

8,000,000

8,000,000 6,000,000

14,500,000

3,900,000 1,500,000

3,500,000

1,500,000

5,000,000

5,098,005 2,268,646

6,133,566 3,382,805

1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012

Figure 17.1 European Commission funds on the Albanian judicial reform European Commission contribution MEUR67

A further financial instrument for the European Union (eu) pre-accession process, for the period 2007–2013, is ‘The Instrument for Pre-Accession Assistance’ (ipa). The aim of the ipa is to enhance the efficiency and coherence of aid by means of a single framework in order to strengthen, among others, the institutional capacity.68 To sum it up, the beneficiaries in the justice system of the commission funds are the Ministry of Justice, School of Magistrates, and State Police. For a summary of the funds of the European Union donated to the judicial reform in Albania, see Figure 17.1 either place this language below table or refer to Figure 17.1 above. Despite the enormous and continuous amount of eu funds, the justice system in Albania has been continuously criticized in the reports of the European Commission. In 2002, experts from the Commission made assessments of justice and home affairs sector by stating that, “Progress has been made in reforming their judicial systems. Nevertheless, this latter still suffers from a number of common deficiencies such as the independence of the judiciary.”69 Still, in 2004, the Commission emphasized that, “Results have fallen short of 66 67 68

67 68

69

Macedonia, repealing Regulation, (ec) No. 1628/96 and amending Regulations (eec) No 3906/89 and (eec) No 1360/90 and Decisions 97/256/EC and 1999/311/EC. Council Regulation (ec) No. 1085/2006 (2006) (established the instrument for pre-­ accession assistance). Data collected by the author with the collaboration of the Delegation of the European Union to Albania (eeas-tirana). I acknowledge the help of the project manager on the Commission funds on judicial system in Albania, Ujkaj Lora. Commission of the European Communities, Report from the Commission, The Stabilization and Association process for South East Europe Second Annual Report 8 (2003).

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e­ xpectations in the key areas such as judicial system.” And in 2009, the Commission stated that, “Despite the legislative developments on the justice reform, the Albanian judiciary continues to function poorly due to shortcomings in independence, transparency and efficiency.”70 Again in 2013, the Commission made assessments that, “More efforts are needed to enhance cooperation between law enforcement institutions, and to establish a solid and convincing track record of proactive criminal and prosecutions.”71 Secondly, another relevant financial assistance derived from usaid which financed a Rule of Law project with the aim to strengthen accountability mechanisms and foster judicial integrity as a means of improving the administration of justice.72,73,74 To this end, it provided direct assistance to selected governmental and non-governmental bodies. Therefore, among the governmental bodies assisted by the project are: (1) the High Inspectorate for the Declaration of Assets (hidaa) to successfully implement the asset disclosure law and the conflict of interest law; (2) the Inspectorate of the High Council of Justice and the Inspectorate of the Ministry of Justice to streamline their judicial inspection procedures as well as their cooperation; and, (3) the Ombudsman to better supervise and assist in the implementation of the Freedom of Information Law. Thirdly, significant assistance was generated from the joint program with the Council of Europe. Legal and regulatory frameworks were put in place and assistance was provided to the Ministry of Justice. Additionally, the School of Magistrates, a public budgetary institution, was founded in 1997 by enjoying the status of legal entity, administrative autonomy, academic and financial support for the implementation of the goals and tasks set in this law.75 It provides professional training of magistrates. The vocational training program includes initial formation of candidates for magistrates and continuous training of judges and prosecutors in their duties.76 The School of Magistrates influenced the course of the process of judicial appointments (or ­post-graduate education at the law faculty founded in 1997). It had a direct impact on the 69 70 71 72 73 74 75

70 71 72 73 74 75 76

Commission of the European Communities, Albania 2009 Progress Report (2009). Commission of the European Communities 2013, Albania 2013 Progress Report (2013). American Bar Association, American Bar Association Central and East European Law Initiative 2001, Judicial Reform Indexfor Albania, Vol. i (2001). American Bar Association, supra note 37. American Bar Association, American Bar Association Central and East European Law Initiative 2006, Judicial Reform Indexfor Albania, Vol. iii (2006). Law No. 8136, On the School of Magistrates of the Republic of Albania, art.2 (1996). J. Hoffmann, Integrating Albania: The Role of the European Union in the Democratization Process, 1 Alb. J. of Pol. 64 (2005).

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­ rocess of fostering the functional independence of the judiciary. The first p alumni started working as judges or prosecutors beginning in the early 2000s. In the first decade, there has not been any strategic assistance focused on the judiciary. During this crucial period between 1991–1998, the pressure on the judiciary and the abuse of the rule of law would become a practice and part of the political culture. As observed, this was partly due to the fact that the international assistance was mostly concentrated on other fields such as humanitarian aid, etc. During the years between 1996–1999, the assistance was focused on infrastructure support, with around 60 percent of the funds focused on that area. In the time frame between 2002 and 2004, funding shifted radically to public administration (including the judiciary reform), becoming the single most important area of support with 60 percent of the assistance a­ llocated.77 Because the debate over the state of right and the rule of law began much later, too little was done before the 2000s in the judiciary field. As a judge stated during an interview, “I would single out the 2000s as the most successful period when the law-making process has been an extraordinary evolution due to the commitment of Albania in the Stabilization and Association Agreement. Another phase where Albania committed itself to relevant international conventions lasted from 2003–2007.”78 Concerning the second decade, many judicial actors state that judicial reform in Albania has been hampered several times. For example, the country’s overall political stalemate in 2009 had a negative impact on the process of justice reform because of the boycott of the opposition to the law proposals which could not be voted on without the qualified majority. Thus, the boycott of the opposition, and the subsequent policy of not voting on any law project, distracted political attention from the reforms and caused the failure of the parliament to vote the law on administrative courts and administrative disputes. Thus, between 2004 and 2008, Albania achieved only limited progress in terms of judicial capacity.79 Additionally, from 2009 to 2011, the justice reform was generally hampered by the political boycott which began with the 2009 parliamentary elections. B Political Interference Since the early 1990s, there has been increasing concern about the tendency of the executive to expand its control over independent institutions, in particular to justice. 76 77 78

77 Id. at 64. 78 Author’s Interview, Judge of the Court of Serious Crimes, Tirana, Albania (Jan. 2011). 79 M. Mendelski, Where Does the European Union Make a Difference? Rule of Law Development in the Western Balkans and Beyond, in European integration and transformation in the Western Balkans.Europeanization or business as usual 107 (A. Elbasani A. ed., 2013).

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In the first decade, the initial proposals of the Democratic Party were r­ egarded as factual legislation. In fact, since the early 1990s, the President of Republic Berisha was often accused with abusing his position as president.80 In the name of ‘anticommunism,’ officials appointed by the Hoxha and Alia regimes were replaced with his personal cronies to assure the judiciary’s cooperation with his policies.81 From 1992 to 1997, the pressure on the judiciary and the abuse of the rule of law became a practice which permitted the lacunas left by the legislation of the time to be filled by personal political interests. Furthermore, legal experts were replaced by political activists in state institutions reflecting the policy-making in Albania.82 The judiciary was affected by this phenomenon as well. The objective was to exclude the old functionaries of the communist era from the judiciary. Accordingly, judges serving during the communist regime were easily replaced by political militants. Andreotti, an Italian politician and three times Prime Minister of Italy, warned the Albanian judicial actors to avoid the accelerated judicial training courses as implemented by Togliatti government with the mere aim to fill judicial positions with judges who had not been affiliated with the previous regime.83,84 By the 1998 elections, the Socialist Party had come into power. The new leftwing Prime Minister set up a whole theory of ‘the campaign of meritocracy’ based on professional skills and merits.85 Nevertheless, since the very beginning, there were clear signs of the dismantlement of the previous structures. In the center of the collision was the judiciary, which came under a barrage of accusations. For the High Council of Justice, a popular formula was proposed. The majority of the appointees were lawyers from the new administration. The Law ‘On the High Council of Justice,’ and the mechanism of appointment were changed with an amendment because of the absolute majority that the Socialist Party had in Assembly.86 The situation was paradoxical, as many ex-lawyers, who had defended people for criminal acts, became senior justice members. 79 80 81 82 83 84 85

80 81 82 83 84

85 86

In 1994, he lost a constitutional referendum amidst which would have given him more powers as a president. M.F. Goldman, Revolution and change in Central and Eastern Europe: political, economic, and social challenges 69 (1997). Author’s Interview. January 2011. Judge of the Court of Appeal of Tirana, Tirana, Albania. S. Ngjela, Perkulja dhe renia e tiranise shqiptare 1957 220 (2011). The same phenomenon was implemented in the post-war Italy. The accelerated preparation of the judges with 6-month training courses, a thesis suggested by Palmiro Togliatti, then Minister of Justice in De Gasperi Government, was considered a complete failure. M. Baze, Përballja Me Antiopozitarizmin (Confronting the Anti-Opposing Factor) 10 (2008). The Chief Justice of the Supreme Court rejected firmly the law and tried to fight it publicly but being weak and implausible he was not supported.

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As a judge from the Court of First Instance of Tirana stated, “As productive years, I would mention the period from 1993 to 1995, because there was a change of the overall legislative framework. On the other hand, in the period from 1996 to 1998, a regression took place due to the political situation and the course of events but still there existed a political will of the political class in Albania to reform the justice system.”87 There have been clear examples of pressure from the executive in certain mediatized corruption affairs. As one judge of the Court of Appeal puts it, “There has always been an interest from the executive to have the judiciary firmly under control. No matter how completed the legislation. There will always be found lacunas which political actors will use on their benefits.”88 Still, in the second decade, the Albanian justice system continued to be subject to interference from other branches of government. So, despite the improvement of the legal frameworks and infrastructure of the Albanian justice system, the factor of judicial decisions and improper influence has always had negative results (see Table 17.3 below). Table 17.3 Judicial decisions and improper influence89,90,91 ,92

Judicial Reform Index Factor

Correlation Correlation 2001 2004

Correlation 2006

Correlation 2008

Judicial Decisions and Improper Influence

↓

↓

↓

↓

The independence of the justice system faced a constant threat from repeated government attempts to assert pressure and to control magistrates, particularly in 2005, 2008 and 2013. Therefore, the rating for judicial framework and independence (based on a scale of 1 to 7) worsened from 4.00 to 4.25, where 1 represents the highest level of democratic progress and 7 the lowest (see ­Figure 17.2 below). 86 87 88 89 90 91

87 88 89 90 91 92

Author’s Interview, Judge of the Court of First Instance of Tirana, Tirana, Albania (June 2011). Author’s Interview, Judge of the Court of Appeal of Tirana, Tirana, Albania (Jan. 2011). American Bar Association, supra note 73 American Bar Association, supra note 37. American Bar Association, supra note 75. The following symbols will be used: ↑ (upward trend; improvement); ↓ (downward trend; backsliding); and ↔ (no change; little or no impact).

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Judicial Independence in Albania 5 4.75

4.8 4.6 4.5

4.4

4.5 4.25

4.2

4.25

4.25

4.25

4.25

4

4

3.8 3.6

4.5

4.75

2001

2001

Figure 17.2

4.75

4.25

4

2003 2004 2005 2006 2007 2008 2009 2010

2011

2012

2013

2014

Judicial framework and independence 2001–2014.93

Therefore, if by 2005 there existed a strong will to improve and implement necessary reforms within the system, after 2005, the judiciary took a step backwards in terms of preserving and strengthening its independence. As an ­interviewee stated, “The judiciary is concentrated in the hands of few people. As a result, it is mainly used for personal preferences.”94 To this date, private or individual affairs are still mentioned by judicial actors to be the main factors influencing corruption.95 As a judge would state, “Certainly, the government does not aim for the regulation and continuous improvement of the judicial system but rather its submission.”96 C Public Trust One of the major issues encountered when developing a plan to combat cor­ruption is the public’s perception of corruption.97 Corruption is pointed as the major impediment for an effective judicial system.98 I have identified 92 93 94 95 96 97

93 94 95

96 97 98

Albania, Freedom House, http://www.freedomhouse.org/report/nations-transit/2012/ albania#.U9-nivnoih1 (last visited Feb. 6, 2016). Author’s Interview, Prosecutor in the Prosecution Office, Tirana, Albania (Apr. 2011). The Open Society Monitoring Report 57a mentioned that the ‘decisive test for the state of the rule of law in Albania’ is the judicial process evidenced in two judicial cases against government ministers. The first case was against the Former Defense Minister, who was responsible for the explosion of an ammunition depot in a village close to the capital killing 26 individuals and harming 300 others. The second case involved the foreign minister of Public Works and Transportation, who came under investigation as a result of a highway contract. Author’s Interview, Judge of the First Instance Court, Civil Chamber, Tirana, Albania (Apr. 2011). Corruption: Anthropological Perspectives (D. Haller and C. Shore eds., 2005). osce 2005

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two main reasons why the Albanian judiciary does not enjoy the public trust: The massive corruption within the system itself, and the caseloads in the courts which cause delays in the finalization of judgments. Firstly, systemic corruption within the justice system is commonly defined as the use of public authority for personal gain that results in an improper delivery of judicial services and legal protection for citizens.99 In an attempt to combat this phenomenon, many efforts were made from the legislature. For example, one of the methods to achieve judicial transparency was based on the composition of three to five judges in the panel. As several interviewees stated, “Even though this latter formula (the composition of more than two judges in one panel) does not solve completely the high corruptive affairs within the system, it hampers the easiness of accepting bribes.”100 There is a widespread public perception of the pervasive corruption in the Albanian courts, which have turned out to be the most corrupt among other public sectors.101 Albanian courts were constantly accused of corruption, of having an exorbitant number and complexity of procedural steps, and a lack of procedural transparency. A prosecutor, during an interview stated, “The judicial independence cannot be achieved by the newly graduated people because they speak one or two foreign languages and wear smart. The prior requirements for the individuals to be appointed should be: integrity, moral stand, and deprivation of all the things which otherwise would identify him/her (the judge) as part of that corrupted vicious circle.”102 According to the aba ceeli report, the main issues causing the lack of transparency isa dearth of sufficient enforcement efforts, and a general social acquiescence to corrupt practices.103 Lawyers are often mentioned as involved as intermediaries in the bribery of judges on behalf of their clients. 41% of judges have accepted bribe offers from litigants, and 55% have admitted that lawyers have approached them in an effort to influence their decisions.104 On the one hand, judges complain that, “The perception of corruption on their behalf was highly colored.”105 “The mistrust of the citizens is ­exaggerated. 98 99 100 101 102 103 104

99 100 101 102 103 104 105

M.N. Pepys, supra note 13. Author’s Interview, Judges and Prosecutors of the Court for Serious Crimes, Tirana, Albania. Transparency Int’l, http://www.transparency.org/search (last visited Feb. 6, 2016). Author’s Interview, Prosecutor in the Prosecution Office, Tirana, Albania (Jun. 2011). American Bar Association, supra note 73. Author’s Interview (June 2011). ‘I am ashamed of introducing myself as a judge. I already know what people will think and say.’ Other two judges affirmed: ‘Yes, I am a judge but I still rent an apartment after ten years of serving in the court and all I can afford is a Fiat car. Not all of us are corrupted. I do

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The citizens are not aware of what is in the hand of the judiciary, the executive and the legislator,” a judge stated during an interview. “Even in cases where the final verdicts are quite predictable, the part that loses will hardly consider result as fair. Everyone finds difficult to accept the loss after a judicial decision.”106 As Pepys states it, “In Albania, where corruption is endemic, where the public views the government with disrespect, where governmental leaders reputedly engage in serious corruption and where networks determine the judicial outcome, citizens view any final verdicts to be the product of corruption.”107 The same was mentioned by many other judges interviewed around the same period of time. “The citizens find it difficult to accept the loss after that a judicial decision is given.”108 During an interview, a judge stated, “I find that in a country where football is not popular, and the economy weak, you cannot expect the national team to win the World Cup. With justice is the same. You cannot expect justice to be far higher than the standards of all the other sectors of society.”109 On the other hand, most of the judges admitted that corruption was a serious issue. As a judge stated, “In the Albanian context, corruption is interpreted as a form of exchange and part of the way in which individuals connect with the state. So, the outlook in Albania is such that the part who loses assumes that the other part bribed the judge.”110 Secondly, an additional factor contributing to the public mistrust of the justice system is the length of the judicial processes and pre-trial detention. Even though the average length of the procedure, from the Commission of the Offence to the court sentence, is estimated to be two months, the time frame in which judicial decisions are made is generally much lengthier. This is due to many reasons, including the caseloads, the legislative changes, and the missing witnesses (notably in the Court of Tirana).111 The court caseloads have 105 106 107 108 109 110

106 107 108 109 110 111

have colleagues who may have luxurious cars and villas but this is not my case. Often, I avoid saying that I am a judge’ – stated another judge. ‘It is not a pleasant sensation to be seen by others as corrupted.’ Author’s Interview, Judge of the First Instance Court, Civil Chamber, Tirana, Albania (Jun. 2011). M.N. Pepys, supra note 13. Author’s Interview, Judge of the First Instance Court, Civil Chamber, Tirana, Albania (Apr. 2011). Author’s Interview, Judge of the First Instance Court, Penal Chamber, Tirana, Albania (Jun. 2011). Id. Albania, supra note 95.

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increased steadily, including the preliminary inquiry used in most complex cases, and are always dealt with by the full complement of judge and assessors. The heavy caseloads are more evident in the civil courts. v

Conclusion

The factors impacting the judicial independence in Albania may be numerous and varied. In this paper, I have outlined the main factors which have a bearing on judicial independence. These factors were divided into two main categories, the internal and external variables. Despite the legislative efforts and the assistance provided by the international community, the formation of judicial independence has been hampered by many exogenous and endogenous factors. First of all, a legal framework as a guarantee for judicial independence in Albania has almost been achieved. The Law ‘On the organization and functioning of the judiciary and the creation of the office of court administration’ which entered into force in 1998 may have had the premises for the fulfillment of a functional judicial independence. In order to ensure judicial independence, the legislation has provided the guarantee through the composition of three to five judges in the process of judicial decision-making. Nevertheless, a reflective improvement for an independent judiciary on this matter has yet to be cemented. In fact, despite legislative efforts to modernize the judicial system, clear criteria for the career and qualification of judges are notably absent. For example, as has been claimed by the interviewees, there have been prosecutors who have been appointed directly to the Court of Appeal without having served in the lower courts beforehand. Lawyers without any experience as judges have even been appointed to the Supreme Court. In addition, the public lacks trust in the judiciary. In the international reports, the judiciary is perceived by the public to be the most corrupt sector of all the public institutions. After the 1990s, despite the western concepts introduced by international actors, such as the separation of powers, the rule of law, judicial independence etc., informal institutions and practices have continued to be built and implemented. Nonetheless, as I could point out, the judicial actors, either judges or prosecutors, do not see themselves as key-players in the judicial system. They expect more intervention and input from national and/ or international actors, for financial assistance, training, and so on. As for the interference by political actors, there remains a large and undue influence of the judiciary by the executive branch. The evidence is based on the judicial decisions favoring the preferences of the dominant political

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parties and figures. The judicial actors themselves, both judges and prosecutors, claim that no one is interested in an independent judiciary to date, and that the legislative initiatives have not had any solid effects. Based on an analysis of the decision-making of the courts in these last twenty years, it should be asserted that judges are affected by the favor-exchange culture. Moreover, there is evidence of such interference in the last two decades because the appointments/replacements of judicial actors such as the Supreme Court and Constitutional Court judges have coincided with the change of governments, and not with the end of their mandates. They have been appointed and replaced without regard for their career history or the number of years they have served as judges. This study shows that factors such as tenure guarantees, the method of appointment, salary guarantees, and the strength of informal networks that circumvent the justice system all have weight for judicial independence in Albania. Nonetheless, it seems that the lack of successful judicial independence depends on the combination of the gaps in the law with political interference.

part 4 Domestic Courts and Foreign Elements: Foreign Parties, Foreign Law and Foreign Judges

⸪

chapter 18

To Ignore or Not to Ignore: A Silly Debate in the U.S. Supreme Court? Wayne McCormack Among the many important and trenchant debates that take place in the U.S. Supreme Court, there occasionally emerges a debate that at first glance could be described as silly for grown professionals. The subject of this paper highlights one of those. Justice Scalia could be seen as contending that the Court must turn a blind eye to what other nations think about an issue of law, even if there is a consensus among the international community on the issue. Other Justices occasionally cite to developments elsewhere. Viewed simplistically, the Scalia position would seem to be a silly burying of one’s head in the sand. The debate over awareness of foreign or international law has resulted in a rare series of public appearances in addition to the Court opinions. In truth, the debate is part of a more subtle and broader debate that encompasses several different realms of U.S. law, primarily having to do with modes of constitutional interpretation. For purposes of this paper, the emphasis will be on the visible debate with some reference to the underlying issues. For an international audience, the first step is a reasonably simple one – describe the series of cases (all very important and serious matters) that led to the debate. Step two will be looking at how some of the Justices and the scholarly observers have engaged the debate, along with some legislative actions and their implications for judicial independence. Step three will note some of the other issues of international law faced by U.S. courts. Finally, there will be a few concluding remarks about the real nature of constitutional interpretation in the U.S. and the future role of the U.S. in the international community. i

Source of the Debate – Individual Rights

A The Sequence of Cases The story begins with Trop v. Dulles,1 a wwii case of “desertion” by a dishonorably discharged Army private who was told that he could not have a passport 1 356 U.S. 86 (1958).

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_019

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because his citizenship had been revoked by operation of an old statutory provision that was triggered by his conviction for “desertion in time of war.”2 The Supreme Court held that a native-born citizen of the United States who did not voluntarily relinquish or abandon his citizenship or become involved in any way with a foreign nation, could not be involuntarily deprived of his citizenship. Along the way, a plurality of four Justices led by Chief Justice Warren made this comment: The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. It is true that several countries prescribe expatriation in the event that their nationals engage in conduct in derogation of native allegiance. Even statutes of this sort are generally applicable primarily to naturalized citizens. But use of denationalization as punishment for crime is an entirely different matter. The United Nations’ survey of the nationality laws of 84 nations of the world reveals that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion.3 The basis for the plurality was twofold: that citizenship was irrelevant to the military offense of desertion and that expatriation as punishment for crime was cruel and unusual punishment in violation of the Eighth Amendment.4 Following Trop, the issue of what other nations might think sat dormant for almost two decades before it emerged in a series of five cases dealing with imposition of the death penalty for certain crimes or persons. The first death penalty case in our saga is Coker v. Georgia,5 in which the Court held that the death penalty was cruel and unusual in cases of rape when

2 The case was particularly sympathetic because Trop had been confined to the stockade in Morocco for some minor offense, walked away with a friend, and was picked up the next day by a military truck while walking back to the base. It was hardly a case of active desertion in the face of the enemy. 3 356 U.S. at 102–103. 4 Justice Brennan concurred on the ground that citizenship was granted to native-born persons by the Constitution and thus was outside the purview of Congress’ power. To reach that conclusion, Justice Brennan had to distinguish the earlier case of Perez v. Brownell, 356 us 44 (1958), in which the Court held that voting in a foreign election could be a basis for loss of citizenship. The difference was that the vote affiliated the citizen with another country while desertion alone implicated no link to another country. 5 433 U.S. 584 (1977).

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death did not ensue.6 In a footnote, the Court noted the practice of other nations on the issue.7 Next is Enmund v. Florida,8 eliminating the death penalty in cases of “felony murder” – a peculiarly Anglo-American concept in which a person is guilty of murder if an accomplice in a felony happens to kill someone. Again, it was a plurality of the Court which noted the practices of other nations in this regard.9 The concept of “felony murder” is roughly akin to that of Joint Criminal Enterprise iii in the jurisprudence of the icty, which requires that the defendant should have reasonably expected a crime to be committed in the course of a common plan or scheme. That concept was rejected by the eccc, and as the us Court noted, the idea of “felony murder” has been abandoned even by its progenitor nation of Great Britain. Next is Thompson v. Oklahoma,10 eliminating the death penalty for juvenile offenders under the age of 16 at the time of the offense. The plurality this time merely noted abandonment of juvenile death penalty “by other nations that share our Anglo-American heritage, and by the leading members of the Western European community.”11 But a year later, in Stanford v. Kentucky,12 the Court held that the death penalty for offenders aged 16 and 17 at the time of the offense did not constitute cruel and unusual punishment. In Atkins v. Virginia,13 the Court invalidated the death penalty for mentally retarded defendants, commenting that “within the world community, the 6

The Court had begun looking closely at the death penalty earlier in Furman v. Georgia, 408 U.S. 238 (1972) when it held that the death penalty was cruel and unusual because its application was discretionary, haphazard, and disproportionately inflicted against certain minority groups. 7 Id. at 596 n.10: In Trop v. Dulles, 356 U.S. 86, 102 (1958), the plurality took pains to note the climate of international opinion concerning the acceptability of a particular punishment. It is thus not irrelevant here that out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue. United Nations, Department of Economic and Social Affairs, Capital Punishment 40, 86 (1968). 8 458 U.S. 782 (1982). 9 Id. at 796 n. 22: “[The] climate of international opinion concerning the acceptability of a particular punishment” is an additional consideration which is “not irrelevant.” Coker v. Georgia, 433 U.S. 584, 596, n. 10 (1977). It is thus worth noting that the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe. 10 487 U.S. 815 (1988). 11 Id. at 830. 12 492 U.S. 361 (1989). 13 536 U.S. 304 (2002).

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i­mposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.”14 That brings us to eruption of our debate in Simmons v. Roper,15 in which the Court extended its ban on the juvenile death penalty to offenders under the age of 18. B Kennedy v. O’Connor v. Scalia In what is generally known as the Roper case, Justice Kennedy wrote for a 5–4 majority. Interestingly, the state court from which the appeal came had held that intervening cases and societal norms after Stanford had effectively changed the context of “cruel and unusual” to the point that an offender under 18 could not be executed. The majority did not mention the question of whether a state court could ignore binding Supreme Court precedent, a lapse for which both Justices O’Connor and Scalia took Justice Kennedy to task. Regarding this point, the state court could have decided the case under state law, which would have shielded it from review in the U.S. Supreme Court, although it chose to decide that Stanford was no longer good law after Atkins. As the other Justices pointed out, deciding that a U.S. Supreme Court case is no longer good law is hardly a role for a state court. But since the majority agreed with the state court, this issue did not seem to merit their attention. On the merits, the majority first reviewed state decisions on the question, finding that 30 states had prohibited the death penalty for those under 18, either by legislation or court decision, and that in the remaining 20 states, the practice was at most infrequent. The apparent consensus of decreased culpability for juveniles could have been based on three factors: (1) a lack of maturity or underdeveloped sense of responsibility were more understandable among the young; (2) juveniles were more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and (3) the character of a juvenile was not as well formed as that of an adult. All of this reasoning could have sufficed for decision of the case under the rubric of the Court’s responsibility to determine the meaning of “cruel and unusual” under U.S. law. But it went on to invite a further discussion: Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not 14 Id. at 317 n. 21. 15 543 U.S. 551 (2005).

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b­ ecome controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.” As respondent and a number of amici emphasize, Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18. As of now, the United Kingdom has abolished the death penalty in its entirety; but, decades before it took this step, it recognized the disproportionate nature of the juvenile death penalty; and it abolished that penalty as a separate matter. It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. So what is there to be upset about in this discussion? Justice Kennedy merely finds support for a normative conclusion about cruelty from a number of sources, including not only American legal and psychological opinions but those from the international community as well. Ah, but this is very troubling to Justices Scalia, Rehnquist, and Thomas. To the rescue on the issue of sources comes Justice O’Connor, although she disagrees with the normative conclusion to be reached. Here are some excerpts from the O’Connor opinion: Because I do not believe that a genuine national consensus against the juvenile death penalty has yet developed, and because I do not believe the Court’s moral proportionality argument justifies a categorical, agebased constitutional rule, I can assign no such confirmatory role to the international consensus described by the Court. In short, the evidence of an international consensus does not alter my determination that the Eighth Amendment does not, at this time, forbid capital punishment of 17-year-old murderers in all cases. Nevertheless, I disagree with Justice Scalia’s contention that foreign and international law have no place in our Eighth Amendment jurisprudence…. [T]his Nation’s evolving understanding of human dignity

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certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries. On the contrary, we should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement – expressed in international law or in the domestic laws of individual countries – that a particular form of punishment is inconsistent with fundamental human rights. At least, the existence of an international consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus. The instant case presents no such domestic consensus, however, and the recent emergence of an otherwise global consensus does not alter that basic fact. [If I may be permitted a personal aside here, this opinion proves as in many other instances, the brilliance and political acumen of Justice O’Connor. Her stalwart presence on the Court is sorely missed.] Now for the diatribe from Justice Scalia: Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage. Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position. That the Senate and the President – those actors our Constitution empowers to enter into treaties – have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces. More fundamentally, however, the basic premise of the Court’s argument –that American law should conform to the laws of the rest of the world – ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law – ­including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations ofthe Constitution prescribed by this Court itself. [here listing the exclusionary rule, holdings regarding establishment of religion, and abortion] The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision making, but sophistry.

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A dispassionate observer easily could be forgiven for wondering what all this sound and fury is about. Does it signify nothing, since Justice O’Connor’s opinion addresses directly the disagreement on the Court over whether there is a normative consensus in the U.S. on the issue of juvenile death penalty? Is it sophistry as Justice Scalia later explains for the Court to cite foreign law when it supports liberal causes and ignore it when foreign law takes a more conservative direction? C Lawrence v. Texas One more case should be added to the mix before we turn to the intense debate among Justices on the Court. In Lawrence v. Texas,16 the Court struck down sodomy laws that would allow states to criminalize sexual conduct between consenting adults of the same sex. The basis of the holding was that it interfered with rights protected under the “liberty” clause of the Constitution, rights that are usually found in the mores and standards of the American people as expressed primarily through legislation and court opinions. In discussing why it was appropriate to overrule the earlier case of Bowers v. Hardwick,17 which had upheld those statutes, Justice Kennedy detailed that Bowers was wrong not only in its description of U.S. historical practice but also its depiction of foreign law and standards:18 The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 ­repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, § 1. Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that

16 539 U.S. 558 (2003). 17 478 U.S. 186 (1986). 18 For the depiction in Bowers, see id. at 196.

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the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v United Kingdom, 45 Eur. Ct. H.R. (1981) P 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.19 If Justice Kennedy’s depiction of the Bowers’ opinion were accurate, then there would be nothing controversial about correcting its view of the standards of a “wider civilization.” But Justice Scalia read the Bowers opinion differently: In any event, an “emerging awareness” is by definition not “deeply rooted in this Nation’s history and traditions,” as we have said “fundamental right” status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on “values we share with a wider civilization,” but rather rejected the claimed right to sodomy on the ground that such a right was not “deeply rooted in this Nation’s history and tradition.” Bowers’ rational-basis holding is likewise devoid of any reliance on the views of a “wider civilization.” The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since “this Court…should not impose foreign moods, fads, or fashions on Americans.” Lawrence does not enter as dramatically into the “foreign-domestic” debate as might seem likely because, as indicated above, the references to foreign and international holdings were couched as responses to an earlier discussion of traditions beyond the borders of the U.S. Nevertheless, it fits within the framework of the debates that followed because it aided Justice Scalia’s characterization of the use of foreign law in pursuit of liberal values opposed to the values of the American populace. D The Breyer-Scalia Debates These series of cases spawned something of a traveling roadshow in a series of discussions between Justices Breyer and Scalia on the topic of constitutional 19

539 U.S. at 572–573.

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interpretation. Specific to the topic of this conference, the two Justices started their traveling performance on January 13, 2005 at the American University Washington College of Law.20 Justice Scalia maintained that he would not use foreign law except in the interpretation of treaties. What’s going on here? Do you want it to be authoritative? I doubt whether anybody would say, “Yes, we want to be governed by the views of foreigners.” Well if you don’t want it to be authoritative, then what is the criterion for citing it or not? That it agrees with you? I don’t know any other criterion to bring forward. Justice Breyer responded that all information can be helpful but not all can be known and certainly not all can be incorporated into opinions: [One] of them that was really, maybe still is rather uncertain for me was an opinion I wrote in a case involving the Establishment Clause and school vouchers. And, of course, one of the things I had to face from my point of view, because I thought it would cause too much dissension in society, which was relevant to my legal argument. So, of course I had to face the fact in France they subsidize a religious school and it isn’t the end of the earth. And the same thing is true in Britain, other countries. So, should I be aware of that? Yes. Should I have – feel that conscientiously I might have to deal with that in my opinion? Yes. Is it something where I’m citing only things that favor me? Of course not. I mean, what I see in doing this is what I call opening your eyes, opening your eyes to things that are going on elsewhere, use it for what it’s worth. The discussion then turned to the death penalty cases. Here is a brief excerpt: SCALIA: But if you’re looking for the evolving standards of decency of American society, why would you look to France? The only way in which it makes sense is if you have a third approach to the interpretation of the Constitution, and that is I am not looking for the evolving standards of decency of American society; I’m looking for what is the best answer in my mind as an intelligent judge. And for that purpose I look to other intelligent people, and I talk sometimes about conversations with judges and lawyers and law students. Do you think you’re representative of 20

The transcript can be found under the heading of “U.S. Association of Constitutional Law,” http://domino.american.edu/AU/media/mediarel.nsf/1D265343BDC2189785256B81 0071F238/1F2F7DC4757FD01E85256F890068E6E0?OpenDocument.

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American society? Do you not realize you are a small cream at the top, and that your views on innumerable things are not the views of America at large? And doesn’t it seem somewhat arrogant for you to say, I can make up what the moral values of America should be on all sorts of issues, such as penology, the death penalty, abortion, whatever?…I suggest that change is based not upon the theory that you’re looking for what the moral perceptions of America is, but that you’re looking for moral perceptions of the justices. And I frankly don’t want to undertake that responsibility. I don’t want to do it with foreign law, and I don’t want to do it without foreign law. I sleep very well at night, because I read old English cases. (Laughter.) And there’s my answer. JUSTICE BREYER: I think that’s pretty good. I think that’s really what’s worrying people. And of course I think that underneath that my own views, it’s really because I think, and I think many judges think, that your own moral views are not the answer; that people look other places for trying to find out in those few cases where [moral views are] determinative how to find answers that aren’t [my own but other respected opinions]. So what can we learn from the Scalia-Breyer debates? Basically, we learn that a person with a rigid view of determining intent of the drafters does not need to look at anything else. While a person who is grappling with interpreting uncertain language, and particularly language looking to future values such as “cruel and unusual” will look at a variety of sources for whatever they may be worth. There is nothing surprising in any of this, especially when read in light of their ongoing differences over the manner of interpretation generally. In October 2006 the two appeared at an event at the d.c. Capital Hilton Hotel. To a reporter at that event, the two seemed the best of buddies: “The two have served together on the bench for 12 years now, and they share the easy familiarity of old friends, playing off one another and poking fun to score points.”21 In October 2009, at the University of Arizona, Justices Breyer and Scalia engaged in a “conversation” over whether the Constitution should be decided by Scalia’s “originalism” approach or through a more flexible approach advocated by Justice Breyer. Adam Liptak described the “conversation” event this way: The discussion, between the court’s two primary intellectual antagonists, bore the relationship to a conversation that a fistfight does to a handshake. The justices know how to get under each other’s skin, and they 21

Jan Crawford Greenburg, Scalia and Breyer: Little in Common, Much to Debate, ABC News (Dec. 6, 2006), http://abcnews.go.com/Politics/story?id=2704898.

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punctuated their debate with exasperation, eye-rolling and venomous sarcasm.22 The Breyer-Scalia debate went before Congress in October 2011 in what has been described as a highly congenial discussion before the Senate Judiciary Committee. The Scalia position is relatively easy to describe. As he puts it, his job is to determine what the adopters of a provision meant and apply that understanding. To Justice Breyer, interpretation of vague words such as “liberty,” “reasonable,” “due,” and “cruel” require reference not only to contemporary values but to the logic and structure of government itself. To be fair, it is not only Justices Breyer and Scalia who have spoken outside the courtroom on this issue. Justice O’Connor has stated, as she did in Atkins, that “while ultimately we must bear responsibility for interpreting our own laws, there is much to learn from other distinguished jurists who have given thought to the same difficult issues that we face here.” Justice Ginsburg stated in another speech that the Justices are becoming more open to comparative and international law perspectives, and she asserted that “we are the losers if we do not both share our experiences with, and learn from others.” Justice Ginsburg brought this point to a Court opinion concurring in the Michigan race-conscious admissions case of Grutter v. Bollinger: “The Court’s observation that race-conscious programs must have a logical end-point accords with the international understanding of the office of affirmative action.” ii

Reactions

A From the Scholars Harold Koh has been a consistent voice for international law as part of U.S. law. Following the Lawrence and Atkins decisions, he expressed this view: What did the United States Supreme Court mean when it famously said, “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination”?23 Perhaps the Court was suggesting that, in an interdependent world, United States courts should not decide cases without 22 23

Adam Liptak, From 19th-Century View, Desegregation Is a Test, ny Times (Nov. 9, 2009), http://www.nytimes.com/2009/11/10/us/10bar.html. Quoting from The Paquete Habana, 175 U.S. 677, 700 (1900).

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paying “a decent respect to the opinions of mankind,” in the memorable words of the Declaration of Independence. The framers and early Justices understood that the global legitimacy of a fledgling nation crucially depended upon the compatibility of its domestic law with the rules of the international system within which it sought acceptance. Their recognition seems both prudent and sensible. Even today, for any nation consciously to ignore global standards not only would ensure constant frictions with the rest of the world, but also would diminish that nation’s ability to invoke those international rules that served its own national purposes.24 Koh’s point about the understandings of the early Founders and Justices found empirical support in a major study that went back over the entire 200-year history of the Court to recount the many instances in which the Court cited to foreign law.25 The authors concluded that citation to foreign law is most (if at all) justifiable when the U.S. Constitution asks the Justices to weigh whether a certain practice is reasonable, as it does in the Fourth Amendment, or whether it is unusual, as it does in the Eighth Amendment. In contrast, citation to foreign law is least justifiable when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence, or whether a federal statute violates American federalism rules, as it was asked to do in Printz v. United States.26 I would quibble somewhat with this conclusion because the Lawrence reliance on “deeply rooted traditions” is not critical to determining whether a particular aspect of human liberty should be free of governmental constraint. I might even hope that one day there will be enough examples of federalism around the world that guidance on the best approaches to federal structures could be found from many sources, but that is a topic for another day. One of the strongest expressions of support for this view of the normative uses of other opinions is this statement by Gerald Neuman: 24 25

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Harold H. Koh, International Law as Part of Our Law, 98 Am.J. Int’lL. 43 (2004). Steven G. Calabresi & Stephanie Dotson Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, 47 Wm. & Mary L. Rev. 743 (2005). Id. at 755–756.

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Is international law “irrelevant” to constitutional interpretation in the United States? How could that be? The arguments for categorical ignorance of international law in constitutional adjudication play on exaggerated fears: fear of foreign domination, fear of judicial activism, fear of the unknown. The claim of irrelevance depends on a false dichotomy between excluding international law from judicial consideration and allowing foreign institutions to control constitutional meaning.27 One rather counter-intuitive support for the practice is this by Professor Benvenisti of Tel Aviv University and holder of the enviable title of Global Professor of Law at nyu, who argues that: the new jurisprudence is part of a reaction to the forces of globalization, which are placing increasing pressure on the different domestic branches of government to conform to global standards. This reaction seeks to expand the space for domestic deliberation, to strengthen the ability of national governments to withstand the pressure brought to bear by interest groups and powerful foreign governments, and to insulate the national courts from intergovernmental pressures. For this strategy to succeed, courts need to forge a united judicial front, which entails coordinating their policies with equally positioned courts in other countries. [Thus], recourse to these sources is perfectly legitimate from a democratic theory perspective, as it aims at reclaiming democracy from the debilitating grip of globalization.28 Professor Benvenisti simultaneously asserts that the U.S. Supreme Court will resist the trend because it does not need the legitimacy of opinions from other nations. Directly counter to Professor Benvenisti’s assertion are several commentators who decry the Court’s references to foreign law as being destructive of American democratic principles. First is an article that divides the uses of foreign sources into “expository, empirical, and substantive” categories. Professor Joan Larsen concludes that

27 28

Gerald L. Neuman, The Uses of International Law in Constitutional Interpretation, 98 Am. J. Int’l L. 82 (2004). Eyal Benvenisti, Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts, 102 Am. J. of Int’l Law 241, 242 (2008).

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both the expository and empirical uses of foreign and international materials are easily justified. Yet the Rehnquist Court’s approach to using foreign and international law to supply substantive meaning to the Constitution (which I call “moral fact-finding”) is more problematic. The Court has offered no justification for employing this technique. Nor have scholars provided explanations that satisfy. Ultimately, I conclude that the moral fact-finding approach remains without constitutional justification.29 Of course, that leads to the question of whether there is any point in expository or empirical information if it does not have any role in substantive decision processes. The arguments for why a court should listen to opinions from other lands have been summarized above by Justices Breyer, O’Connor, Ginsburg, and Professors Koh and Newman. As Calabresi & Zimdahl note, the substantive usage is germane to issues such as “cruel” or “reasonable” and less so with respect to issues of American traditions or federalism. On the outspoken side of Justice Scalia is the assertion from Professor Zachary Larsen that reliance upon foreign and international law in construing constitutional provisions for purposes of judicial review should be rejected,[because it] undermines American sovereignty. Reasoning from the indisputable foundation that the structure of the Constitution requires a government that is responsible to the people, this paper argues that the rising practice of reliance upon foreign sources in judicial review is antithetical to popular sovereignty and, on that basis alone, it must be rejected in constitutional interpretation, outside of the limited role of defining international legal terms that have been incorporated into the document. This objection…is one that can be appreciated equally by constitutional scholars from both non-originalist and originalist interpretive approaches, both of which acknowledge the aspect of popular sovereignty in the constitutional design.30

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Joan L. Larsen, Importing Constitutional Norms from a Wider Civilization: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L. J. 1283, 1285 (2004). Zachary Larsen, Discounting Foreign Imports: Foreign Authority in Constitutional Interpretation and the Curb of Popular Sovereignty, 45 Willamette L. Rev. 767, 769 (2009).

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But it is simply not true that popular sovereignty is determinative of constitutional principles. Indeed, if it were not for protection of minority interests, there would be no need for written constitutional guarantees nor even for courts themselves. If majority will were always determinative, there would be no room for constitutional judicial review at all. Neither Justice Scalia nor any of his supporters explains how merely listening and paying attention to arguments from multiple sources undermines American values or subjects domestic policy to foreign will. I won’t go so far as agreeing that following international law is necessary for protection of democracy, but as a rational being I would be very suspicious of any argument that exhorts closing one’s mind to potentially persuasive reason. B From Legislators31 In many ways more interesting than the measured and thoughtful reactions of legal scholars has been the reactions of our esteemed politicians at both state and federal levels. Fueled by a radical anti-jihadist group calling itself the United American Committee, a group of Congressmen introduced a bill to prohibit the use of foreign or international law in either state or federal courts. The movement spread across the U.S. as bills were introduced in about 20 state legislatures, most of them attempting to ban the application of Shari’a specifically but some more broadly attacking foreign or international law. First, let us throw out rather quickly the idea that Congress could prohibit the “reliance on” any particular law in any proceeding. How is “reliance” to be determined? It is certainly true that Congress is the law-making body and can dictate the rules of decision for federal courts in matters within the competence of Congress. But interpretation of the law is “emphatically the province and duty of the judiciary.” “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.” In a case from the Civil War era, Congress attempted to decree that a Presidential pardon to a former rebel soldier was equivalent to a finding of treason and would result in forfeiture of property. The Supreme

31

I owe a debt to my colleague Jonathan Entin of Case Western who reminded me of the opinion of my former dean and close friend Hon. Scott Matheson of the Tenth Circuit, which I will deal with below. Jonathan is covering the legislative issues more thoroughly in another paper, so I will give only a passing glance at those issues here.

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Court held that this invaded not just the province of the President but the province of the judiciary in determining the effect of a pardon.32 In 2010, Oklahoma voters approved (70% in favor) this amendment to the State Constitution: The [state] Courts, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. The Tenth Circuit held the amendment to be an unconstitutional establishment of religion under the federal First Amendment.33 Whenever state law favors one religion over another, it can do so only in pursuit of a “compelling state interest.” The only concern that the state brought forward as justification was that “Oklahoma certainly has a compelling interest in determining what law is applied in Oklahoma courts.” To this facile argument, the court most politely replied: Oklahoma’s asserted interest is a valid state concern. But this general statement alone is not sufficient to establish a compelling interest for purposes of this case. Appellants do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma.34 The state also tried to assert that “Shari’a” was used only as an example of the use of any religious law in the state courts. Again, attempting to take this 32 33 34

United States v. Klein, 80 U.S. 128 (1872). Awad v. Ziriax, 670F.3d 1111 (10th Cir. 2012). Id. at 1130.

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a­ rgument seriously and not as the charade that it so transparently was, the court responded that if we substituted the word “religions” for “cultures,” the amendment would prohibit Oklahoma courts from “look[ing] to the legal precepts of other…religions.” The word “other” implies that whatever religions the legislature considered to be part of domestic or Oklahoma culture would not have their legal precepts prohibited from consideration, while all others would.35 Finally, one might wonder about the prohibition on the use of “international law” in the state courts. In a footnote, the court dealt with that aspect or the case: Appellants raised the issue of severability of the Sharia law portions of the amendment for the first time to this court in post-oral argument supplemental briefing. Their argument consisted of one sentence and cited no authority, stating that if this court decides the Sharia law provisions in the amendment render the amendment invalid, “the court should simply treat the explicatory example as surplusage, and strike it.” Because this issue has not been adequately briefed, we do not address it.36 Other states are considering legislation to prohibit the use of international or foreign law, so we should think at least briefly about the implications of such measures. Do they unconstitutionally interfere with the judicial independence of the courts:? The Mississippi Legislature in February 2015 voted to ban use of foreign law in state courts. In August 2013 North Carolina passed the Family, Faith, and Freedom Protection Act of 2013, which purports to prevent courts from applying foreign law in divorce, alimony and child custody actions. Michigan and Montana are also considering similar legislation. Some of the rationale for these laws attempts to take them out of the realm of anti-Muslim sentiment by pointing to one unusual case out of New Jersey in which a trial judge ruled that a Muslim man was not guilty of rape of his wife because the defendant’s mental state was such that he thought he was carrying out a lawful practice. This ruling was reversed on 35 36

Id. at 1129. Id. at 1132 n.16.

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appeal but it has served as the titular justification for the anti-Sharia laws. Following the Tenth Circuit holding, however, most of the state bills have eliminated reference to religious law and focused solely on international or foreign law. As mentioned above, it is surely the province of the legislature to enact the law. But in Chief Justice Marshall’s famous words, It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule.37 If we apply that message to the proposed legislation, it could prevent the legislature from eliminating any body of information from the Court’s arsenal of interpretation. That statement cries out for a little more explication. Marshall was describing interpretation of the Constitution’s application to a legislative enactment. But what if the issue before the Court is not one of validity of a statute but simply an issue of legislative interpretation? For example, is waterboarding torture? Ignoring the fact that it was found to be a violation of prisoner rights in the case of one Texas sheriff, and that the U.S. found that Japanese camp commanders had tortured U.S. prisoners in this fashion, the famous Yoo Memorandum and its follow-ups excluded “simulated drowning” from the definition of torture. So if a waterboarding case were ever to come before a federal court as a prosecution under the U.S. statute against torture, and our hypothetical interpretation statute were in place, could the court look to the holdings of other courts (such as the echr and icty) to determine the meaning of torture? Preventing a court from using all the tools at its disposal for interpretation of the law certainly runs the risk of invalid interference with the “province and duty” of the judiciary. In addition to interfering with judicial independence, these proposed statutes seem rather impossible to enforce. What does it mean to “look to” or to “consider” international law? Indeed, they would be insisting that a judge do an impossible task by putting a relevant bit of information out of her mind. The nonsensical nature of trying to tell anyone what he or she may “consider” should alone be enough to render these statutes invalid. 37

Marbury v. Madison, 5 U.S. 137, 177 (1803).

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Some Ordinary Uses – and One Extraordinary Use – of Foreign and International Law

Andrea Bianchi, Professor of International Law, Graduate Institute of International Studies in Geneva, and the Catholic University of Milan, has done a wonderful job of discussing the many uses of foreign and international law in U.S. courts in cases other than the individual rights disputes highlighted here.38 Thus, for current purposes, it should be sufficient merely to refer to that article and to mention some of the ways in which external law enters domestic courts. First, there is the obvious category of transnational disputes in which the law of another nation or an international convention is at the heart of the controversy. In these instances, the courts perform the routine task of applying that law to the best of their ability, sometimes being required to call on an expert in the other nation’s law and often having difficulty with the issue of which law applies (what we call “choice of law”). Second is a category that bedeviled American courts for several decades before its partial resolution by the Supreme Court. Congress has power to regulate interstate and foreign commerce as well as to define offenses against the “law of nations.” In addition, the judicial power of the federal courts extends to a number of headings of what we call “diversity jurisdiction,” such as disputes between citizens of different States or a dispute between a State and a citizen of another State. But that heading of jurisdiction does not include disputes between citizens of other nations. Nevertheless, the very First Congress passed a statute known as the Alien Tort Claims Act,39 which allowed federal courts to take jurisdiction of suits “by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The only way to justify adding this category to the federal courts’ caseload would be to provide for federal law to govern the dispute. But what law would that be? Could foreign or international law be considered federal law for this purpose? This dilemma led to a serious question about the ability of an alien to sue another alien in U.S. courts for violations of humanitarian law. In Filartiga v.

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Andrea Bianchi, International Law and us Courts: The Myth of Lohengrin Revisited, 15 Eur. J. Int’lL. 751 (2004). 39 28 u.s.c. § 1350 (“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”).

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Pena-Irala,40 the plaintiff citizens of Paraguay sued a Paraguayan official for torturing and killing their son and brother. The atca seemed to provide jurisdiction over the action but because Article iii does not provide for diversity jurisdiction between two aliens, the statute would not be valid unless it applied to a suit that “arises under” federal law. Treaty law would be such law but treaties very seldom create private rights of action. Therefore, the question was whether the “law of nations” was federal law that would support subject matter jurisdiction. The Second Circuit in Filartiga held that “an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.”41 Four years later, Tel-Oren v. Libyan Arab Republic42 produced a badly splintered court in what Judge Edwards called “an area of the law that cries out for clarification by the Supreme Court.” The Tel-Oren case was brought by survivors and representatives of victims of an attack on a bus in Israel in 1978. Two of the many defendants were Libya and the plo, who were alleged to have acted in complicity in carrying out the attack. The three judges on the panel could agree on only a terse per curiam statement affirming the dismissal of the action by the district court. Each wrote a separate concurring opinion. Judge Edwards argued that international law could supply the rule of decision for a claim of torture but not for murder.43 Libya was not alleged to have tortured anyone and would have enjoyed sovereign immunity at the time. The plo was “not a recognized member of the community of nations” and thus was not subject to the rules and conventions on torture.44 Nor did Judge Edwards think that international law at the time uniformly condemned acts of terrorism.45 40 41 42 43

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630F.2d 876 (2d Cir. 1980). Id. at 880. 726F.2d 774 (D.C. Cir. 1984). Id. at 781: Judge Kaufman characterized the torturer in Filartiga as follows: “Indeed, for purposes of civil liability, the torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind.” Filartiga, 630F.2d at 890. The reference to piracy and slave-trading is not fortuitous. Historically these offenses held a special place in the law of nations: their perpetrators, dubbed enemies of all mankind, were susceptible to prosecution by any nation capturing them. Id. at 796 (“While I have little doubt that the trend in international law is toward a more expansive allocation of rights and obligations to entities other than states, I decline to read section 1350 to cover torture by non-state actors, absent guidance from the Supreme Court on the statute’s usage of the term ‘law of nations.’”). Id. (“I cannot conclude that the law of nations – which, we must recall, is defined as the principles and rules that states feel themselves bound to observe, and do commonly

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Judge Bork insisted that international law did not recognize a private right of action for either torture or murder. Thus, unless Congress created a right of action, none would exist as a matter of federal law. Judge Edwardsʼ response to this argument was that international law states the norms but leaves to each nation the methods of protection, whether through civil suit or otherwise. Judge Robb would have declared the whole dispute to be a political question lacking in judicially manageable standards. The Supreme Court did not accept Judge Edwardsʼ plea for clarification until 30 years later, although Congress did to a limited extent. The Torture Victims Protection Act (tvpa)46 in 1991 explicitly created a civil action for official torture or “extrajudicial killing” but only when the action is taken “under color of law of a foreign nation.” The civil remedy usually known as the AntiTerrorism Act,47 was added in 1992. In 1996, Congress adopted amendments to the Foreign Sovereign Immunity Act (fsia) which takes away sovereign immunity from designated foreign state sponsors of terrorism for acts of torture, extrajudicial killing, aircraft sabotage, hostage taking, or material support of terrorist acts.48 Finally, in 2004 the Supreme Court addressed the basic Filartiga issue in Sosa v. Alvarez-Machain.49 The plaintiff Alvarez-Machain was a doctor who was accused of having assisted in the torture and eventual death of dea agent Enrique Camarena. Alvarez was abducted by another Mexican national, Jose Sosa, who handed him over to U.S. agents for trial in the U.S. After he was acquitted of the torture and murder, he brought suit against the U.S. and against Sosa. With regard to the claim under the atca against Sosa, the Court decided that Congress would not have done an empty act by creating a jurisdictional provision with no law to apply. Therefore, although the ats is a jurisdictional statute creating no new causes of action, the reasonable inference from the historical materials is that the statute was intended to have practical effect the moment it became law. The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for o­ bserve – outlaws politically motivated terrorism, no matter how repugnant it might be to our own legal system.”). 46 Codified as a note to 18 u.s.c. § 1350 (2007). 47 18 u.s.c. § 2333 (2007). 48 28 u.s.c. § 1605(a)(7). 49 542 U.S. 692 (2004).

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the modest number of international law violations with a potential for personal liability at the time.50 Despite this acceptance of “the law of nations” as common law in federal courts, the Supreme Court emphasized in several ways that the federal courts should be “extremely cautious” about recognizing torts that are not found in U.S. federal law. The Court referred to congressional intent in 1789 as having likely been based on “torts corresponding to Blackstone’s three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy.” Given the propensity of federal common law to stray into areas commonly reserved to the states, the Court went on to state that there are good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind. Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.51 With these cautions in mind, the Court eventually decided that Alvarez’ brief detention and abduction for trial was not a violation of the “law of nations.” A third example of how international law can enter U.S. courts is through the treaty power. The most famous example of how the treaty power can expand the federal domain is the Migratory Bird Treaty Act. An earlier version of the statute, making it unlawful to kill or interfere with a whooping crane, an endangered species, had been declared unconstitutional by lower federal courts.52 Undaunted, the federal government entered into a treaty with Canada to protect migratory birds, Congress repassed the statute, and the ­Supreme Court upheld the statute as a valid exercise of the treaty power.53 So long as the subject matter of a treaty is within the scope of valid negotiations between or among nations, a statute passed to enforce it will be with the power of Congress. That brings us to the question of whether a treaty is incorporated into federal law by its very enactment or does it need legislation to give it the force of 50 51 52 53

Id. at 723. Id. at 725. United States v. Shauver, 214 Fed. Rep. 154; United States v. McCullagh, 221 Fed. Rep. 288. Missouri v. Holland, 252 U.S. 416 (1920).

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law – this is the problem of self-enforcing treaties. In one of the cases out of Guantanamo Bay, the Supreme Court held that the military commissions were not properly constituted under the requirements of the Uniform Code of Military Justice.54 In addition, Justice Stevens and three others would have added two more holdings: (1) that the commissions did not have jurisdiction over a conspiracy to provide material support to a terrorist organization because that is not a recognized offense under the “law of war,”55 which was the statutory basis for the commissions and (2) that the commissions violated common ­article 3 of the Geneva Conventions, which requires that a person involved in an armed conflict “not of an international character” and accused of a crime, is entitled to be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” ­Because the military commissions were specially created for these defendants and because they lacked some basic procedural guarantees, to the plurality they were in violation of the Conventions.56 Justice Kennedy concurred that the commissions were in violation of the ucmj on the interesting ground that common article 3’s requirement of a “regularly constituted court” was part of the “law of war” within the ucmj and that the military commissions were not in compliance with the ucmj’s insistence that military commissions comply with court-martial procedures “insofar as practicable.”57 Having reached that conclusion, he did not reach either the validity of the conspiracy charge nor the question of whether the accused had the right to be free of secret evidence.58 In numerous other cases, notably those involving the abduction of defendants from other countries in apparent violation of extradition treaties,59 and the case of state courts’ failures to comply with the Vienna Convention on Consular Affairs,60 the Court has held that most treaties are not self-executing.

54 55

Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Id. at 610 (“[T]he only ‘conspiracy’ crimes that have been recognized by international war crimes tribunals (whose jurisdiction often extends beyond war crimes proper to crimes against humanity and crimes against the peace) are conspiracy to commit genocide and common plan to wage aggressive war, which is a crime against the peace and requires for its commission actual participation in a ‘concrete plan to wage war.’”). 56 Id. at 631–632. 57 10 u.s.c. § 836. 58 548 U.S. at 654–655. 59 United States v. Alvarez-Machain, 504 U.S. 655 (1992). 60 Medellin v. Texas, 552 U.S. 491 (2008).

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Concluding Remarks

I began this discussion by questioning whether turning a blind eye to other nations and other jurists was simply silly. Of course, that is not really the underlying issue of the debate. For those who believe that constitutional principles were established in 1787 and 1791, there is no room for importing standards from any source whatever. Others believe that changing norms are necessarily implicated in interpretation of phrases such as: “due process” “cruel and unusual” “unreasonable” “liberty” “association” “equal protection” For the latter group, sometimes described as adhering to a “living constitution,” any source may be helpful in discerning what the current norms for individual rights should be. And especially if there is an international consensus on an issue, that consensus potentially could be persuasive. The U.S., with its claim to the “world’s sole remaining superpower,” is an extraordinarily parochial place. Perhaps some of our strength is also our weakness. We are blessed with a continent of vast natural resources, three centuries of immigration by the best and brightest of other nations, and a physical isolation by two oceans. That isolation has made it possible for serious people to argue that we have a unique set of values that should not be “corrupted” by importation of values from other nations. But of course that isolation is rapidly dissipating. The globalization of this century is a commonplace theme. There is little question that reference to foreign and international law will continue and accelerate in U.S. courts. The only questions really are the degree to which some of those other values will be explicitly incorporated and the speed at which these developments will occur.

chapter 19

Use of Foreign Law by the U.S. Supreme Court Jonathan L. Entin The United States Supreme Court long has made use of foreign and international law in its decisions.1 To understand the recent American debate about foreign law in domestic courts, therefore, we must define the problem. Courts cite authorities for any of several purposes. A citation might indicate that the court has relied on the source as authority for a decision. For example, a lower federal court or a state court might cite a dispositive decision by the U.S. ­Supreme Court on an issue as the basis for its own ruling. Alternatively, a court might cite a ruling by a court in another jurisdiction as influential or persuasive but not as binding. State courts often consult decisions by courts in other states when there is no controlling authority at home; similarly, federal courts of appeals often look to rulings in other circuits when there is no binding precedent in their own circuit. In both situations, the “foreign” sources have only persuasive authority and can influence but not bind the court. Finally, a judicial citation might be symbolic; the court might not treat the source as either binding or persuasive but might refer to it for other reasons. A careful look at the cases that have generated concerns about the role of foreign law in American cases will show that the Supreme Court has not relied on legal authority from outside the United States as the basis for any decision. Indeed, every single case would have come out exactly the same way even if the Court had not referred to any foreign or international legal sources. This paper will review the recent decisions to illustrate this claim. Before addressing those rulings, however, we will take a brief look at another controversy in which critics attacked the Supreme Court for supposedly basing a landmark ruling on inappropriate authorities. In the school segregation cases, the target was social science evidence rather than foreign legal sources, but the debate can help to put the recent flap about foreign and international law into ­broader perspective.

1 See Andrea Bianchi, International Law and us Courts: The Myth of Lohengrin Revisited, 15 Eur. J. Int’l L. 751 (2004); Stephen G. Calabresi & Stephanie Dotson Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty, 47 Wm. & Mary L. Rev. 743 (2005).

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School Segregation and Social Science

In Brown v. Board of Education,2 the Supreme Court unanimously held that laws requiring racially segregated schools were unconstitutional.3 Footnote 11 of Chief Justice Earl Warren’s opinion cited a number of sociological and psychological studies about the effects of segregation.4 Segregationists seized on footnote 11, citing it as conclusive evidence that Brown was illegitimate and without basis in law. Perhaps the leading example was the so-called Southern Manifesto, signed by the overwhelming majority of members of Congress from the former Confederate states. The Manifesto claimed that the decision was “a clear abuse of judicial power” which rested on nothing more than the justices’ “personal political and social ideas” and ignored “the established law of the land.”5 Criticism of footnote 11 was not confined to segregationists. Some prominent legal scholars who strongly opposed segregation also expressed concern over the Court’s invocation of social science research. Edmond Cahn warned of the “genuine danger” that Brown would be perceived as resting in whole or principal part on social science, which in turn would subject the meaning of the Constitution to instability whenever new research raised questions about the continuing vitality of the studies cited in the footnote.6 Herbert Wechsler raised similar concerns, observing that relying on social science meant that the Court had failed to advance a neutral principle in support of its conclusion.7 2 347 U.S. 483 (1954). 3 In a companion case, the Court reached the same conclusion about federal laws requiring segregated schools. Bolling v. Sharpe, 347 U.S. 497 (1954). 4 Brown, 347 U.S. at 494–495 n.11. The Court also quoted findings by the lower courts, based on expert testimony presented at trial, that legally imposed segregation caused substantial and long-lasting harm to African American children. Id. at 494 & n.10. For ease of exposition, subsequent references to “footnote 11” also encompass the Court’s invocation of the trial testimony by social science experts. 5 102 Cong. Rec. 4459–4460 (1956) (Senate); 102 Cong Rec. 4515–4516 (1956) (House). The signers included such prominent figures as J.W. Fulbright, long-time chair of the Senate Foreign Relations Committee, and Wilbur D. Mills, who chaired the House Ways and Means Committee for nearly two decades. Among the few members who did not sign the Manifesto were Senate Majority Leader (and future President) Lyndon B. Johnson, House Speaker Sam Rayburn, and Sen. Albert A. Gore, Sr., the father of future Vice President Al Gore. Several lower-profile members of the House who refused to sign were defeated for reelection. See Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 397 (2004). 6 Edmond Cahn, Jurisprudence, 30 N.Y.U. L Rev. 150, 157–158 (1955). 7 Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 32–33 (1959).

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Although a handful of school districts did seek to defend segregation after Brown on the basis of evidence contrary to the findings of the social science sources cited in footnote 11,8 those efforts proved unavailing. The Supreme Court never entertained an attack on the social science findings cited in Brown, and lower courts did not even allow the introduction of social science evidence that purported to challenge the underpinnings of Brown.9 Moreover, the Supreme Court quickly applied Brown in a series of summary rulings that invalidated racial segregation in public parks, buses, golf courses, and beaches, contexts in which the social science findings in footnote 11 could not have controlled the outcome or even had anything to do with the issues at hand.10 In short, social science research did not lead the Court to strike down segregation in Brown. At most, social science research was an additional factor that supported the result that the Court reached on the basis of legal reasoning, a result that would have been exactly the same without footnote 11. As Charles Black observed in defending the Brown opinion, disparagement of the Court’s invocation of social science was a “canard if it means that anything like principal reliance was placed on the formally ‘scientific’ authorities, which are relegated to a footnote and treated as merely corroboratory of common sense.”11 Indeed, even the scholarly critics doubted that Brown rested on sociology and psychology. Professor Cahn viewed such arguments as “a dangerous myth.”12 And Professor Wechsler found it “hard to think that the judgment really turned upon the [social scientific] facts.”13 In many respects, the debate over the role of social science in Brown is analogous to the more recent controversy over the Supreme Court’s use of foreign and international legal sources. We now turn to that subject. Other scholars responded to these criticisms and strongly defended the Court’s Brown decision. E.g., Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale l.j. 421 (1960); Louis H. Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1, 31 (1959). 8 E.g., Stell v. Savannah-Chatham County Bd. of Educ., 220 F. Supp. 667 (n.d. Ga. 1963), rev’d, 333 F.2d 55 (5th Cir. 1964); Youngblood v. Bd. of Pub. Instruction, 230 F. Supp. 74 (n.d. Fla. 1964). 9 Mark G. Yudof, Equal Educational Opportunity and the Courts, 51 Tex. L. Rev. 411, 437–442 (1973). 10 New Orleans City Park Improvement Ass’n v. Detiege, 358 U.S. 54 (1958) (municipal parks); Gayle v. Browder, 352 U.S. 903 (1956) (city buses); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (municipal golf courses); Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955) (public beaches). 11 Black, supra note 7, at 430 n.25. 12 Cahn, supra note 6, at 157. 13 Wechsler, supra note 7, at 33.

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Foreign Law in the Supreme Court

As noted above, the U.S. Supreme Court has been deciding cases involving foreign and international law from its earliest years.14 Therefore, it should come as no surprise that it recently has dealt with such issues as the scope of Common Article 3 of the Third Geneva Convention,15 the effect of a ruling by the International Court of Justice on the validity of a death sentence imposed by a state court,16 or the scope of the Alien Tort Statute.17 The justices might take different approaches to these issues, but all agree that the Court can and should address such questions when properly presented. The recent debate in the U.S. has focused on the citation of or reference to foreign and international law in cases involving domestic legal issues, so it would be helpful to review the leading modern cases to put the references to foreign and international law into broader context. Most of these cases involved the meaning of the Eighth Amendment’s prohibition of “cruel and unusual punishments,” where the Court in modern times has emphasized evolving standards of decency and has debated how to determine when those standards have changed sufficiently to justify striking down previously accepted legal sanctions. The first of those cases was Trop v. Dulles,18 which in 1958 invalidated a statute that revoked the citizenship of anyone convicted of “deserting the military or naval forces of the United States during time of war.”19 Before invoking the “virtual unanimity” of “the civilized nations of the world,”20 Chief Justice Warren’s plurality opinion devoted almost a dozen pages to purely domestic legal analysis.21 Warren began by interpreting the statutory language as not reaching every “shirking” of a duty of citizenship but only voluntary renunciation or abandonment,22 and he was prepared to base the judgment on this ground alone.23 Then he rejected, using exclusively domestic sources, the government’s argument that revocation of citizenship was not penal in nature.24 Next 14 See supra note 1 and accompanying text. 15 Hamdan v. Rumsfeld, 548 U.S. 557 (2006). 16 Medellin v. Texas, 552 U.S. 491 (2008). 17 Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013). 18 356 U.S. 86 (1958). 19 Id. at 88 n.1. 20 Id. at 102. 21 Id. at 91–102. 22 Id. at 92–93. 23 Id. at 93. 24 Id. at 95–99.

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he invoked “the Anglo-American tradition of criminal justice,” including the English Declaration of Rights and the Magna Carta (sources that are generally agreed even by critics of reliance on foreign and international law to provide valuable insight into the meaning of American constitutional guarantees),25 as well as the dissenting opinion in the lower court, which in turn had relied heavily on a student Comment published in a leading law review,26 before concluding that revocation of citizenship for desertion “is offensive to cardinal principles for which the Constitution stands.”27 In short, the invocation of foreign law in Trop supported the result but was not crucial to the outcome. Any doubt on this score can be resolved by examining the separate opinions. Three concurring justices, in two separate opinions, supported the judgment without mentioning any foreign legal authorities (including the English sources discussed above).28 Moreover, although this was a 5-4 decision, the dissenters never criticized the invocation of foreign law in their spirited rejection of the decision. In fact, those dissenters themselves relied on the laws of “many civilized nations” to support their view that revocation of citizenship for desertion during wartime was consistent with the Constitution.29 Nearly two decades later, Coker v. Georgia30 held the death penalty to be unconstitutional for the rape of an adult woman who survived the ordeal. Only one sentence in the text of the plurality opinion and a single footnote containing two sentences focused on the laws of other nations.31 Two other justices agreed that capital punishment was unconstitutional in these circumstances but reached that conclusion without reference to foreign law.32 A third justice concurred in the judgment as applied to the facts of that case but dissented from the general proposition that the death penalty never could be imposed for the rape of an adult woman who was not killed as a result of the assault.33 Neither that opinion nor a lengthy dissenting opinion that joined issue on every aspect of the analysis criticized the plurality for referring to the practices of 25 Id. at 100. 26 Id. at 101. 27 Id. at 102. 28 See id. at 104 (Black, J., joined by Douglas, J., concurring); id. at 105 (Brennan, J., concurring). 29 Id. at 126 (Frankfurter, J., joined by Burton, Clark & Harlan, JJ., dissenting). 30 433 U.S. 584 (1977). 31 Id. at 595–596 & n.10 (opinion of White, J.). 32 See id. at 600 (Brennan, J., concurring in the judgment); id. (Marshall, J., concurring in the judgment). 33 Id. at 601 (Powell, J., concurring in the judgment in part and dissenting in part).

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other nations.34 In other words, Coker’s conclusion does not depend on foreign law. The reference to other countries is almost an afterthought. The Coker footnote was cited in Enmund v. Florida,35 which in 1982 held that the Eighth Amendment precludes the imposition of capital punishment for felony murder. The felony murder rule imposes legal responsibility for homicide on an accomplice who is present when another person commits murder. A footnote in Enmund observed that the felony murder rule “has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe.”36 It is difficult to believe that this footnote was crucial to the Court’s conclusion, which was supported by fourteen pages of analysis that focused exclusively on domestic law.37 This inference is consistent with the approach taken in a vigorous dissenting opinion, which faulted the majority’s analysis at almost every turn but never suggested that the decision rested on improper reliance on foreign legal authority.38 The Court also has addressed the constitutionality of the death penalty for juvenile offenders in three different cases. First, Thompson v. Oklahoma39 held in 1988 that the Eighth Amendment forbids imposition of capital punishment on persons who were below 16 years of age at the time of the offense. One paragraph in eighteen pages of analysis in the plurality opinion focused on the law and practice relating to execution of juvenile offenders in Anglo-American and Western European nations.40 The balance of the discussion focused on domestic legal authority.41 A concurring opinion that provided the fifth vote to set aside the death sentence imposed on a defendant who was 15 years old at the time of the crime focused more narrowly on the precise facts of the case but also noted that the United States had ratified a treaty that sets a minimum age of 18 for certain capital offenders.42 Justice Scalia’s dissent devoted one ­footnote to excoriating the plurality for considering the standards of other 34 See id. at 604–622 (Burger, C.J., joined by Rehnquist, J., dissenting). 35 458 U.S. 782, 795 n.22 (1982). 36 Id. at 796 n.22. 37 See id. at 788–801. 38 See id. at 810–826 (O’Connor, J., joined by Burger, C.J., and Powell & Rehnquist, JJ., dissenting). 39 487 U.S. 817 (1988). 40 Id. at 830–831 (plurality opinion of Stevens, J., joined by Brennan, Marshall & Blackmun, JJ.). 41 See id. at 821–829, 831–838. The plurality opinion also contains six appendices that focus exclusively on various types of state laws about the minimum age for such activities as voting, jury service, driving, and marriage. See id. at 839–848. 42 Id. at 851 (O’Connor, J., concurring in the judgment).

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nations, which he rejected as “totally inappropriate,”43 and part of another to rejecting the treaty as having “no significance.”44 The following year, in Stanford v. Kentucky,45 the Court rejected an Eighth Amendment challenge to the death penalty for 16- and 17-year-old offenders. The dissenting opinion devoted two paragraphs in more than twenty pages of analysis to analogous laws in other nations,46 which the majority dismissed in a footnote as irrelevant to establishing the Eighth Amendment rule.47 Stanford was repudiated in Roper v. Simmons.48 This 2005 ruling found sufficient evidence that standards of decency had evolved to the point that the Eighth Amendment prohibited the execution of defendants who were below the age of 18 at the time of their offense.49 The Court devoted Part iv of its Roper opinion to examining the widespread rejection of the juvenile death penalty by the international community.50 This discussion prompted Justice Scalia, author of the principal dissent, to devote several pages to denouncing any reliance on foreign law in interpreting the Eighth Amendment.51 Meanwhile, Justice O’Connor, who dissented solely on the basis of insufficient evidence of a domestic consensus against the death penalty for juveniles, objected to Scalia’s absolute rejection of foreign law, noting that “this Nation’s evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries.”52 The structure of the majority opinion in Roper makes clear that the ruling rested on domestic legal analysis and that the discussion of foreign law serves at most what Professor Black called a “corroboratory” function when assessing the role of social science evidence in Brown.53 Foreign law does not appear in the Roper opinion until Part iv. The primary analysis covers a dozen pages in Part iii, and that portion of the opinion focuses only on domestic sources that focus on the emergence of a national consensus against imposing 43 Id. at 868 n.4 (Scalia, J., joined by Rehnquist, C.J., and White, J., dissenting). 44 Id. at 867 n.2. 45 492 U.S. 361 (1989). 46 Id. at 389–390 (Brennan, J., joined by Marshall, Blackmun & Stevens, JJ., dissenting). 47 Id. at 369 n.1. 48 543 U.S. 551 (2005). 49 The Roper Court did not explicitly overrule Stanford. Instead, Roper concluded that Stanford was “no longer controlling.” Id. at 574; see also id. at 575 (“Stanford should no longer control”). 50 Id. at 575–578. 51 Id. at 622–628 (Scalia, J., joined by Rehnquist, C.J., and Thomas, J., dissenting). 52 Id. at 605 (O’Connor, J., dissenting). 53 See supra text accompanying note 11.

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c­ apital ­punishment on juvenile offenders.54 That section does refer to the International Covenant on Civil and Political Rights, but only to rebut the state’s argument about the significance of a U.S. reservation to a provision forbidding capital punishment for juveniles. Subsequent domestic developments, the Court explained, undermined the claim of a lack of national consensus against executing defendants who were younger than 18 at the time of their offense.55 As if to avoid any doubt about the significance of the discussion of foreign law, Part iv explained that international practice, “while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”56 The Roper majority relied heavily on Atkins v. Virginia,57 a 2002 ruling that the Eighth Amendment prohibits the execution of mentally disabled offenders. One sentence in a single footnote refers to the “overwhelming[] disapprov[al]” in the international community of executing those with mental disabilities.58 That footnote also cited professional and religious groups as well as public opinion data. Dissenting opinions by Chief Justice Rehnquist and Justice Scalia condemned reliance on any of those sources.59 The majority opinion contained eleven pages of substantive legal analysis; all of that analysis, except for the sentence in the footnote described above, focused exclusively on domestic sources and authorities.60 It strains credulity to suggest that the decision turned in any way on that sentence. The only other Supreme Court case that has figured in the recent debate about foreign law was Lawrence v. Texas,61 which was decided in 2003. Unlike the Eighth Amendment cases discussed so far, Lawrence was a landmark gay rights ruling that struck down state laws prohibiting homosexual sodomy. 54

See 543 U.S. at 564–575. As in Thompson v. Oklahoma, the majority opinion has several appendices intended to demonstrate the existence of a national consensus relating to the execution of juvenile offenders. See id. at 579–587. 55 Id. at 567. 56 Id. at 578. 57 536 U.S. 304 (2002). 58 Id. at 316–317 n.21. 59 Id. at 322, 324–325 (Rehnquist, C.J., joined by Scalia & Thomas, JJ., dissenting) (criticizing the Court’s invocation of all of the sources in the majority’s footnote 21 and observing that “the viewpoints of other countries simply are not relevant” to determining the existence of “a national consensus”); id. at 347–348 (Scalia, J., joined by Rehnquist, C.J., and Thomas, J., dissenting) (deeming as “irrelevant” the approaches of other nations, “whose notions of justice are (thankfully) not always those of our people”). 60 Id. at 311–321. 61 539 U.S. 558 (2003).

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In reaching this conclusion, the Court overruled Bowers v. Hardwick,62 a 1986 decision that rejected a similar challenge to a Georgia sodomy statute. Justice Kennedy’s majority opinion in Lawrence did refer to foreign law, primarily the decriminalization of consensual same-sex conduct in the United Kingdom and a ruling to the same effect by the European Court of Human Rights.63 Justice Scalia, in the principal dissent, derided the majority’s invocation of foreign law as “meaningless dicta” that nevertheless was “dangerous.”64 Kennedy explained that the Court looked to the foreign sources to rebut suggestions in Bowers that homosexuality was widely condemned in Western Civilization and Judeo-Christian morality.65 Whatever the function of the references to foreign law in Lawrence, the majority opinion relied much more heavily on amicus curiae briefs relating to American history and law.66 Accordingly, it is not at all clear that the reference to foreign sources really affected the outcome. Lawrence gave rise to litigation about whether the Constitution protects a right to same-sex marriage. The Supreme Court answered that question in the affirmative just a few months ago in Obergefell v. Hodges.67 The majority opinion did not mention foreign law, but the principal dissent does allude to laws and policies around the world. Early in his dissenting opinion, Chief Justice Roberts wrote: [T]he Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the 62 478 U.S. 186 (1986). The Georgia Supreme Court later held that the law violated the right to privacy protected under the state constitution. Powell v. State, 510 S.E.2d 18 (Ga. 1998). Powell did not involve same-sex conduct but did arise from a consensual act, id. at 20; the court held that the state privacy right applied to all consensual sexual conduct in private places and involving persons of legal age. Id. at 26. 63 539 U.S. at 573, 576. 64 Id. at 598 (Scalia, J., joined by Rehnquist, C.J., and Thomas, J., dissenting). 65 Id. at 572–573. The majority opinion in Bowers rejected the constitutional claim as, “at best, facetious.” 478 U.S. at 194. Chief Justice Burger, writing separately, emphasized the ancient roots of prohibitions on homosexual conduct and cautioned against “cast[ing] aside millennia of moral teaching.” Id. at 197 (Burger, C.J., concurring). 66 See Lawrence, 539 U.S. at 567–568, 572. 67 135 S. Ct. 2584 (2015). Meanwhile, in 2013 the Court invalidated a statutory provision that forbade the federal government from recognizing the validity of a same-sex marriage even if the marriage was lawful in the state where it occurred. United States v. Windsor, 113 S. Ct. 2675 (2013). Foreign law was not mentioned in Windsor even though the marriage in question involved two American citizens from New York City and took place in Canada. Id. at 2682.

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Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?68 Several paragraphs later, Roberts added that marriage universally had been recognized as “the union of a man and a woman” and that the challengers had conceded that no society had permitted same-sex marriage before 2001.69 In sum, the U.S. Supreme Court has not “relied” on foreign law in any of these cases in the sense that it reached a conclusion based on foreign legal sources that it would not have reached had it used only domestic legal authorities. Whatever normative position one takes about the use of foreign law, the modern cases in which foreign and international sources have become points of contention use those sources in much the same way as the Court used the social science materials in Brown: as support for conclusions reached on the basis of conventional legal authorities.

Putting the U.S. Debate into Context

The controversy over foreign law in the Supreme Court stems from several sources. First, the debate has arisen primarily in cases involving the death penalty and the Eighth Amendment. The justices who have condemned the use of foreign legal authorities also have opposed the Court’s broadening of constitutional limitations on capital punishment. To some extent, attacking references to foreign law is part of a larger rhetorical strategy of rebutting all the arguments advanced by those who view the case differently. Chief Justice Rehnquist and Justice Scalia can be seen to have pursued this strategy in cases like Thompson, Stanford, Roper, and Atkins.70 This is not, however, a complete explanation. After all, Justice O’Connor, who occasionally objected to a more expansive reading of the Eighth Amendment, went out of her way in her Roper dissent to suggest the relevance of foreign law as a supplementary basis for decision when there was sufficient evidence of a national consensus.71 Second, the debate about foreign law implicates broader jurisprudential themes. Some of the most outspoken skeptics of foreign law believe strongly in bright-line rules rather than standards or balancing tests. They believe that 68 69 70 71

Obergefell, 135 S. Ct. at 2612 (Roberts, C.J., joined by Scalia & Thomas, JJ., dissenting). Id. See supra notes 43–44, 47, 51 & 59 and accompanying text. See supra note 52 and accompanying text.

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the Constitution and statutes should be interpreted according to the original public meaning of the text, and they also refuse as a matter of principle to consult legislative history because in their view only the text matters. Accordingly, rejection of foreign law in these cases might reflect a similar desire for clear rules of interpretation and decision. But this hypothesis also is insufficient. To be sure, the description in this paragraph captures Justice Scalia’s general approach.72 Unfortunately, Chief Justice Rehnquist, who consistently agreed with Justice Scalia in the cases discussed above, was not a consistent originalist or textualist. A prominent example of their divergent jurisprudential approaches is Morrison v. Olson,73 which upheld the constitutionality of the independent counsel law. Rehnquist wrote the majority opinion in that 7-1 decision, while Scalia apoplectically dissented. The chief justice took a decidedly functionalist or checks-and-balances approach to the claim that the law impermissibly deprived the President of executive power,74 whereas Scalia emphasized the necessity for strictly enforcing the separation of powers.75 It seems likely that the status of foreign law in the U.S. Supreme Court will continue to divide the justices. Meanwhile, the debate over foreign law has become an issue at the state level. The ongoing debate about foreign law in the Supreme Court undoubtedly has been a factor in this development, but two cases in New Jersey and another in Minnesota also have fueled the debate in the states. The most controversial of the state cases has been s.d. v. m.j.r.,76 where a New Jersey trial judge denied a restraining order to a Muslim woman who 72

See, e.g., District of Columbia v. Heller, 554 U.S. 570, 576–577 (2008) (focusing on the original public meaning of the Second Amendment); Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring in the judgment) (condemning legislative history as an illegitimate interpretive tool). 73 487 U.S. 654 (1988). 74 See, e.g., id. at 671–673 (declining to determine the constitutional line between “officers” and “inferior officers” under the Appointments Clause but finding that the independent counsel is an inferior officer who need not be appointed by the President); id. at 689–691 (expressing the Court’s “present considered view” that Congress may impose for-cause requirements for removing presidential appointees to the extent that such requirements do not unduly prevent the chief executive from carrying out his constitutional duties). 75 See, e.g., id. at 705 (Scalia, J., dissenting) (emphasizing that the Constitution vests “all of the executive power” in the President); id. at 708 (contending that upholding the independent counsel “effects a revolution in our constitutional jurisprudence”); id. at 715 (lamenting the demise of “our former constitutional system”). 76 2 A.3d 412 (n.j. Super. Ct. App. Div. 2010).

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had filed a domestic violence complaint after her husband subjected her to unwanted sexual relations even though the judge concluded that the woman had proved her claims of assault and harassment; the judge reasoned that the husband lacked the requisite criminal intent because he believed that his religion entitled him to have sex with his wife whenever he wanted.77 The Appellate Division of the New Jersey Superior Court promptly reversed this ruling, concluding that the husband’s conduct clearly violated the law and that his religious beliefs could not excuse him from liability.78 Furthermore, the wife had established her right to obtain a restraining order against the husband.79 On the other hand, in Odatalla v. Odatalla,80 the chancery division of the New Jersey Superior Court specifically enforced an agreement to pay a divorcing wife $10,000 that had been entered into as part of an Islamic marriage ceremony. The court reasoned that it could enforce the agreement because it was based on neutral principles of law rather than on religious doctrine.81 The agreement in question satisfied the requirements of New Jersey law for a valid contract, so the court could enforce it.82 The Minnesota case, Abd Alla v. Mourssi,83 involved a challenge to an arbitration award made by the arbitration committee of a local mosque. The parties had formed a partnership to buy and operate restaurants; the partnership agreement called for arbitration through a mosque.84 After the parties had a falling out, the arbitration committee ruled in Abd Alla’s favor. He later sought judicial enforcement of the award, while Mourssi moved to vacate the arbitration because it had been “procured by corruption, fraud or other undue means” and because the arbitration committee had “exceeded its authority.”85 The appellate court affirmed the trial court’s denial of the motion to vacate, explaining that Mourssi’s motion was untimely and that he could not qualify for an extension of time because he had failed to allege facts that, if proved, would constitute fraud, corruption, or other impermissible defects that would justify refusing to enforce the arbitration award.86 At no time did Mourssi suggest that the religious foundations of the arbitration process or decision undermined its 77 78 79 80 81 82 83 84 85 86

Id. at 418. Id. at 421–422. Id. at 428. 810 A.2d 93 (n.j. Super. Ct. Ch. Div. 2002). Id. at 95–96. Id. at 97–98. 680 N.W.2d 569 (Minn. Ct. App. 2004). Id. at 570. Id. at 571. Id. at 573–574.

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lawfulness, and neither the trial court nor the appellate court indicated that this might have been a plausible basis for challenging the award. Eventually, various groups sought to adopt rules to prevent the use of foreign law in American courts. The first example came in Oklahoma, where in 2010 voters approved a constitutional amendment that would have prohibited the state courts from “look[ing] to the legal precepts of other nations or cultures,” specifically including “international law or Sharia Law.”87 A federal district court entered a preliminary injunction to prevent the so-called Save Our State Amendment from taking effect, and the U.S. Court of Appeals for the Tenth Circuit affirmed that ruling. The appellate court reasoned that the amendment singled out one form of religious law for disfavored treatment and therefore violated the Establishment Clause of the First Amendment to the U.S. Constitution.88 Oklahoma’s Save Our State Amendment was vulnerable to attack because it singled out one particular form of religious law for opprobrium. More r­ ecently, legislators in other states have proposed different approaches to the issue. Eight states have e­ nacted ­measures designed to forbid state courts and agencies from considering foreign laws that do not protect rights that are protected by federal and state constitutions.89 These measures have yet to be tested in court, so it remains unclear whether they will have more than symbolic effect. They ban the use of foreign law only to the extent that foreign law violates rights protected by U.S. or state law.

⸪

Despite the controversy over foreign law, the U.S. Supreme Court never has relied on foreign or international law to reach a conclusion that was inconsistent with the result that would follow from relying exclusively on domestic legal authorities. In this sense, the arguments about foreign law are quite similar to the flap about the use of social science evidence in Brown v. Board of Education: 87 88 89

Awad v. Ziriax, 670 F.3d 1111, 1118 (10th Cir. 2012). Id. at 1128–1132. Those states are Alabama, Arizona, Kansas, Louisiana, Mississippi, North Carolina, Oklahoma, and Tennessee. See Ala. Const. art. i, § 13.50 (adopted 2014); Ariz. Rev. Stat. § 12-3103 (adopted 2011); Kan. Stat. § 60-5103 (adopted 2012); La. Rev. Stat. § 9:6001 (adopted 2010); Miss. Code § 11-63-1 (adopted 2015); N.C. Gen. Stat. § 1-87.14 (adopted 2013); Okla. Stat. tit. 12, § 20 (adopted 2013); Tenn. Code § 20-15-103 (adopted 2010). The Oklahoma statute was enacted after the Save Our State Amendment was struck down. Another state, South Dakota, passed a statute forbidding enforcement of religious law, although that measure does not single out any specific religion for disapproval. S.D. Codified Laws § 19-8-7 (adopted 2012).

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regardless of the wisdom of the Supreme Court’s invocation of such untraditional authority, reference to that authority had no discernible impact on the result. Perhaps this means that the foreign law debate is essentially symbolic, and even the recently adopted state restrictions on the use of foreign law probably will have relatively minor substantive effects.

chapter 20

The Foreign Party’s Choice Between Arbitration and Court Litigation Neil Andrews i

Introduction1

The received wisdom is that cross-border commercial disputes should be arbitrated, rather than litigated before the courts. However, it will be suggested here that this should be regarded as a rebuttable presumption, and not an ­invariably prudent preference. Sometimes it will be better to proceed before mature, seasoned, efficient, and globally respected courts. In particular, it is arguable that the forebodings of the prospective foreign litigant are misplaced in England. The Commercial Court,2 notably, is accustomed to litigation in which one or both parties are foreign (resident or based outside the jurisdiction). However, ‘dispute-resolution planning’ requires that enforcement issues must be taken into account. In the case of money judgments, if there are insufficient assets in the jurisdiction where the court judgment is granted, care must be taken that the relevant judgment will be enforceable in another jurisdiction (or set of jurisdictions) where the defendant has sufficient assets to satisfy the judgment. ii

The Mechanism of Choice: Dispute Resolution Clauses3

The stakes are high because the choice between court proceedings and arbitration can affect the result. As Gary Born notes:4 1 A list of abbreviations used in this chapter is found as an Appendix. 2 The Admiralty and Commercial Courts Guide (9th ed., 2011), http://www.dca.gov.uk/civil/ procrules_fin/menus/rules.htm. 3 Neil Andrews, Andrews on Civil Processes v. 2: Arbitration and Mediation (2013), G Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing (4th ed., 2013); A. Briggs, Agreements on Jurisdiction and Choice of Law (2008), Chapter 12; D Joseph, Jurisdiction and Arbitration Agreements and their Enforcement (3d ed., 2015); Towards a Science of International Arbitration: Collected Empirical Research (CR Drahozal and RW Naimark eds., Kluwer, 2005) (Part 3, Arbitration Clauses); Andrea Marco Steingruber, Consent in International Arbitration (2012) (Oxford International Arbitration Series). 4 G. Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing (4th ed., 2013). © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_021

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Almost every international commercial controversy poses a critical preliminary question – “Where, and by whom, will this dispute be decided?” The answer…often decisively affects a dispute’s eventual outcome. It can mean the difference between winning and losing, between de minimis damages and a [very large monetary] award. Careful and perceptive negotiation of dispute-resolution provision is unusual and indeed such matters receive the least attention. It is the Cinderella clause. Furthermore, such a clause is nearly always an exercise in unequal power. Procedural choice (jurisdiction clauses, arbitration clauses, and variants) is seldom founded on equality of party strength. The modern principles for the interpretation of written contracts in English law apply to jurisdiction and arbitration agreements, including the court’s power to recast botched5 text when the true intention is readily discernible. And those modern principles apply also to commercial documents purporting to incorporate dispute resolution clauses. In the Caresse Navigation case (2014) a bill of lading purported to incorporate from a charterparty: ‘All terms… including the law and arbitration clause…’6 In fact the charterparty contained no arbitration clause and instead provided for the exclusive jurisdiction of the English courts. It was held that the jurisdiction clause was validly incorporated. This was an occasion for ‘corrective construction’ because there was an evident error of drafting, the incorporation clause (‘…and arbitration clause’) being plainly intended to incorporate (after corrective construction) ‘any arbitration clause or jurisdiction clause.” Jurisdiction clauses. Sometimes the court acquires jurisdiction as a result of an exclusive jurisdiction agreement7 (or a non-exclusive jurisdiction agreement),8 or at any rate, the defendant’s submission to the foreign court’s 5 For a decision which concerned the relationship between an arbitration clause (London) and a jurisdiction clause (Kenyan courts), British American Insurance (Kenya) Ltd. v Matelec sal[2013] ewhc 3278 (Comm), Walker J. 6 Caresse Navigation Ltd. v Office National de l’Electricité [2014] ewca Civ 1366; [2015] Q.B. 366. 7 Born, supra note 4; A. Briggs, Agreements on Jurisdiction and Choice of Law (2008); D. Joseph, Jurisdiction and Arbitration Agreements and Their Enforcement (3d ed., 2015); A. Briggs, ‘The Subtle Variety of Jurisdiction Agreements’ [2012] lmclq 364–381; T. Hartley, Choice-of-Court Agreements under the European and International Instruments (2013); Dicey, Morris and Collins on the Conflicts of Laws (15th ed., 2012), 12–098 ff; see also RG Fentiman, International Commercial Litigation (2nd ed., 2015), 2.05 ff. 8 The latter permits but does not require proceedings to be brought in the nominated forum; but there are complexities: Dicey, Morris and Collins on the Conflicts of Laws supra note 7, 12–107 and 12–108.

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jurisdiction.9 An exclusive jurisdiction clause stipulates that legal disputes arising from the relevant transaction can only be litigated in the nominated jurisdiction, for example, the courts of London or Hong Kong.10 A non-exclusive jurisdiction clause confers jurisdiction on the relevant nominated courts even though, in the absence of such a clause, that jurisdiction would not have been available to the parties.11 An intermediate species is an exclusive jurisdiction clause requiring party A to right sue in forum x, where the defendant B has its place of business, if A chooses to become the claimant and, conversely, requiring party B to bring suit in forum Y, where defendant A has its place of business, if B chooses to become the claimant.12 Another variation is for the bulk of disputes arising from a transaction to be subject to an exclusive jurisdiction clause, but particular categories of dispute to be excepted from that clause.13 A further variation, a so-called ‘asymmetrical’ or ‘one-sided’ forum selection clause (either court/arbitration or arbitration/court), is for the parties to agree (for example) ‘that all disputes relating to this Agreement shall be resolved exclusively in the Courts of Xanadu, unless Party A chooses to bring action in Ruritania’14 (and see text below for the arbitration/court type of clause). Arbitration clauses. As mentioned, forum selection clauses, including arbitration clauses, are nearly always an exercise in unequal power. Consider these examples: (1) Company v. Individual: An academic author signs a publishing contract (governed by the law of Erewhon).15 The contract has been drawn up by 9 10

Dicey, Morris and Collins on the Conflicts of Laws, supra note 7, at 11-124 ff. E.g., Nomura International plc v. Banca Monte dei Paschi Di Siena Spa [2013] ewhc 3187 (Comm); [2014] 1 wlr 1584 at [16], [17], [80] to [83], Eder J. 11 Deutsche Bank ag v. Highland Crusader Offshore Partners lp [2009] ewca Civ 725; [2010] 1 wlr 1023, at [50], [64], [105] and [106]. 12 born (2013), 30–31: ‘Although there is relatively limited precedent, national courts that have considered the issue have in principle upheld the enforceability of such clauses.’ 13 Born, supra note 4, at 27 (commenting that these clauses can generate disputes concerning the scope of the excepted category). 14 Born, supra note 4, at 29. 15 A. Briggs, Agreements on Jurisdiction and Choice of Law (2008); A. Briggs, in Contract Terms (A. Burrows and E. Peel eds., 2007), Chapter 15; on the Rome I Regulation, Dicey, Morris and Collins on the Conflicts of Laws (15th ed., 2012), Chapters 32 and 33 (on Regulation (ec) No. 593/2008, effective in the uk on 17 December 2009); R.G. Fentiman, International Commercial Litigation (2nd ed, 2015), Chapters 4 and 5. Where the chosen substantive law is foreign, that is, not the substantive system of the relevant forum, the

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the foreign publisher which is a company situated in Erewhon. The inserts a clause stipulating that Erewhon will be the seat of an arbitration conducted under the laws of Erewhon (the publisher, but only that party, also has the ‘asymmetrical’ option whether to proceed by court proceedings rather than by arbitration).16 Here there is significant inequality of power. The asymmetrical arbitration/jurisdiction clause is inserted by the powerful publishing house for its sole convenience and to secure home advantage. (2) Big Company v. Small Company: A commercial agent, based in America, agrees to solicit custom from the us Navy on behalf of a principal, a uk company. The agent’s work will be done in the usa, where the goods will also be received by the us Navy. The agent accepts the principal’s proposed arbitration clause which provides that any dispute arising will be heard by an arbitral tribunal whose seat will be Geneva. Here the arbitration agreement is not negotiated. Ostensibly the parties have opted for neutrality, but there is a significant inequality of power between the uk company and usa commercial agent. The clause has been inserted on the initiative of the uk company. The parties have opted for ‘neutrality’: both parties will be playing ‘away.’ But it is more likely that the agent will wish to sue the principal, rather than vice versa. Geneva is an expensive venue and, for reasons of expense and distance, will not be attractive to the American agent. (3) Large State v. Big Company. A large sovereign state, Ruritania, contracts with Gush Oil Inc, a major foreign oil company, registered in Oceania, for the extraction of oil and gas from land in Ruritania. The transaction is governed by Ruritanian law. In the event of a dispute, the seat of the arbitration will be in Yonderstate. Here both parties are powerful legal entities. Again, the parties have opted for ‘neutrality’: both parties will be playing ‘away.’ But even a powerful corporation might not be able to match the resources of a large state (conversely, some small states might be weaker than large companies). The arbitration will prove expensive and gruelling for both parties. But Ruritania, if sued by Gush Oil Inc, has vast resources to delay the giving of an award and its enforcement.

16

problem of ‘proof of foreign law’ will arise; but for reasons of space, that topic will not be examined here (see literature cited above). See text below on ‘asymmetrical’ clauses.

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(4) Shifting Economic Strength. Power can shift during the life of a transaction. Suppose that, six years ago, a promising Ruritanian tennis-player, not yet a ‘star,’ signed a promotion agreement which provided that the promoter, based in the United States of Xanadu, would gain ten per cent of the player’s sponsorship revenue. The agreement is terminable upon a two-year notice by either party. There is an arbitration clause with the seat in Xanadu. At the time that the dispute falls for reference to arbitration, the player has become a very wealthy star, much richer than the promoter. And the tennis-player now lives (mostly) in Xanadu,17 although he remains a Ruritanian citizen. Here the balance of advantage has tilted towards the tennis-player. His foreign status is nominal. He is now at home in Xanadu. Even an expensive arbitration holds no terror for him. Over-Complex and Confused Dispute-Resolution Clauses. Sometimes the dispute-­resolution clause is confusing, convoluted, and poorly structured. In a development contract, which came to the author’s attention, a composite dispute-resolution clause comprised these elements: (i) expert determination on technical matters arising under the construction phase of the development and concerning the adequacy of steps taken to procure planning permission; (ii) arbitration (although, curiously, ‘not on points of law or matters of interpretation of the written contract’); (iii) High Court proceedings. The remedy sought at the time of the relevant dispute was specific performance (to compel a party to complete certain building obligations). But it was unclear whether that remedy was within the scope of the arbitral tribunal because of the ‘land exception’ to the availability of specific performance under Section 48(5)(b) of the Arbitration Act 1996.18 Asymmetrical Clauses. The English High Court has upheld so-called ‘asymmetrical’ dispute-resolution clauses.19 These enable one party to opt out of 17 18

19

A variation on the facts of Cody v. Murray [2013] ewhc 3448 (Ch) (no arbitration clause, but a tennis-player who becomes successful). Telia Sonera ab v. Hilcourt (Docklands) Ltd [2003] ehwc 3540, at [17] and [36], per Etherton J (considered, Lesley McCaughan v. Belwood Homes Limited[2011] NIMaster 11, at [11]); VV Veeder, ‘Compound Interest and Specific Performance: “Arbitral Imperium” and ss 49 and 48 of the English Arbitration Act 1996’, in Interest, Auxiliary and Alternative Remedies in International Arbitration (L Levy and F De Ly, eds) (icc Institute of World Business Law, icc Publishing, 2008), 81, at 83–89. But the parties can expressly extend the tribunal’s powers to include the grant of specific performance in respect of land. Also known as ‘hybrid’ ‘unilateral’ ‘optional’, ‘non-mutual’ clauses. See nb Three Shipping Ltd v. Harebell Shipping Ltd [2004] ewhc 2001(Comm); [2005] 1 All er (Comm) 200;

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court proceedings in England by taking the case to arbitration (the court/arbitration option) or, conversely, the favoured party can opt out of arbitration and instead bring proceedings before an English court (the arbitration/court option). But the right to make such a switch is vested in only one of the parties (and hence this unusual feature must be clearly stated).20 The option-holder need not exercise the option by commencement of proceedings. Instead the option can be made responsively, that is, after the non-option holder has initiated proceedings. Court/Arbitration Option. In nb Three Shipping Ltd v. Harebell Shipping Ltd (2004) Morison J upheld21 the following clause: ‘The courts of England shall have jurisdiction to settle any disputes which may arise out of or in connection with this Charterparty but the Owner shall have the option of bringing any dispute hereunder to arbitration.’ Here the charterer commenced court proceedings, but Morison J, giving effect to the owner’s court/arbitration option, upheld the owner’s application for a stay under Section 9 of the Arbitration Act 1996. Morison J added22 that the owner’s option to choose arbitration ‘would cease to be available if Owners took a step in the [court] action or they otherwise led Charterers to believe on reasonable grounds that the option to stay would not be exercised…’ Arbitration/Court Option. In Law Debenture Trust Corp plc v. Elektrim Finance bv (2005)23 the arbitration clause incorporated uncitral Arbitration Rules, [2005] 1 Lloyd’s Rep 509, Morison J; Law Debenture Trust Corp plc v. Elektrim Finance bv and others [2005] ewhc 1412 (Ch); [2005] 2 All er (Comm) 476; [2005] 2 Lloyd’s Rep 755, Mann J; on this topic, S Nesbitt and H Quinlan, ‘The Status and Operation of Unilateral or Optional Arbitration Clauses’ (2006) 22 Arbitration International 133; Russell on Arbitration (24th ed., 2015), 2-018 see drafting suggestions in G Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing (4th edn, Kluwer, Netherlands, 2013), 28–29, 121–122. 20 [2012] ewca Civ 638; [2013] 1 wlr 102, at [30]: ‘Although most arbitration agreements permit either party to refer disputes to arbitration, some provide for arbitration only at the option of one or other party. If that is what the parties wanted to achieve, therefore, the means were readily to hand. In the present case, however, there is nothing to indicate that the parties intended to enter into a one-sided arrangement of that kind; …The possible existence of a rule of Brazilian law which would undermine that position tends to suggest that the parties did not intend the arbitration agreement to be governed by that system of law.’ 21 nb Three Shipping Ltd v. Harebell Shipping Ltd [2004] ewhc 2001 (Comm); [2005] 1 All er (Comm) 200; [2005] 1 Lloyd’s Rep 509, Morison J. 22 Id., at [11]. 23 [2005] ewhc 1412 (Ch); [2005] 2 All er (Comm) 476; [2005] 2 Lloyd’s Rep 755, Mann J.

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the seat being London. One party was given an arbitration/court option: to opt to use London court proceedings instead, if he so chose. Clause 29.7 provided that: ‘Notwithstanding [the preceding agreement to arbitrate], [x, one of the parties, shall have] the exclusive benefit [and]…exclusive right, at [x’s] option, to apply to the courts of England, who shall have non-exclusive jurisdiction to  settle any disputes which may arise out of or in connection with these ­presents ….’ iii

What is ‘Foreign Litigation’?

Foreign or cross-border litigation involves civil proceedings in a foreign court, or before an arbitral tribunal whose ‘seat’24 is in a foreign jurisdiction. The litigant is a ‘foreigner’ in the sense that he or she is not a national25 of the relevant jurisdiction or the litigant is a company not registered in that jurisdiction. Litigation involving one or more foreign litigants can raise many technical issues, including service of process on foreign defendants,26 obtaining evidence abroad,27 transnational protective relief,28 enforcement of foreign 24 25 26

27

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Neil Andrews, Civil Processes v. 2: Arbitration and Mediation (2013), 6.01 to 6.06. As Art 6(3) lcia (2014) acknowledges, a person can have more than one nationality; and there are other complications, Art 6(1) and 6(2). Dicey, Morris and Collins on the Conflicts of Laws (15th ed., 2012), 278 ff (noting, in particular, the eu Service Regulation, Regulation (ec) 1393/2007, and the Hague Convention on the service abroad of judicial and extra-judicial documents in civil or commercial matters, 1965); and id., Chapters 11 and 12 on related jurisdictional matters; see now the Jurisdiction Regulation (2012) (Regulation (eu) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; the relevant parts of which take effect on 10 January 2015); E. Storskrubb, Civil Procedure and eu Law: A Policy Area Uncovered (2008), Chapter 6; Neil Andrews, on Civil Processes v. 1: Court Proceedings (2013), 5.26–5.21; Zuckerman on Civil Procedure (3rd ed., 2013), 5.166 ff. Dicey, Morris and Collins on the Conflicts of Laws (15th ed. 2012), 288 ff (noting, in particular, the eu Evidence Regulation, Regulation (ec) 1206/2001 on co-operation between the courts of the Regulation States in the taking of evidence in civil or commercial matters); Neil Andrews, English Civil Procedure (Oxford University Press, 2003), Chapter 33; E. Storskrubb, Civil Procedure and eu Law: A Policy Area Uncovered (2008), Chapter 7. Dicey, Morris and Collins on the Conflicts of Laws (15th ed. 2012), Chapter 8; Andrews, v. 1: Civil Processes, Court Proceedings (2013), Chapter 21; R.G. Fentiman, International Commercial Litigation (2nd ed. 2015), Chapter 17; S. Gee, Commercial Injunctions (6th ed., 2016), Chapter 2; Zuckerman on Civil Procedure (3rd ed., 2013), 10.201 ff; American

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judgments,29 and proof of foreign law30 (and it seems probable that arbitral tribunals selected on the basis of expertise in the relevant foreign law will perform better in discovering and applying that foreign law than a national court lacking such knowledge). For reasons of space, those matters will not be explored here. Courts (and the procedural system within which they operate) should be even-handed as between local parties and foreign litigants for two main reasons. First, a nation’s capacity to deal even-handedly with foreign and local litigants is the most civilised form of civil justice: justice must be done and seen to be done not just between local litigants. This is an imperative of transnational justice and the foundation for mutual respect and judicial co-operation31

29 30

31

Law Institute/unidroit’s Principles of Transnational Civil Procedure (2006), Principle 8; Neil Andrews, Provisional and Protective Measures: Towards a Uniform Provisional Order, 6 Uniform L. Rev. (Rev dr unif) 931 (2001) (a possible ‘blue-print’ for an international code or practice relating to freezing relief, preservation of evidence, and a­ sset disclosure orders); The International Law Association: Report of the Sixty-Seventh ­Conference Held at Helsinki, Finland, 12 to 17 August 1996 185–204 (J. Crawford & M. Byers eds., 1996), (rapporteur’s introduction – Campbell McLachlan; text of Principles; record of discussion). Dicey, Morris and Collins on the Conflicts of Laws (15th ed. 2012), Chapter 14; R.G. Fentiman, International Commercial Litigation (2nd ed. 2015), Chapter 18. Dicey, Morris and Collins on the Conflicts of Laws (15th ed. 2012), Chapter 9; R.G. Fentiman, International Commercial Litigation (2nd ed. 2015), Chapter 20 (and literature cited at 666 n 1); R. Fentiman, Law, Foreign Laws, and Facts 59 Current Legal Probs. 391 (2006); Neil Andrews, English Civil Justice and Remedies: Progress and Challenges: the Nagoya Lectures (2007), Chapter 5; Neil Andrews, English Civil Proceedings: Proof of Foreign Law, in International Contract Litigation, Arbitration and Judicial Responsibility in Transnational Disputes 243 (R. Stürner & M. Kawano eds. 2011); see also Harley v. Smith [2010] ewca Civ 78; [2010] cp Rep 33; on the Singapore International Commercial Court’s innovative approach to proof of foreign law, D. Wong, The Rise of the International Commercial Court… (2014) 33 cjq 205, 210, 214, 221–222. Neil Andrews, Judicial Co-operation: Recent Progress (2001); American Law Institute/ unidroit’s Principles of Transnational Civil Procedure (2006), Principle 31: ‘International Judicial Cooperation: The courts of a state that has adopted these Principles should provide assistance to the courts of any other state that is conducting a proceeding consistent with these Principles, including the grant of protective or provisional relief and assistance in the identification, preservation, and production of evidence. Comment: P-31A International judicial cooperation and assistance supplement international recognition and, in modern context, are equally important.’

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between civil jurisdictions, including recognition of foreign judgments.32 ­Secondly, forensic even-handedness towards foreign litigants operates in the national interest. Most court systems, and certainly all professionals (lawyers and other experts) engaged in supplying or supporting commercial arbitration, wish to attract such cross-border disputes33 (such money-generating hospitality can be traced to the foreign jurisdiction in ancient Rome supervised by praetor peregrinus).34 There is competition amongst legal systems for transnational litigation, not only because of fee income and economic benefits,35 but for reasons of international reputation. Similarly, arbitration centres are keen to promote themselves before foreign parties. A foreign party who appears as defendant in court proceedings will be an unwilling participant only if he is not party to a jurisdiction clause, has not submitted to the relevant jurisdiction, and has not chosen to bring a counterclaim. In other situations36 the foreign party, whether claimant or defendant, 32

33 34

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36

E.g., American Law Institute/unidroit’s Principles of Transnational Civil Procedure (2006), Principle 30: ‘Recognition: A final judgment awarded in another forum in a proceeding substantially compatible with these Principles must be recognized and enforced unless substantive public policy requires otherwise. A provisional remedy must be recognized in the same terms. Comment: P-30B …a judgment given in a proceeding substantially compatible with these Principles ordinarily should have the same effect as judgments rendered after a proceeding under the laws of the recognizing state. Principle 30 is therefore a principle of equal treatment…Only the limited exception for non-recognition based on substantive public policy is allowed when the foreign proceedings were conducted in substantial accordance with these principles.’ Neil Andrews, The Modern Civil Process: Judicial and Alternative Forms of Dispute Resolution in England (2008), Chapter 13 (‘English Civil Justice in the Global Market’). H.F. Jolowicz & J.K.B.M. Nicholas, Historical Introduction to Roman Law 48, 102–04, ­220–22 (3rd ed., 1972); W. Kunkel, An Introduction to Roman Legal and Constitutional History (J.M. Kellytrans., 2nd ed., 1973), Chapters 5 and 6. Lord Mustill, The History of International Commercial Arbitration, in Newman and Hill (2014) Chapter 1, at 30: ‘International Arbitration has…become…really big business… A large dispute can bring appreciable rewards to the host country…’ Of the six permutations, only in (1)(B) is a foreign litigant’s involvement wholly involuntary: (1) local claimant/foreign defendant, court proceedings; the litigation is brought in that jurisdiction (A) as a result of a jurisdiction clause; or (B) (there being no jurisdiction clause) the local claimant has taken the initiative hoping to gain advantage from the home venue and its familiarity; (2) foreign claimant/local defendant, court proceedings; permutation (2) also might or might not be the product of a jurisdiction agreement and notably the foreign claimant’s wish to take advantage of objective advantages in using the defendant’s jurisdiction (perhaps the concrete advantage of access to documents, witnesses, and assets); (3i) local claimant/foreign defendant, arbitration proceedings; (4)

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will have (i) instituted the relevant foreign court proceedings or arbitration, or (iii) agreed ex ante (a jurisdiction or arbitration clause) or (iii) submitted willingly to the relevant process. iv

Obstacles Confronting Foreign Litigants

There might be obstacles, real or perceived, to foreign participation in civil proceedings. 1.

2.

37

38 39

Bias. First, there is the outsider’s fear that, if he exposes himself to foreign adjudication, his alien status will cause him to suffer prejudice and the local party will be favoured.37 However, as Born notes,38 it can go badly wrong if the (open and public) court proceedings reveal that the local party has been guilty of serious wrongdoing and this provokes a sense of outrage within the home territory. Unfamiliar procedures. This is the problem of the local party’s (notably, his legal team’s) intimate familiarity with ‘home rules’ and a foreign litigant’s ignorance and lack of familiarity.39 This factor explains mediaeval foreign claimant/local respondent, arbitration proceedings; (5) foreign claimant/foreign defendant, court proceedings (we can assume that this occurs by virtue of a jurisdiction clause or voluntary submission); (6) foreign claimant/foreign respondent, arbitration proceedings; in situations (5) and (6) we can assume that the parties’ joint decision to ‘play away from home’ is the result of a jurisdiction agreement or arbitration clause, in which they have nominated a neutral territory. For an argument that some states habitually favour their own companies or citizen’s interests and that, in the context of arbitral awards, their annulment or confirmatory decisions should be presumed to lack objective support, Hans Smit, Annulment and Enforcement of International Arbitral Awards: A Practical Perspective, in The Leading Arbitrators’ Guide to International Arbitration (L.W. Newman and R.D. Hill eds., 3rd ed., 2014), Chapter 38 at 921–4., especially the us case law concerning foreign annulment decisions, assembled at n 40 (Chromalloy, Spier, and Baker Marine cases). See also Andrews, Civil Processes v. 1: Court Proceedings (2013), 16.49–16.51, concerning the Yukos case: Dutch decision not to acknowledge (for reasons of alleged bias) Russian court’s (host court) annulment of an arbitral award; English court not bound by Dutch court’s decision concerning the Russian court’s lack of impartiality. Born (2013), 5–6. Heidelberg Conference National Report (2011): as Hiroshi Tega (Japan) comments, arbitration can avoid or reduce exposure to ‘unfamiliar and unpredictable foreign justice

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3.

4.

40 41

42 43

44 45

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expansion of arbitration: ‘merchants [having been wary] of submitting their commercial interests to foreign aw or to an unfamiliar legal system that may possess parochial interests.’40 But the best forensic plans can misfire: perhaps the foreign litigant should have accepted the offer of litigation in the opponent’s home court because, on close forensic inspection and comparing arrangements within the alternative forum, particular procedural advantages (for example, superior documentary discovery or more robust summary judgment procedure) would have strengthened that party’s hand. Travel and dislocation. Litigating in a foreign venue can involve considerable expense, logistical disadvantage, inconvenience, apprehension, and stress. Moreover the foreign court venue is static (subject only to witness video-conferencing).41 By contrast, the seat of the arbitral tribunal can be agreed on any ­convenient part of the world. Even when the seat is selected, the arbitral tribunal is not tied to the ‘seat.’ Members of the tribunal can travel42 for reasons of mutual convenience, or if there are international problems,43 or if a particular witness would be under threat within a particular ­country or territory44 (the London Court of International Arbitration’s (lcia, 2014) rules also refer to the possibility of video-conferencing).45 Specific Barriers. The following specific barriers might confront foreign litigants:

systems (systems which are, conversely, familiar and predictable to the other party – like discovery, jury decisions, punitive damages, etc).’ Mark Garavaglia, In Search of the Proper Law in Transnational Commercial Disputes, 12 n.y.l. Sch. J. Int’l & Comp. L. 29, 30(1991). E.g., Polanski v. Condé Nast Publications Ltd [2005] ukhl 10; [2005] 1 wlr 637; McGlinn v. Waltham Contractors Ltd [2006] ewhc 2322 (tcc); in neither case was the relevant absentee’s reason for not coming to England held to bar use of video-linking (respectively, avoidance of extradition to the usa, and avoidance of tax liability within the uk). B. Hanotiau, The Conduct of the Hearings, in Newman and Hill (2014), Chapter 26 at 642. E.g., the following natural events: (1) ‘sars’ (S E Asia, 2002): (http://en.wikipedia.org/wiki/ Severe_acute_respiratory_syndrome), (2) ebola (West Africa 2014: http://en.wikipedia .org/wiki/Ebola_virus_disease), or (3) the ‘volcanic ash’ (Iceland 2010: http://en.wikipedia .org/wiki/2010_eruptions_of_Eyjafjallaj%C3%B6kull). B. Hanotiau, supra note 42. Art 19.2, lcia (2014).

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discriminatory court fees: special court fees requiring foreign litigants to pay more than local nationals;46 but in England this problem does not arise (although a non-discriminatory increase in both c­ ommencement and hearing fees is contemplated for Commercial Court litigation in London);47 time bars: this concerns unreasonably short procedural deadlines, notably limitation periods; in English court proceedings, statute p ­ rovides ­protection against ‘undue hardship’48 arising from the application of short foreign limitation periods; but the mere fact that the foreign period is shorter than the English parallel regime is not in itself a case of ‘undue hardship’;49 legal representation restrictions: rules prohibiting representation other than by local lawyers (here arbitration offers greater flexibility); linguistic problems: transnational litigation can involve the burden of translation and other linguistic hurdles (here too arbitration is more flexible); discriminatory security for costs orders: this is the problem of orders for security for costs based solely on a person’s foreign nationality or affiliation; in England, both in court proceedings and arbitration, security for costs might be awarded against a foreign claimant if there are objective reasons to justify protecting the defendant against the claimant’s possible costs default. The last three of these require further comment. 46

47

48

49

Not so absurd: in England and Wales, foreign students (from outside the eu) have to pay much higher fees than eu students (a situation which will change following the ‘Brexit’ arrangements, after the uk leaves the eu). ‘Court Fees, Proposals for Reform’ (Dec, 2013; Cmnd 8751), paras 153 to 183; for a study by Queen Mary College (study commissioned by the uk Government) of court fees charged in commercial courts in England, the Dubai International Financial Centre, Australia, New York, Delaware, ‘Competitiveness of Fess Charged for Commercial Court Services: An Overview of Selected Jurisdictions’ . s 2(1), Foreign Limitation Periods Act 1984; Gotha City v. Sotheby’s, The Times 8 October, 1998; noted in Garcia v. De Aldama [2002] ewhc 2087 (Ch); [2003] ecdr CN1, at [252], [253], per Peter Smith J. Harley v. Smith [2010] ewca Civ 78; [2010] cp Rep 33, at [55] (one year personal injury period in Saudi Arabia; three years in England).

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(a) Legal Representation Restrictions.50 Only a lawyer who holds a practice certificate in England and who has a right of audience can appear as an advocate before the English courts. And so a foreign advocate not having these English qualifications cannot appear as an advocate before English courts.51 By contrast, arbitration in England can be conducted by foreign lawyers.52 Most parties in London arbitration proceedings will ‘double up,’ using both foreign and English lawyers, the latter being more likely to appear as advocates before the tribunal.53 The London Court of International Arbitration’s (lcia, 2014) rules make detailed provision on this topic, reflecting some unhappy experiences.54 Under those rules, a party can use the lawyer of his choice,55 but the tribunal is given 50

51

52

53

54

55

For observations on legal representation and equality of arms and the right to representation, Andrews, on Civil Processes v. 1: Court Proceedings (2013), 25.09–25.17; Zuckerman on Civil Procedure (3rd ed., 2013), 3.164–3.174. A more flexible approach is contemplated in Singapore: Singapore International Commercial Court Committee (2013), paras 37 to 41 (). s 36, Arbitration Act 1996 (‘Unless otherwise agreed by the parties, a party to arbitral proceedings may be represented in the proceedings by a lawyer of other person chosen by him…’); the iba Guidelines on Party Representation in International Arbitration (2013) offer useful suggestions concerning lawyers’ duties to the arbitral tribunal and their responsibility to ensure that parties satisfy their procedural obligations. Notably Guidelines 12 to 17 (lawyers and the disclosure process), 24 (lawyers and factual or expert witnesses), 26 to 27 (sanctions in event of lawyer’s misconduct) . New South Wales has legislated on this matter: HEIDELBERG CONFERENCE (2011) NATIONAL REPORT (2011) (filed with author): Andrew Cannon (Australia), noting Section 24A(2) Commercial Arbitration Act 2010 (nsw): ‘A person who is not admitted to practise as a legal practitioner in New South Wales does not commit an offence under or breach the provisions of the Legal Profession Act 2004 or any other Act merely by representing a party in arbitral proceedings in this State.’ He also notes that there is no equivalent of this section in the uncitral Model Law. Van den Berg admits that lawyers for whom cross-examination is their ‘bread and butter’ will tend to have an advantage over others, lacking this experience: A.J. van den Berg, Organizing an International Arbitration: Practice Pointers, in Newman And Hill (2014), Chapter 17, at 431. The London experience vindicates the remark by Françoise Vidts and Didier Matray (Belgium) that lawyers from different systems are subject to different codes of professional ethics and that this can cause difficulties. Heidelberg Conference National Report (2011) (filed with author). Art 18.4, lcia (2014) (acknowledging ‘the general principle that a party may be represented by a legal representative chosen by that party’).

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power to issue sanctions56 where there has been flagrant procedural abuse57 committed by that lawyer. (b) Linguistic Problems. Arbitration is linguistically more flexible. Courts tend to insist on court business being conducted in the national language (or applicable national language, where there is a choice: for example, in England this is English, but in Wales it can be English or Welsh). An English court will receive evidence in English. Foreign witnesses who are unable to give evidence in English can be heard through translation. Foreign documents must be translated into English. By contrast, in arbitration proceedings58 the parties can agree flexibly on the applicable written and spoken language(s), which need not be the national language(s) of the ‘seat’; and the tribunal can (with the parties’ agreement) later hear or read material in a different language.59 The need for linguistic skills and versatility is an important factor when determining the panel’s membership. In some proceedings (judicial or arbitral), there can be a conflict between the meanings derived from different languages in which transactions, including the (alleged) arbitration clause, are presented. And, as mentioned already, arbitral tribunals selected for their expertise in the relevant foreign law are almost bound to out-perform a national court’s attempt to cope with foreign law. 56

57

58 59

Art 18.6, lcia (2014): ‘the Arbitral Tribunal may order any or all of the following sanctions against the legal representative: (i) a written reprimand; (ii) a written caution as to future conduct in the arbitration; and (iii) any other measure necessary to fulfil within the arbitration the general duties required of the Arbitral Tribunal.’ Annex to lcia (2014): para 2, making ‘repeated challenges to an arbitrator’s appointment or to the jurisdiction or authority of the Arbitral Tribunal known to be unfounded by that legal representative’; para 3, ‘knowingly [making] any false statement to the Arbitral Tribunal’; para 4, ‘knowingly procur[ing] or assist[ing] in the preparation of or rely[ing] upon any false evidence presented to the Arbitral Tribunal’; para 5, ‘knowingly conceal[ing] or assist[ing] in the concealment of any document (or any part thereof) which is ordered to be produced by the Arbitral Tribunal’; para 6, ‘deliberately initiat[ing] or attempt[ing] to initiate with any member of the Arbitral Tribunal… any unilateral contact relating to the arbitration or the parties’ dispute, which has not been disclosed in writing prior to or shortly after the time of such contact to all other parties, all members of the Arbitral Tribunal…and the Registrar….’ See, e.g., uncitral’s Notes on Organizing Arbitral Proceedings (2012) paras 17 to 20; http://www.uncitral.org/pdf/english/texts/arbitration/arb-notes/arb-notes-e.pdf. Cf. Art 17, lcia (2014), differentiating between the stage prior to ‘the formation of the Arbitral Tribunal’ (here the rules refer to the ‘initial language,’ namely ‘the language or prevailing language of the Arbitration Agreement,’ which might be Russian or Chinese, for example), and the later determination of the ‘language or languages of the arbitration,’ as determined by the tribunal.

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(c) Security for costs.60 An arbitral tribunal (but not the English courts)61 can issue orders for security for costs in respect of arbitral proceedings.62 An English court might grant security for costs in favour of a defendant claimant who is resident out of the English and Welsh jurisdiction but not resident in a Member State of the European Union or a Lugano Convention Contracting State.63 But there must be evidence that an eventual costs order in favour of the defendant will be hard to enforce in the claimant’s non-eu jurisdiction64 (technicalities have arisen).65 60

61

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63

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In English court proceedings, Dicey, Morris and Collins on the Conflicts of Laws (15th ed., 2012), 309–14; Neil Andrews, Civil Processes v. 1: Court Proceedings (2013), Chapter 19; Zuckerman on Civil Procedure (3rd ed., 2013), 10–269 ff; and in arbitration: Neil Andrews, Civil Processes v. 2: Arbitration and Mediation (2013), 13.45-13.47; A. Redfern, Interim Measures, in Newman And Hill (2014), Chapter 15, at 392; W. Gu, Security for Costs in International Commercial Arbitration, 22 J. of Int’l Arb. 167(2005). For the background, Departmental Advisory Committee (1996) at [190] ff, and reversing Coppée Lavalin nv (sa) v. Ken-Ren Chemicals and Fertilizers Ltd. [1995] 1 ac 38, hl (J. Paulsson, Interference by National Courts, in Newman and Hill (2014) Chapter 2 at 39 n.9) (this decision ‘subjected international arbitrations to paralysis for the duration of lengthy debates before the English courts about security for costs’). s 38(3), Arbitration Act 1996; the Departmental Advisory Committee Report (1996), at [190] to [198]; the tribunal can dismiss the proceedings if the claimant resists a peremptory order for payment of security for costs, s 41(5), Arbitration Act 1996; Slaughter and May (London) (Heidelberg Conference, National Report (2011)) have noted the reluctance of arbitration tribunals to award security for costs: ‘Arbitration is also likely to put a defendant in a worse position in relation to costs. Whilst we have succeeded in obtaining a security for costs in arbitration, our experience is that, partly by virtue of the fact that a party being from another jurisdiction may not be the basis for the award of security for costs and partly due to the fact that tribunals will frequently be composed of individuals from jurisdictions where security for costs is not a feature of litigation, awards tend to be significantly smaller than we might have expected in litigation.’ cpr 25.13(2)(a); for an exception, Olatawura v. Abiloye [2002] ewca Civ 998; [2003] 1 wlr 275 (discussed in Huscroft v. P & O Ferries Ltd [2010] ewca Civ 1483; [2011] 1 wlr 939, at [15] ff, and also noting at [16] and [19] on Rimer J’s decision in Halabi v. Fieldmore Holdings Ltd [2006] ewhc 1965 (Ch)). Nasser v. United Bank of Kuwait [2001] ewca Civ 556; [2002] 1 All er 401, applying Art 14 of the European Convention on Human Rights (now Schedule 1, Human Rights Act 1998) which prohibits direct or indirect discrimination by reference to: ‘any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ Most non-uk residents are likely to be non-uk citizens. It is unclear whether (i) ‘enforcement’ refer merely to a foreign court’s decision whether or not to permit local enforcement of an English costs judgment (per Hamblen J in

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The Perceived Advantages of Arbitration

The five66 main67 advantages regularly alleged to be associated with arbitration are:68 (1) neutrality, (2) expertise, (3) finality, (4) superior cross-border ­enforcement, (5) confidentiality. Apart from (4), which is normally a pro-­ claimant favour,69 the other four factors are potentially beneficial to both parties.

66

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68 69

­Dumrul v. Standard Chartered Bank [2010] ewhc 2625 (Comm); [2010] 2 clc 661, at [26] to [30]), or (ii) does ‘enforcement’ extend to the subsequent regime of giving effect to that judgment, that is by execution against the defendant’s assets within the relevant foreign jurisdiction (position (i) was declared by the judge in Cody v. Murray [2013] ewhc 3448 (Ch), at [7] to [12], to be an unconvincing interpretation of the Nasser case, and indeed wrong, and he asked for swift reconsideration of the Nasser case by the Court of Appeal). A sixth possible advantage is ‘procedural flexibility’: ‘modern [arbitration] practitioners have adopted a cosmopolitan approach which converges in a range of shared practices’ and ‘remarkable procedural commonalities’: Paulsson (2014), 179. Bühring-Uhle (2006), (figure 3 at 108), examined these ‘advantages’: (1) neutral forum; (2) international enforcement by treaty; (3) confidentiality, (4) expertise of the tribunal; (5) lack of appeal; (6) limited discovery; (7) speed; (8) more amicable; (9) greater degree of voluntary compliance; (10) less cost; (11) greater predictability. Factors (1) to (3) were regarded as most important by 53 respondents to a questionnaire (arbitrators or arbitral leading commentators: their names are included in a longer list of ‘participants’ at Appendix 1). At 109–110 Bühring-Uhle concludes: ‘international commercial arbitration provides what litigating transnational disputes in national courts appears to lack: the neutrality of the forum and the international enforceability of its decision. Four of the five [of the 53 respondents] perceived these attributes as “highly relevant” or “significant”. Next came…confidentiality of the procedure, the expertise of the tribunal and the absence of appeals. Close to 60 per cent of the respondents considered these to be other important advantages of international commercial arbitration. With regard to transactions costs, the practitioners, perhaps surprisingly, held the typical advantages of “alternative” dispute resolution procedures to be less relevant in this context: while 67 per cent of respondents though that international commercial arbitration is generally faster than cross-border litigation, only forty one percent thought it is generally less expensive…It can be concluded that, on aggregate, international commercial arbitration is moderately faster but not less costly than litigation in national courts.’ qmc Survey 8–9 (Queen Mary College, London, 2013). Unless the defendant makes a counterclaim which results in a net award in his favour.

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Neutrality.70 The desire for ‘neutrality’ is a response to two anxieties: (i) fear of suffering discrimination as an outsider71 and (ii) fear of unknown processes.72 As for (ii), there are significant procedural differences around the world.73

70

A.H. Baum, International Arbitration: the Path Towards Uniform Procedures, in Briner, Liber Amicorum (2005), 51–52; A.F. Lowenfeld, The Party-Appointed Arbitrator: Further Reflections, in Newman and Hill 473 (2014), Chapter 19, however, suggests that ‘rooting for the home team’ by a party-appointed arbitrator’ is ‘not much in evidence’; C.A. Rogers and J.C. Jeng, The Ethics of International Arbitrators, in Newman and Hill 191–92 (2014), Chapter 7 (‘to say that all arbitrators are equally “neutral” is mostly a triumph of rhetoric’); id. at 199–200; party-appointed arbitrators ‘serve as an “interpreter” of language, of legal culture, and of law for the benefit of fellow adjudicators’, F. Gelinas, The Independence of International Arbitrators and Judges: Tampered With or Well Tempered 24 n.y. Int’l L. R. 1, 26 (2011); I. Lee, Practice and Predicament: Nationalism, Nationality, and National-Affiliation in International Commercial Arbitration 31 Fordham Int’l L.J. 603 (2007) (also noting religious affiliation – and see end of this note); and for practice in icsid matters, C.A. Rogers and J.C. Jeng, at 199–200. On English arbitration’s willingness to allow appointment by reference to national or religious criteria, see Jivraj v. Hashwani[2011] uksc 40; [2011] 1 wlr 1872, and Andrews, Civil Processes: Arbitration and Mediation (2013), 9.25 ff; and on connections between potential arbitrators and parties based on ‘residence’ and ‘other relationships’ (and not just nationality), see icc Rules (2012), Art 13(1). For an argument that some states habitually favour their own companies or citizen’s interests and that, in the context of arbitral awards, their annulment or confirmatory decisions should be presumed to lack objective support, Hans Smit, Annulment and Enforcement of International Arbitral Awards: a Practical Perspective, in The Leading Arbitrators’ Guide to International Arbitration (L.W. Newman and R.D. Hill eds., 3rd ed., 2014), Chapter 38 at 921–4., especially the us case law concerning foreign annulment decisions, assembled at n.40 (Chromalloy, Spier, and Baker Marine cases). See also Andrews, Civil Processes v. 1: Court Proceedings (2013), 16.49–16.51, concerning the Yukos case: Dutch decision not to acknowledge (for reasons of alleged bias) Russian court’s (host court) annulment of an arbitral award; English court not bound by Dutch court’s decision concerning the Russian court’s lack of impartiality. Heidelberg Conference National Report (2011): as Hiroshi Tega (Japan) comments, arbitration can avoid or reduce exposure to ‘unfamiliar and unpredictable foreign justice systems (systems which are, conversely, familiar and predictable to the other party – like discovery, jury decisions, punitive damages, etc).’ For historical remarks, Mark Garavaglia, In Search of the Proper Law in Transnational Commercial Disputes, 12 n.y.l. Sch. J. Int’l & Comp. L. 29, 30 (1991). Qualifications upon this proposition: (i) much depends on so-called procedural ‘families’: a New Zealander litigating in London will not be (much) surprised by the English system of civil procedure, whereas a French party would; (ii) contemporary attempts to establish transnational procedural principles or rules might reduce the degree of surprise and

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Arbitration might be chosen in the name of ‘neutrality’ for reasons of (a) ‘seat’ or (b) tribunal membership. As for (a), neutrality of the seat, for example, London, Paris, Stockholm, or Zurich might be chosen where the parties are based in China and the usa. As for (b), if the tribunal consists of three members, each party can appoint his own co-arbitrator (for example, a Chinese and American), but the President will be appointed by the co-arbitrators and display no national or party allegiance74 (and so the President might be, to follow this example, neither Chinese nor American). It might be considered that the national affiliations of the parties’ respective co-arbitrators will cancel each other. The end result is described as ‘neutrality,’ but the reality is mutual and contradictory wingmember bias, subject to presidential autonomy. Expertise. Arbitrators can be selected for their expertise in technical areas, such as engineering, economics, science, the ‘customs of the sea,’ or commercial law.75

sense of unfamiliarity (e.g., the European Law Institute/unidroit set of projects; from 2014, and examining, at first, the topics of service of process and of documents; protective relief; and access to information and evidence). ‘The costs and distress resulting from legal conflict can be mitigated by reducing differences in legal systems, so that the same or similar “rules of the game” apply no matter where the participants may find themselves’: American Law Institute/unidroit’s Principles of Transnational Civil Procedure 1 (2006), commenting on attempts to harmonise procedural law or to achieve greater convergence (‘approximation’). (iii) But even if national courts were to adopt a uniform procedural code, within months local practice would produce different styles and interpretations in different jurisdictions (however, even this problem can be overcome by a strongly unified bar and by a ‘Federal’ court, as in the usa and the Federal Rules of Civil Procedure: id. at 3). 74 Born (2013) op cit. n 6 above, at 81–86 (offering valuable comment on the process of appointing the President or Chair). 75 E.g. Heidelberg Conference Reports By National Reporters (2011) (filed with the author): Viktória Harsági (Hungary): ‘Judges of state courts are (or can be) highly qualified legal experts; however, they cannot be expected to have detailed knowledge of international trade practices.’ David Steward (London, Singapore, and Hong Kong): ‘There is a common perception that an arbitration tribunal’s decision will be more grounded in commercial considerations than that of a judge…. In some commodity trade arbitrations, the tribunal may decide not to apply the law strictly and to make an award that reflects its view of what the trade would regard as fair. This is generally recognised and accepted by the parties, who submit to the judgment of others who know how the market works.’ Natalie Moore (England): ‘In the field of shipping, clients often prefer their dispute to be referred to “three commercial men sitting in London” (as the arbitration clause is often worded) who are familiar with shipping matters…The decision making is likely to be more rough

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76 77 78

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Born is wary of the general civil court: ‘many national courts are distressingly inappropriate choices for resolving international commercial disputes.’76 He favours the (expensive) three-member arbitral panel: ‘hardly any national courts can offer the breadth of resources and experience possessed by a tribunal of three experienced international arbitrators.’77 But the technical advantage of arbitral tribunals might be exaggerated or illusory. Court can be informed by expert opinion. Specialist courts can be constituted whose members have experience of particular branches of commerce and even technical expertise. Furthermore, experts regularly address expert arbitral tribunals, so that there has been no saving in time and money devoted to these problems requiring ‘expertise.’ Finality. There is (in general) no appeal from arbitral awards.78 Jan Paulsson says, ‘To give [an arbitral tribunal] the power to make a final and unreviewable decision may be a frightening thing.’79 But he dismisses the idea of appeal to national courts80 and he notes how difficult and expensive (‘daunting’) it would be to create a system of intra-arbitral ‘appeal.’81 In fact arbitral ‘finality’ is a highly contestable ‘advantage.’82 Arbitration can involve the highest stakes. Arbitrators, no less than judges, can be lazy, perverse, inattentive, and simply fallible. The problem is that many legal systems operate infamously baroque and entrenched appeals from courts. Against that background, arbitration becomes an attractive escape from judicial appeals. Perhaps one must acquiesce in the practice that arbitrators’ factual determinations are beyond scrutiny (except in so far as such determinations are evidence of significant procedural shortcomings and misconduct). But what if the tribunal has misapplied the applicable law? and ready, but my clients (charterers, ship-owners, insurers etc) seem to accept that this is the traditional way of litigating shipping disputes.’ G. Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing 8 (4th ed., 2013). Id. at 9. Furthermore, respondents to a 2006 poll strongly opposed intra-arbitral appeals: qmc Survey 15 (Queen Mary College, London, 2006) (over 90 per cent opposed; poll of 103 counsel, mostly internal, concerned with arbitration). Paulsson at 291. Id. Id. at 292–93. G. Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing 5–6 (4th ed., 2013).

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4.

Superior Cross-border Enforcement. This is the contention that foreign awards are more easily enforced than foreign judgments.83 For example, Born says that ‘there are significant obstacles to obtaining effective enforcement of foreign court judgments in many cases.’84 This is an important pro-arbitration consideration in many cases. But this point is losing strength or it might even have become a nonpoint within the European Union and between well-established major trading nations who have bilateral arrangements85 (admittedly in the wider world enforcement of foreign judgments is underdeveloped).86 Furthermore, the New York Convention (1958) is not the fast-route to enforcement which some had supposed. Were it otherwise, why would there be an established practice of award-holders settling for significant percentage reductions of the amount of award?87 Jan Paulsson (2014) gave this verdict on the New York Convention (1958): ‘Some of the largest countries in the world have signed the New York Convention but are incapable of demonstrating an acceptable record of judicial compliance with its terms.’88 He adds:89 ‘Enforcement of

83

Identified as the weakest feature of the arrangements for the Singapore International Commercial Court, D Wong, ‘The Rise of the International Commercial Court…’ (2014) 33 cjq 205,226; see also Singapore Int’l Commercial Court Report (2013), paras 42 ff. G. Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing (4th ed., 2013), 152, see generally Chapter 6. Bühring-Uhle at 60, 66, 68. On the nature and status of the Hague Convention on Choice of Court Agreements (2005), G. Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing 24 (4th ed., 2013). Hence the exhortation in ALI/UNIDROIT PRINCIPLES (2006), Principle 30: ‘Recognition: A final judgment awarded in another forum in a proceeding substantially compatible with these Principles must be recognized and enforced unless substantive public policy requires otherwise. A provisional remedy must be recognized in the same terms. Comment: P-30B …a judgment given in a proceeding substantially compatible with these Principles ordinarily should have the same effect as judgments rendered after a proceeding under the laws of the recognizing state. Principle 30 is therefore a principle of equal treatment…Only the limited exception for non-recognition based on substantive public policy is allowed when the foreign proceedings were conducted in substantial accordance with these principles.’ qmc Survey 9 (Queen Mary College, London, 2008) (“54 per cent of the corporations surveyed negotiated a settlement amounting to over 50 per cent of the award; 35 per cent settled for an amount in excess of 75 per cent of the award.”). Paulsson at 264. Id.

84 85 86

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foreign arbitral awards may be described as routine only in countries that have well-established institutional traditions and mature legal orders.’ Confidentiality.90 This is the well-known reputational and tactical advantage of conducting arbitration behind closed doors and receiving an award under a veil of secrecy. Born notes that in open court proceedings media bias in favour of local parties might become significant91 (but the flip-side is that disclosure of a local party’s embarrassing malpractices might engender local hostility).92 Born (2014) notes ‘empirical’93 and ‘anecdotal’94 support for ‘confidentiality’ as having ‘substantial value.’ A 2006 poll of 53 leading arbitration practitioners records that confidentiality was third in the list of perceived advantages (after neutrality of the forum and cross-border enforcement of awards).95 However, according to the qmc (2010) report, 65 per cent of respondents did not regard the absence of confidentiality in court proceedings as a ‘principal’ reason for choosing arbitration.96 England has endorsed arbitral confidentiality,97 but not all legal systems have promoted that feature.98 Globally, it has been said that arbitral

Andrews, Arbitration (2013), Chapter 8; M. Pryles, Confidentiality, in Newman And Hill 110 n.2 (2014), Chapter 5; another’s conclusion that confidentiality was in fact the most important factor: H, Bagner, Confidentiality: A Fundamental Principles in Commercial A ­ rbitration, 18 J. of Int’l Arb. 243 (2001). 91 G. Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing 5 (4th ed., 2013). 92 Id. 93 Born (2014) at 2781 n.6, adopting the preceding note’s findings and qmc SURVEY (2006): p. 6 (54 per cent, citing ‘privacy’) (wrongly citing qmc 2008) and qmc SURVEY (2010) chart 25 p. 29 (62 per cent saying ‘very important’). 94 Id. at 2781 n.7. 95 Bühring-Uhle at 107–09. 96 qmc Survey 30 (Queen Mary College, London, 2010) (136 respondents, mostly ‘counsel,’ international or external). 97 Andrews, Arbitration (2013), Chapter 8; M. Pryles, Confidentiality, in Newman And Hill (2014), Chapter 5. 98 Id.; uncitral’s Notes on Organizing Arbitral Proceedings (2012), para 31; C.A. Rogers & J.C. Jeng, The Ethics of International Arbitrators, in Newman And Hill 203 (2014), Chapter 7; Redfern & Hunter, International Commercial Arbitration (6th ed., 2014), 2.161 ff, noting Esso Australia Resources Ltd v. Plowman (1995) 193 clr 10, H Ct Aust (criticised P. Neill, Confidentiality in Arbitration 12 Arb. Int’l 287 (1996); and considered by Pryles, op cit., at 111–122); Commonwealth of Australia v. Cockatoo Dockyard Pty Ltd (1995) 36 nswlr 662; on us decisions, Redfern and Hunter, op cit. at 2.173 and Pryles, op cit., at 137–140; on Swedish law, Redfern and Hunter, op cit. 2.176 and Pryles, op cit., at 140–142; French law, Redfern

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c­ onfidentiality has ‘suffered considerable damage.’99 Born (2014) notes100 that ‘different jurisdictions have arrived at materially different solutions . . . and institutional rules continue to provide divergent treatments of the subject of confidentiality.’ Finally, some foreign court systems might be prepared to close their doors: in Singapore the International Commercial Court will hold some hearings in camera.101 vi

Arbitration’s Unholy Trinity: Expense, Delay, and the Bias of Party-Appointees

Expense and Delay. Some national courts are slow.102 Cheap litigation seems to be elusive. The slow and technical nature of most state systems of litigation provided impetus for arbitration which, once upon a time, was perceived to be quicker and less expensive than court proceedings. But hopes of a brave, new world of privatised cheap and zippy justice have not been realised.103 Instead there and Hunter, op cit. 2.182 and Pryles, op cit., at 142; icsid decisions, Redfern and Hunter, op cit. 2.185 ff; World Intellectual Property Organization decisions, Redfern and Hunter op cit., Pryles, op cit, 150–151. And for the nz Arbitration Act, 1996, Section 14, Pryles, op cit., at 143. For analysis of institutional rules, Pryles, op cit, at 147 ff. And on the movement towards ‘transparency’ in certain spheres of arbitration, see the new Art 1(4) on transparency in uncitral Arbitration Rules (2013), http://www.uncitral.org/pdf/english/texts/ arbitration/arb-rules-2013/UNCITRAL-Arbitration-Rules-2013-e.pdf more generally on transparency, K-H Böchstiegel, Perspectives on Future Developments in International Arbitration, in Newman and Hill (2014), Chapter 12 at 327; The Rise of Transparency in International Arbitration: The Case for the Anonymous Publication of Arbitration Awards (A. Malatesta & R. Sali eds., 2013) (also containing surveys of systems and institutional rules by various contributors); earlier, concerning publication of anonymous awards, J. Lew, The Case for the Publication of Arbitration Awards, in Schultsz & Van Den Berg (1982) 223. 99 M. Hunter & A. Phillips, The Duties of an Arbitrator, in Newman And Hill 486 (2014), Chapter 20. 100 Born (2014) at 2783. 101 Singapore Int’l Commercial Court Report 32–33(2013). 102 The problems of serious delay in some nation court systems is noted by Paulsson 186–187 (2014) (concerning France, Italy, and India). 103 Lord Mustill, The History of International Commercial Arbitration, in Newman And Hill 31 (2014) Chapter 1.

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are serious issues concerning both the high cost104 and delay105 of conducting some arbitration proceedings.106 Born concludes on this matter as follows: ‘on balance…international arbitration does not generally have either dramatic speed and cost advantages or significant disadvantages as compared to national court proceedings.’107 Time and expense matter even in ‘top end’ international commercial arbitration. Few arbitration references can proceed on the basis that the parties enjoy carte blanche to ‘turn over every stone irrespective of the time…or cost.’108 Instead arbitration expenses incurred in very large matters, such as oil and gas disputes, are expected to ‘run to budget’ agreed by in-house counsel.109 Bias. As mentioned above, in three-member arbitration, there is the intrinsic problem (‘arbitration’s Achilles’ heel’110 or ‘the worm in the apple’111) 104 qmc Survey 6–7, 19–20 (2006); qmc Survey 8–9 (2013); Bühring-Uhle 107–09 (2006); C. Newmark, Controlling Time and Costs in Arbitration, in Newman And Hill (2014), Chapter 21. 105 qmc Survey 8–9 (2013); Bühring-Uhle at 107–09; compare these general estimates: (i) a year from ‘will easily pass from the request for arbitration’ until the delivery of the award (M. Hunter & A. Phillips, The Duties of an Arbitrator, in Newman And Hill 484 (2014), Chapter 20), or (ii) ‘in the large majority of cases an award is reached around two to three years after initiation of the procedure’ (Bühring-Uhle at 86); A.J. van den Berg, Organizing an International Arbitration: Practice Pointers, in Newman And Hill 417 (2014), Chapter 17, placing the blame on parties’ willingness to grant each other extensions of time in preparation for the hearing; C. Newmark, Controlling Time and Costs in Arbitration, in Newman And Hill (2014), Chapter 21; P.M. Patocchi & H. Frey-Brentano, The Provisional Timetable in International Arbitration, in Briner, Liber Amicorum 575 (2005); on ‘fast-track’ arbitration, id. at 598; and on the parties’ supine tendency (based on fear of upsetting the decisionmaker) when confronted by over-busy or dilatory arbitrators, id. at 599 (on that problem, noting J. Werner, Who controls speed?, in Improving International Arbitration: The Need for Speed and Trust, Liber Amicorum Michel Gaudet (1998); E. Gaillard, Fast-track arbitration and beyond, in Improving International Arbitration, at 28 and other essays in that volume). 106 G. Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing (4th ed., 2013) 49. 107 Id. at 8. 108 C. Newmark, Controlling Time and Costs in Arbitration, in Newman and Hill (2014), Chapter 21, at 505. 109 R.N. Hill, International Arbitration from the Perspective of Corporate Counsel, in Newman and Hill (2014), Chapter 11 at 312–13. 110 Paulsson at 165; but for the contention that the interim and prehearing-phase is the ‘weakest link’ in the arbitration chain, see text at xxx below. 111 Paulsson at 153, 155.

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of party-appointed arbitrators112 who, although expected to be impartial and independent,113 can often show (actual bias), or be suspected of possessing (apparent bias), loyalty to their appointing party. Loyalty is the converse of disinterestedness. The underlying motivation might be both (i) the wish to help 112 A.F. Lowenfeld, The Party-Appointed Arbitrator: Further Reflections, in Newman And Hill (2014), Chapter 19 (earlier Lowenfeld, The Party-Appointed Arbitrator in International Controversies; Some Reflections, 30 Texas Int’l l.j. 59 (1995) & (1996) Mealey’s Int’l Arbitration Reports # 11); iba Rules of Ethics for International Arbitrators (1987) and iba Guidelines on Conflicts of Interest in International Arbitration (2004); Jan, Paulsson Ethics, Elitism, Eligibility 14 J. of Int’l Arb., 13(1997); C.A. Rogers and J.C. Jeng, The Ethics of International Arbitrators, in Newman And Hill (2014), Chapter 7; C.A. Rogers, Ethics in International Arbitration (2014). 113 icc Art 7(1) (the word ‘independent’ is used but not ‘impartial’); lcia (2014) Art 5.3; aaa Art 7(1); uncitral Art 10(1); scc 17(1); wipo Art 22(a); G. Aksen, The Tribunal’s Appointment, in Newman And Hill 334 (2014), Chapter 13, dismisses as ‘of no consequence’ the issue whether the arbitrator should be merely independent or impartial, or both, preferring the view that these words ‘encapsulate not so much a rule of law as an internalized ethos that is an amalgam of independence and impartiality . . . that an arbitrator be able to decide a case on it facts and law in accordance with his best judgment.’ See, id. at 337 on the curious pre-appointment interview system; see id. at 338–41 on partyappointed arbitrators’ selection of the chair/President (on this last topic, C.R. Seppala, Obtaining the Right International Arbitral Tribunal: A Practitioner’s View 22 Mealey’s Int’l Arb. Rep. 26, 34 (2007)); M. Rubino-Sammartano, Real and Feared Arbitrator Conflicts of Interest, in Newman And Hill 248 Chapter 9 (giving the example of an associate professor who is an arbitrator, with counsel from his own law school, who is a senior professor; a better example would be that the latter professor is in a different university but might have some influence on the arbitrator’s academic advancement in the relevant professional and scholarly sphere; and at 254 noting that the impartiality of arbitrators is especially important because there is no appeal from their finding of fact, citing Commonwealth Coatings Corp v. Continental Casualty Co., 393 us 145, per Black J; and at 266 considering the situation, as in Sherif Ben Nasser v Banque Nationale de Paris et Credit Lyonnais ca, Paris, Oct 14, 1993, where arbitrator X in a matter between A and B fails to disclose in an arbitration between M and N his ‘approach’ on the merits relating to the same matter as the A/B arbitration; and at 270, noting A v B [2011] ewhc 2345 (Comm), Flaux J, for a sole arbitrator’s involvement in separate matters for the firms of each parties); C.A. Rogers & J.C. Jeng, The Ethics of International Arbitrators, in Newman And Hill (2014), Chapter 7, notably at 187 ff.; iba Guidelines on Conflicts of Interest in International Arbitration (2004); and for other institutional ethical guidance, C.A. Rogers & J.C. Jeng, The Ethics of International Arbitrators, in Newman And Hill 178–79 (2014), Chapter 7. M. Hunter and A. Phillips, The Duties of an Arbitrator, in Newman And Hill 480 (2014), Chapter 20, cite the romantic but self-defeating example of the arbitrator who marries a claimant after the proceedings have begun.

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‘win’ the case (or reduce the scale of the defeat) and (ii) the wish to receive another appointment in future arbitration matters:114 the latter is the (not so) ‘hidden agenda of patronage.’115 The problem of wing-arbitrator ‘interest’ has led Jan Paulsson to propose that arbitration practice should move towards appointment of co-arbitrators by arbitral institutions.116 vii

Taking Stock: Do the Scales Tip in Favour of Court Proceedings Rather than Arbitration?

The arguments traditionally employed in favour of electing to use arbitration must be robustly evaluated. We have noted (in Section v) five advantages associated with arbitration, and here various counter-considerations can be summarised: (1) Neutrality: however, the fact that the system of party-appointed wing-­ arbitrators have problematic ‘loyalty’ and ‘interest’ is an intrinsic shortcoming of multi-member arbitral panels (this is ‘arbitration’s Achilles’ heel’117 or ‘the worm in the apple’118); (2) Expertise: but courts can be informed by expert opinion or specialist expert courts can be used; (3) Finality: this is a highly contestable ‘advantage’ considering that arbitration can involve the highest stakes; furthermore, arbitrators, no less than judges, can be lazy, perverse, inattentive, and simply fallible;

114 A.F. Lowenfeld, The Party-Appointed Arbitrator: Further Reflections, in Newman and Hill 470–471 (2014), Chapter 19, noting R Coulson’s comment that the neutrality of party-­ appointed arbitrators is a ‘fiction’: An American Critique of the iba’s Ethics for International Arbitration 4 J. of Int’l Arb. 103, 107–09 (1987). Lowenfeld suggests that the overtly partisan co-arbitrator will be ignored by the President and, if the merits are objectively for the ‘other side’s case,’ that co-arbitrator will be left to record a dissenting opinion; and at 472 Lowenfeld recommends that, in the interest of neutrality, party-appointed arbitrators are wary of questioning witnesses (on aggressive questioning as a potential indication of lack of impartiality, C.A. Rogers and J.C. Jeng, The Ethics of International Arbitrators, in Newman And Hill 194 n.62 (2014), Chapter 7). 115 Paulsson at 155. 116 Id. at 276–91 (and on the problem 153–167). 117 Id. at 165. 118 Id. at 153, 155.

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(4) Superior cross-border enforcement: in fact there is increasing opportunity (notably between eu jurisdictions) to enforce foreign judgments; furthermore, enforcement under the New York Convention (1958) is not always routine within some jurisdictions; (5) Confidentiality: 65 per cent of respondents did not regard the confidentiality of arbitration as a ‘principal’ reason for choosing arbitration119 and in some jurisdictions arbitral confidentiality has ‘suffered considerable damage.’120 We have also noted, in Section vi, the problems of expense, delay, and bias which can arise within arbitration. Finally, when efficient, reliable, and commercial astute courts are juxtaposed with the system of commercial arbitration, it might be that the scales tip strongly in favour of court proceedings, at any rate if the relevant courts offer a modernised and efficient litigation system (for example, in England or in another leading legal system). Advantages offered by such a court system are: (i) It is generally easier to establish court jurisdiction; by contrast, fixing the arbitral tribunal’s jurisdiction and appointing the arbitrator(s) can be expensive, slow, and cumbersome. (ii) Courts can exercise more consistent and rigorous case-management ­(although improvements can be made). Arbitrators recognise such techniques, but the practice is less developed and consistent. (iii) In court proceedings, summary judgment121 by accelerated final judgment offers speedy resolution of bad or weak cases. But arbitral proceedings proceed slowly and expensively to the bitter end of the final award without summary disposal (unless there is a jurisdictional or procedural ground for terminating the proceedings at an earlier stage).122 Linklaters

119 qmc Survey 30 (Queen Mary College, London, 2010) (136 respondents, mostly ‘counsel’, international or external). 120 M. Hunter and A. Phillips, The Duties of an Arbitrator, in Newman And Hill 486 (2014), Chapter 20. 121 Neil Andrews, Civil Processes v. 1: Court Proceedings (2013), 10.79 ff for details of cpr Part 24 and related final dispostive mechanisms without waiting for trial. 122 Bühring-Uhle at 68.

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(London)123 and Slaughter and May (London) lamented the absence of summary or default124 procedures in arbitration.125 (iv) Arbitral awards are beyond review on the factual or legal merits (although within the English system of arbitration, there is a controlled126 opportunity to appeal against an award on a point of English substantive law). By contrast, within the public system of court litigation, appeals provide a safety-valve in case the first instance court makes a major blunder in its assessment or reception of evidence, application of the law, and grant or refusal of remedies (although in England recourse to appeal is not a de novo re-hearing of the evidence and is not automatic but, instead, sensibly controlled so as to eliminate hopeless appeals).127 (v) Judgments given by the English Commercial Court, or other High Court judges, are regarded as more tightly reasoned than arbitral awards and the results tend also to be more predictable than awards. Slaughter and May (London) state:128 ‘we consider there to be a greater degree of uncertainty in the result of an arbitration than would be the case in the Commercial Court.’ Born echoes this:129 ‘Three-person arbitral tribunals frequently seek to produce unanimous awards, which can result in some degree of compromise and horse-trading. On balance, this can produce outcomes that may be somewhat less crisp and principled than those of a rigorous national court judge…’ Michael Mustill has emphasised the need for rigour in commercial arbitration, suggesting that it should aim to be:130 ‘An out-of-court process, freed from 123 Heidelberg Conference National Report (2011) (filed with author). 124 P.M. Patocchi & H. Frey-Brentano, The Provisional Timetable in International Arbitration, in Briner, Liber Amicorum 575, 598–99 (2005); D.E. Tunik, Default Proceedings in International Commercial Arbitration [1998] Int’l a.l.r 86. 125 Heidelberg Conference National Report (2011) (filed with author). 126 s 69, Arbitration Acy 1996; Neil Andrews, Civil Processes v. 2: Arbitration and Mediation (2013), 18.67 ff; Arbitral Awards and Errors of English Law: Refining The Law – Making Function of the Judicial Appeal System, in The Culture of Judicial Independence: Rule of Law and World Peace (S. Shetreet ed., 2014), 340–62. 127 On the ‘permission’ system in English appellate practice, see Andrews, Civil Processes v. 1, Court Proceedings (2013), 15.25 to 15.40, 15.104 and 15.105. 128 Heidelberg Conference National Report (filed with author). 129 G. Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing (4th ed., 2013) at 9. 130 Lord Mustill, The History of International Commercial Arbitration, in Newman and Hill 27 (2014).

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pre-ordained rules but conducted in an objective atmosphere in a way which, without being pedantic, involves enough intellectual rigour to achieve an intellectually honest result.’ He adds: ‘business people…want their initial risk apportionments to be reflected in a predictable way, by hard-edged decisions.’ viii

Concluding Remarks: Points Weighing in Favour of Courts and Against Arbitration131

Is arbitration a preferable system for foreign litigants? It is suggested that, for the following reasons, the foreign litigant’s ‘better bet’ is to opt for court litigation before efficient, reliable, and commercial astute judges sitting in jurisdictions possessing a long reputation for national disinterestedness and rectitude.132 (i) Establishing court jurisdiction is generally less troublesome than attempting to fix the arbitral tribunal’s jurisdiction and appointing the arbitrator(s). (ii) Three member arbitration panels are riven by (apparent, if not actual) bias. It is said that the benefit of having a party-appointed arbitrator ‘fighting one’s corner’ within the tribunal will be illusory. But the institutionalising of bias is a major flaw within the design of such arbitration. (iii) Courts exercise more consistent and rigorous case-management than arbitral tribunals. (iv) In general, arbitration cannot avoid the ‘end-game’ of a final award following a hearing. By contrast, in some court proceedings summary judgment can produce cheaper and quicker results. (v) The arbitral process can sometimes be more expensive, and/or slower, than court proceedings. (vi) Compared with arbitral awards, judgments given by High Court judges in England are regarded as more closely reasoned and the results more predictable. 131 A possible tenth problem is that arbitration is much less likely to be available to deal with multi-party or interlinked disputes; this is because arbitral consent, ex ante or after the dispute has arisen, is required to permit a party to sue or be sued by that process: BühringUhle at 48–49; 101–02 (with a bibliography at n 318); s.i. Strong, Mass and Collective Arbitration in National and International Law (2013). 132 For example, in the English Commercial Court.

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(vii) The arbitration system is intensely committed to ‘finality’. It is a ‘onestop’ process (subject only to limited powers of review aimed at ensuring compliance with jurisdictional and procedural requirements).133 The predominant position in international commercial arbitration is that the defeated party cannot challenge the arbitral awards on the factual or legal merits (however, England permits High Court appeal for errors of English substantive law; although the parties can, and often do, exclude that possibility).134

Appendix

Abbreviations

ANDREWS, COURT PROCEEDINGS (2013): Neil Andrews, Andrews on Civil Processes, vol 1, Court Proceedings (Intersentia, Cambridge, 2013) ANDREWS, ARBITRATION (2013): Neil Andrews, Andrews on Civil Processes, vol 2, ­Arbitration and Mediation (Intersentia, Cambridge, 2013) BORN (2014): Gary B Born, International Commercial Arbitration (2nd edn, Kluwer, Netherlands, 2014) (3 vols) BRINER, LIBER AMICORUM (2005): Global Reflections on International Law, Comemrce and Dispute Resolution: Liber Amicorum in Honour of Robert Briner (icc, Paris, 2004) BÜHRING-UHLE (2006): C Bühring-Uhle, Arbitration and Mediation in International Business (2nd edn, Kluwer, The Hague, 2006) DICEY (2012): Dicey, Morris and Collins on the Conflicts of Laws (15th edn, London, 2012) HEIDELBERG CONFERENCE (2011) NATIONAL REPORT: a series of national reports on arbitration filed with the author; icc (2012): the International Chamber of Commerce Rules on Arbitration lcia (2014): the London Court of International Arbitration Rules (2014) NEWMAN AND HILL (2014): LW Newman and RD Hill (eds), The Leading Arbitrators’ Guide to International Arbitration (3rd edn, New York, 2014) PAULSSON (2014): J. Paulsson, The Idea of Arbitration (Oxford 2013) 133 ss 67, 68, Arbitration Act 1996, respectively (which are mandatory, and hence cannot be excluded by agreement). 134 s 69, Arbitration Act 1996 can be excluded by agreement (e.g., Art 26.8, lcia) (2014), Art 34.6, icc Rules (2012); see generally Andrews, Arbitration (2013), 18.67 ff.

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QMC SURVEY (2006) (Queen Mary College, London): ‘International Arbitration: Corporate Attitudes and Practices’ QMC SURVEY (2008) (Queen Mary College, London): ‘Corporate Attitudes and Practices: Recognition and Enforcement of Foreign Awards’ QMC SURVEY (2010) (Queen Mary College, London) (Queen Mary College, ­London): ‘Choices in International Arbitration’ QMC SURVEY (2013) (Queen Mary College, London) (Queen Mary College, London): ‘Corporate Choices in International Arbitration: Industry Perspectives’ SINGAPORE INT’L COMMERCIAL COURT REPORT (2013): Report of the Singapore International Commercial Court Committee (2013): UNCITRAL ARBITRATION RULES (2013): UNCITRAL Arbitration Rules (2013) (2010 ­revision with new Art 1(4), added 2013)

chapter 21

Legal Aspects Regarding Foreign Parties in Austrian Civil Courts Walter H. Rechberger i

Introduction

This article analyses the legal aspects with regard to foreign parties in the Austrian civil procedure code. It will focus on several different topics: international jurisdiction, capacity to conduct proceedings, security on costs, service of documents, judicial impartiality and independence, and the composition of the bench. There will also be taken into account differences between foreigners coming from Member States of the eu and those coming from third states. ii

Definition of a Foreigner

Before going into detail on specific Austrian provisions dealing with foreign parties, it has to be clarified in advance what a foreign party under Austrian law is. A Citizenship The easiest definition of a foreigner may be “someone who does not have the Austrian citizenship.”1 This concept is followed in various Austrian Acts on civil law and civil procedure law, like Section  3 of the Code of Civil Procedure (Zivilprozessordnung [zpo], ccp)2 and Section  9 of the Private International Law Act (Gesetz über das internationale Privatrecht [iprg]).3 Article xxix of the Introductory Law for the Civil Procedure Code (Einführungsgesetz zur zpo) and Article x of the Introductory Law for the Judicature Act (Einführungsgesetz zur Jurisdiktionsnorm) explicitly stipulate that

1 See, e.g., Sec. 2 para. 1 nr. 20a of the Asylum Act 2005. 2 Cf. Schubert, Kommentar zu den Zivilprozessgesetzen II/1 (Fasching &Konecny eds., 2nd ed., 2002), § 3 zpo mnr 1. 3 Neumayr, abgb, (Koziol et al. eds., 4th ed., 2014) § 9 iprg mnr 2.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_022

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people without the Austrian citizenship are considered to be foreigners under the Austrian ccp. B Residence A different criterion to define a foreign party may be the lack of a (permanent) residence in Austria. Of course in most cases people without an Austrian residence also do not have the Austrian citizenship. Nevertheless, about 12.5% of the Austrian population (1,066,114 out of 8,507,786 people as of January 1, 2014) do not have Austrian citizenship. The scope of application of some civil procedural rights, especially regarding service of documents, is not limited to Austrian citizens but to people with a (permanent) residence within the Austrian border. Given such regulations, this criterion also seems plausible. C eu-Exception Article 18 of the Treaty of the Functioning of the eu (tfeu) provides that “[w]ithin the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.” Hence, provisions of the first category may not be applied regarding eu citizens.4 Additionally, indirect discrimination shall also be prohibited, i.e., when an apparently neutral provision (which does not explicitly limit its scope of application to the nationality) would put persons from a different eu member state at a particular disadvantage compared with Austrian citizens. This applies to the second category dealing with residence.5 In summary, although eu citizens may fall under the scope of application of provisions regarding foreign parties and may therefore be considered as such; eu law prohibits any discrimination regarding nationality or residence. Consequently, the provisions on foreign parties do not apply to eu citizens, rather, they apply only to people from other countries. iii

Interim Conclusion

Concluding this argument, there are two different criteria to define a foreign party: either on a legal basis due to the citizenship or on a factual basis due to the residence. eu citizens however, may not be discriminated against.

4 Kucsko-Stadlmayer, euv/aeuv (Mayer Stöger eds., 2013) Art 18 aeuv mnr 38. 5 Id. at mnr 43.

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iv

International Jurisdiction

A “Inländische Gerichtsbarkeit” Normally, the jurisdiction of national courts is limited by the principle of territoriality. Austrian courts only have jurisdiction in cases involving persons or objects within the territory of Austria.6 Furthermore, the jurisdiction of Austrian courts may be based on European regulations or on bilateral or multilateral treaties or on international law. B International Treaties As a Member State of the European Union, Austria is bound by the European Regulation on Jurisdiction and Enforcement7 and other regulations dealing with jurisdictional issues. Additionally, Austria is party to several international multi- or bilateral treaties, especially the Lugano Convention on Jurisdiction and Enforcement.8 Both contain a direct international system of jurisdictions, which replaces the national concepts as far as these conventions or regulations are applicable. C International Jurisdiction In addition, Austrian courts also have jurisdiction to decide other cases with sufficient links to Austria. The sufficient link to Austria may be given due to the Austrian citizenship of one or more parties. However, the Austrian Judicature Act (Jurisdiktionsnorm) does not contain a general rule that every Austrian citizen may file a lawsuit before Austrian courts in any case as it can be found in Article 14, or 15 of the French Code Civil. Nevertheless, Austrian citizenship may establish jurisdiction in Austrian courts in cases of divorce proceedings and several non-contentious proceedings.9 For citizens of other eu Member States, the special rules of the Brussels IIa Regulation10 apply. 6 Rechberger/Simotta, Zivieprozessrecht 8th ed. 2010, mnr 72. 7 Council Regulation (ec) No 44/2001 of 22 December, 2000, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brüssel I); Regulation (eu) No 1215/2012 of the European Parliament and of the Council of 12 December, 2012, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (Brüssel Ia). 8 Council Regulation (ec) No 2201/2003 of 27 November, 2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility; repealing Regulation (ec) No 1347/2000 (Brüssel IIa). 9 Sec. 76, 114a of the Judicature Act. 10 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2007/712/EC (Lugano Convention 2007).

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Even if there are no express provisions on the international jurisdiction of Austrian courts in situations where there exists connections to another country, Austrian courts have jurisdiction according to the Austrian rules on jurisdiction if an Austrian court has jurisdiction. v

“Ordination”

In cases where a specific venue, according to Austrian civil procedure law, cannot be found, jurisdiction might still fall within Austrian courts if Austria is obliged to exercise jurisdiction under international law (e.g., by a number of international treaties in the field of traffic law) or whenever litigation abroad is impossible or would be unreasonable.11 The Austrian Supreme Court (Oberster Gerichtshof) then has to designate a court that may adjudicate the case (socalled “Ordination” of a court). Litigation abroad is considered unreasonable if, e.g., the judgment could not be recognized or enforced in Austria, if an urgent decision could not be reached abroad, if by litigation abroad a party would run the risk of being persecuted for political reasons, and – arguably – if the litigation abroad would be too expensive.12 However, only Austrian citizens or people who live in Austria have the right to file such an application based on the fact that litigation abroad is impossible or would be unreasonable to the Austrian Supreme Court. In this regard, only Austrian citizens or Austrian residents, but not foreigners, are protected by the law. vi

Specific Provisions in the Austrian Code of Civil Procedure

Austrian courts found competent to adjudicate civil law disputes must apply the Austrian ccp as lex fori. As a consequence, specific rules relevant only for Austrian citizens or for foreigners may not be applied or may become applicable. These rules shall be outlined in the following. A Capacity to Conduct Proceedings In general, a party must have the capacity to conduct proceedings (Prozessfähigkeit) or need legal representation (gesetzliche Vertretung). Whether a party fulfils this requirement is generally decided by the same laws determining 11 12

Sec. 28 of the Judicature Act. Rechberger/Simotta, 8th ed., mnr 89; Mayr in Rechberger (ed.), Kommentar zur Zivilprozessordnung, 4th ed. (2014) § 28 jn mnr 3.

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his citizenship status.13 However, a foreigner who lacks the capacity to conduct proceedings according to the citizenship laws will be treated as having legal capacity, if he was able to conduct proceedings under Austrian law.14 Therefore, a foreign party has legal capacity to conduct proceedings if either Austrian law or the law of his citizenship grants it regardless of the fact that the other legal order declines it. These provisions protect Austrian parties litigating against foreign parties in Austria from the lack of enforceability because of the deficient legal capacity according to the foreign law or the deficient legal capacity according to Austrian law although the legal act was permissible under the foreign legal order.15 B Security of Costs To ensure that the costs of the winning party will be paid, a foreign plaintiff is required to make a security deposit for legal costs upon the request of the defendant. According to the general rule in Austrian Civil Procedure law, a foreign party is someone without the Austrian citizenship.16 The rationale behind this rule is the enforceability of a costs claim. In this regard it seems more appropriate to link the obligation to provide a security deposit with a habitual residence. To a certain degree this principle is fulfilled. There is no legal obligation to provide security for costs if an international agreement provides otherwise, the claimant habitually takes residence in Austria, a cost decision by an Austrian court is subject to enforcement in the claimant’s state of residence, or if the claimant disposes of sufficient immovable assets in Austria.17 This list is not exhaustive.18 In accordance with the principle of non-discrimination, eu citizens are not required to make a security deposit for legal costs if the filed action is related to the exercise of the freedoms granted by the ec treaty.19 13 See Sec. 9, 12 of the International Private Law Act. 14 Sec. 3 ccp. 15 Schubert, Kommentar zu den Zivilprozessgesetzen II/1 (Fasching & Konecny eds., 2nd ed. 2002), § 3 zpo mnr 1. 16 Schoibl in Kommentour zu den Zivilprozengeretoel II/1 (Fasching & Konecny eds., 2nd ed. 2002) § 57 zpo mnr 47. 17 Sec. 57 ccp. 18 Schoibl in Kommentour zu den Zivilprozengeretoel II/1 (Fasching & Konecny eds., 2nd ed. 2002), § 57 zpo mnr 71. 19 ecj 02.10.1997, C-122/96, Stephan Austin Saldanha and mts Securities Corporation v Hiross Holdung AG, European Court Reports 1997, I-5325; Fucik in Rechberger, zpo, 4th ed., § 57 zpo mnr 6.

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C Service of Documents Parties or representatives, who do not have an address for service in Austria, may be required, by court order, to nominate a representative with an Austrian address for service. If a party or a representative does not comply with such a request within a certain period of time, service of documents does not need a specific form documenting the service process.20 Such a request may also be addressed to an Austrian citizen without an address for service in Austria.21 This principle does not apply to parties or representatives from eu Member States.22 D Taking Evidence Abroad Taking evidence abroad causes several difficulties and has special implications. For example, the court is empowered to issue a time limit for the gathering of evidence on the request of either party if the taking of evidence shall take place outside of Austria.23 Such rules are not exclusive to foreign parties or parties living abroad, they may also be applicable in proceedings between two Austrian citizens with Austrian residence. E Enforcement of Foreign Judgments If Austrian courts have no jurisdiction to decide the matter and the plaintiff asks for enforcement in Austria, special rules on the enforcement of foreign judgments become applicable. These rules are pertinent irrespective of the parties’ residence or citizenship. They are applied individually because the title to be enforced comes from a foreign country.24 However, in the case of the necessary exequatur proceeding, one exception exists: if a party without a residence in Austria has not had the opportunity to participate in the exequatur proceedings, the Enforcement Act25 extends the time limit to file an appeal (Rekurs) from one month to two months. Thereby, the difficulties of foreign parties in organizing a legal defense are taken into consideration.26 20 Sec. 98 ccp. 21 Frauenberger-Pfeiler in Frauenberger-Pfeiler, Raschauer, Sander, Wessely (eds.), Österreichisches Zustellrecht, (2d ed., 2012) (2012) § 98 zpo mnr 4. 22 Frauenberger-Pfeiler in Frauenberger-Pfeiler, Raschauer, Sander, Wessely, 2nd ed. § 98 zpo mnr.5; Bajons, Kommentar ze den Zivilprozessgesetzen V/2, (Fasching & Konecny eds. 2nd ed. 2010), Art 8 EuZVO mnr 43; Bajour, Kommenteur zu den Zivilprozengesetzen V/2 (Fasching & Konecny eds. 2nd ed. 2010). 23 Sec. 279 ccp. 24 Rechberger/Oberhammer, Exekutionsrecht, (5th ed. 2009) mnr 119; Sec. 79 Enforcement Act [Exekutionsordnung]. 25 See sec. 84 para. 2 nr. 1. 26 Jakusch in Exektionsordnung, Angst (ed. 2nd ed. 2008) § 84 mnr 4.

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One may argue that such an extension of time should exist every time a foreign party becomes aware of any proceedings for the first time. Regarding the exequatur proceedings, an additional aspect has to be taken into account: the so-called “eventual principle” (Eventualmaxime).27 Correspondingly, a party must present all grounds for which the judgment shall not be recognized in the appeal or the party will be prohibited to do that at a later stage due to the law.28 Such preclusion is an exception and therefore requires the extension of the time limit. Whereas in other proceedings, the legal consequences are not as severe.29 vii

Foreigners and Austrian Judges

A Judicial Impartiality and Independence Article 6 of the European Convention on Human Rights (echr), inter alia, provides for the impartiality of a tribunal deciding civil rights and obligations. Impartiality means, absence of prejudice or bias.30 Hence, the court must be free of bias with regard to its decision, which limits undue influence by information from outside the court room, or any pressure whatsoever, by the fact that one party comes from a foreign country. Instead, the judge’s decision must be founded on objective arguments based on what has been put forward during the trial.31 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.32 If a judge was preoccupied because of the nationality of a party, he could be challenged. However, in regard to impartiality caused by the nationality of one party there is no case reported. B Composition of the Bench According to the Service of the Judiciary Act33 (Richter- und Staatsanwaltschaftsdienstgesetz), lawyers aspiring to become judges must be Austrian citizens. Thus, foreign parties are faced with a single judge or a panel of judges 27 28 29 30 31 32 33

Sec. 84 para. 2 nr. 2 of the Enforcement Act. Slonina, Kommentar zur Exekutionsordnung (Angst & Oberhammer eds. 3rd ed. 2015) § 84 mnr 19. mnr 5. Piersack v. Belgium, ECtHR [1982] no. 8692/79, para. 30. Viering, Theory and Practice of the European Convention on Human Rights in Van Dijk/ van Hoof/van Rijn/Zwaak (eds. 4th ed. 2006) 614. Piersack v. Belgium, ECtHR [1982] no. 8692/79, para. 31. Sec. 2 para. 1 nr. 1.

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who are Austrian citizens. This is in conformity with eu law. The tfeu34 provides that the freedom of movement for workers shall not apply to employment in the public service. Said provision includes the work of a judge.35 People living in Austria who are not Austrian citizens thus have no means to ensure that a decision-maker will understand their plight because they likely will not share a similar background. In arbitral proceedings, however, foreign parties can generally appoint one arbitrator, thereby ensuring that somebody sitting on the panel will understand their legal background. Parties may even provide in their arbitration agreement that an arbitrator has a certain nationality.36 The general advantages and disadvantages of arbitration will be addressed by Neil Andrews in detail.37 As previously mentioned, Austria’s population consists of more than one million people who are not Austrian citizens. This equates to about 12.5% of the population. These foreign people are approximately equally divided between people from the European Economic Area and from third states. Currently, more people who live in Austria were born outside Austria (16.6%, or 1,414,624 out of 8,507,786 people as of January 1, 2014) or have a migrant background (19.4%, or 1,625,200 out of 8,374,800 in 2013).38 In conclusion, a significant percentage of the Austrian population, to some degree, has a foreign background, this population is not reflected on the judges’ bench. One can wonder whether this fact should to be changed – if not for legal reasons, then perhaps for political and social reasons. The same reasoning can apply, e.g., to the election process. Some people who have lived in Austria for decades are not entitled to vote in national parliament elections while Austrian citizens who have not been to Austria in decades may participate. In some countries, the legal voting prerequisites are not as strict as Austria’s. There may even be a slight majority of countries who allow foreign people to participate in elections.39 34 35 36 37

38

39

Art. 45 para. 4. Windisch-Graetz, euv/aeuv (Mayer & Stoger eds. 2012). Art 45 aeuv mnr 124. Hausmaninger Kommentar zu den Zivilprozessgesetzen IV/2, (Fasching & Konecy eds. 2nd ed. 2007), § 587 zpo mnr 115. See Neil Andrews, “The Foreign Party’s Choice between Arbitration and Court Litigation,” ch. 21 supra; Windesch-Graetz, euv/aeuv (Mayer & Stoge eds. 2012); Hausmaninger, Kommenteur zu den Zivilgestergesetzen IV/2 (Fasching & Konecy eds. 2nd ed. 2007). www.statistik.at/web_de/statistiken/bevoelkerung/bevoelkerungsstruktur/bevoelkerung _nach_migrationshintergrund/index.html. In Vienna, the percentage is considerably higher (approx. 49%; cf, Die Presse, Bildungsgrad der Migranten steigt, 14.11.2014, 8). derstandard.at/2000002208113/Wenn-das-Wahlrecht-kein-allgemeines-ist. Cf for more detailed information eudo-citizenship.eu/electoral-rights. About 24% of the adults living

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Austrian residents who lack citizenship may cautiously assume that in the distant future, they may one day, not only vote for the Austrian parliament, but also sit as judges in an Austrian courtroom. viii

Conclusion

Foreign parties are generally not treated any differently than Austrian parties, be it by law or by the court. The Austrian Civil Law Legislation contains only a few provisions dealing with foreign parties. This is even more remarkable considering that most of these rules originate from 1895. Even at the end of the 19th century the Austrian civil procedural rules on foreign parties were quite liberal from the beginning. One may speculate what the reason for this attitude may be. If I were to speculate, I would assume that the Austrian ccp was intended to apply in the former Danube Monarchy, which – as a multi-ethnic state – in some respects can be considered as an ancestor of today’s European Union. in Vienna are not allowed to participate in elections because they do not have the Austrian citizenship (cf “Die Presse,” 14.11.2014, 8).

chapter 22

State Liability for Judicial Wrongs: Impact of Rulings of the European Court of Justice and Debate in Italy Daniela Cavallini The interest in judicial liability has become stronger in Italy due to the pressure of the European Court of justice. The European Court of Justice showed that reforms are required in the Italian legislation and case-law to comply with the European obligations existing for all the Member States. This debate is an effect of the dialogue “top-down” between the European Court of Justice and the Italian Supreme Court, which started from a specific issue (State liability for serious infringement of European Union law by the judge) and led to a broad reform of the Italian legislation. As we know, in most countries, as well as in Italy, the liability of the judiciary is primarily a State liability and not the personal liability of the judge. State liability, moreover, due to the need to balance the institutional independence of the judiciary and its accountability, is limited to specific acts or activities of the judge. Compensation in fact is granted only in cases of intentional wrongdoing or gross negligence of the judge; in some countries it concerns only private actions or administrative activities, whereas official acts are excluded. This “protective screen” varies from country to country and it generally includes verdicts and judgments issued by the judge.1 The judge (and therefore the State) cannot be held responsible for the very substance of his decisions, except in serious circumstances.2 In some countries, in case of compensation, the State can take action towards the judge at a later stage.

1 Jörg Philipp Terhechte, Judicial Accountability and Public Liability – The German “Judges ­Privilege” Under the Influence of European and International Law, 13 Germ. L. J. 313 (2012). 2 In most established democracy the interpretation and application of the law – i.e. the content of judicial decisions – are not subject to any control except for appeal and judicial review (substantial accountability). On the contrary, the form of decisions can be subject to additional oversight (procedural accountability). Procedural accountability, for example, considers issues like the clarity of the decision or the significant delays in the handling of the file; Judicial Independence In Transition 1328 (A. Seibert-Fohred., 2012).

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_023

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These general principles have come under debate in recent years, following a set of rulings of the European Court of Justice and lastly the judgments in the case Traghetti del Mediterraneo v. Italy in 2006 and 2011.3 The main question is the State liability for infringement of the European Union law (eu law) by the judge. In 2003 (Köbler judgment),4 the Court had already affirmed the State liability for a breach of eu law by the judiciary adjudicating at last instance and a right of action requiring, under certain conditions, reparation. This principle, according to the Court, must be regarded as enhancing the quality of the legal system and thus, in the long run, the authority of the judiciary.5 In the two cases concerning Italy, the European Court specified that a national law cannot exclude, in a general manner, State liability for the infringement of eu law by the judge, by reason that such infringement results from an interpretation of law or an assessment of facts and evidence.6 The Court pointed out the responsibility of the Italian legislator and called for a reform in the field.7 The problem was that the Italian law (no. 117/1988) established State liability only in exceptional cases and only if committed with intention or gross negligence. But, more than that, the practice of Italian courts was so tolerant towards the judiciary that it resulted in a systematic dismissal of complaints brought against the Italian State. In other words, our law proved to be completely inefficient in the protection of individual rights and resulted in a sort of general immunity of the State (and consequently of the judge) for damage caused by judicial decisions. 3 Case Traghetti del Mediterraneo Spa v. Repubblica Italiana (C-173/03), 13 June 2006, and case European Commission v. Repubblica Italiana (C-379/10), 24 Nov. 2011. 4 Case Köbler v. Republik Österreich (C-224/01), 30 Sept. 2003. 5 Compensation, however, must be granted only whether a manifest infringement has occurred; therefore the following factors must be taken into account: (1) the degree of clarity and precision of the rule infringed; (2) whether the infringement was intentional; (3) whether the error of law was excusable or not; (4) the position taken, if applicable, by a Community institution; and (5) non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under the third paragraph of art. 234 tec (now art. 267(3) tfeu). Moreover, according to the European Court of Justice, an infringement of eu law is sufficiently serious when the decision concerned was made in manifest breach of its the case-law in the matter. 6 eu law also precludes national legislation which limits such liability solely to cases of intentional faults and serious misconducts on the part of the judge; see Traghetti del Mediterraneo Spa v. Repubblica Italiana (C-173/03). 7 Giacomo Di Federico, Responsabilitàcivile dei magistrati e diritto dell’Unione europea, in Alla Ricerca Del Buon Governo 301, 307 (2012). This is also a consequence of the supremacy of eu law over national law (Terhechte, supra note 1.).

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The European Court of Justice rulings were the occasion for a broad reform of State liability. In February 2015 the Parliament passed a new law (no. 18/2015) which amended the previous one. This reform is a strong reaction to the failure of the State liability over the last 23 years and it actually goes beyond the requests of the European Court. It is worth mentioning that the law of 1988 was requested by the Italian citizens through a referendum and that over 20 million citizens (over 80%) voted for the abolition of the then existing law and for the promulgation of a more effective one.8 Some important questions arise about the independence of the judiciary. Three points seem to be worth of our consideration. First. Did the European Court of Justice challenge the traditional judges’ pri­ vilege? Formally, no. The European Court did not challenge the traditional judge’s privilege as it considered only State liability and not the personal liability of the judge. The State must be held responsible for the infringement of eu law by the judge. That’s the main point. This may require reforms in the Member states, especially where State liability for judicial wrongs is limited to criminal breaches or private activity. Conversely, the Court didn’t say anything about individual liability. However, State liability is intertwined with the personal liability of the judge. Extending State liability might impact on the personal liability of the judge, above all if the State is given the faculty to take action against the judge. In Italy, for example, the new law (no. 18/2015) affects also the position of the single judge, even though this was not required by the European Court. In fact, it not only extended the cases of State liability, including the infringement of eu law, but it also provides that when a compensation is granted, the State must take action against the judge to recover a part of the sum. The maximum amount is, in fact, limited to half of the annual net salary of the judge (except in case of intentional wrongdoing). The law basically introduced a financial liability of the judge, since the recovery action of the State is mandatory. Judges will have, therefore, to insurance against the possible mistakes they can incur. The Italian reform moreover abolished the power of the courts to preliminary dismiss the action for the lack of the prescribed requirements (decision of inadmissibility). This power was intended as a filter to protect judges from unfounded actions but it was extensively and systematically used in the past to prevent the courts from deciding on the merits. As a consequence of these changes, the Italian judge is now (formally) more exposed to personal liability. In addition, being the Italian law on State liability 8 Giuseppe Di Federico, The Crisis of the Justice System and the Referendum on the Judiciary, in Italian Politics: A Review 25 (R. Leonardi & P.Corbetta eds., 1989).

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applicable both to judges and prosecutors (who in Italy belong to the same corps), as well as to judges of other jurisdictions and lay judges, the new principles will have broad application, affecting all judges (of all the courts, excluding the Constitutional Court) and public prosecutors. Second. The judicial infringement of eu law and of national law. The European Court clearly refers in its judgments to the infringement of eu law by the courts of last instance (thus after legal appeals have been exhausted) and it requires that compensation for damage be granted to individuals. Its aim is to protect the right to compensation of the individual and to foster the uniform application of eu law. The Italian law, on the contrary, refers to the infringement of the law in general and not only of eu law. According to the legislator, if the Italian law on State liability was considered inefficient in its purpose by the European Court, it is not reasonable to distinguish between the infringement of eu law and the infringement of national law, giving a different protection to the individual right to compensation for damage. Thus, according to the law no. 18/2015, the most important cases of State liability are: (1) the manifest infringement of the law and eu law; (2) the misrepresentation of facts or evidence; (3) when an interim measure is issued without legal grounds. The manifest violation of the law however (including eu law) depends on several conditions: the degree of clarity of the law, the seriousness of the violation and the lack of serious justification.9 In addition, to grant compensation, the damage must stem from an intentional wrongdoing or gross negligence of the judge. So, a new perspective has therefore developed, following the external pressure of the European Court. Traditionally, in the Italian legal system, the decision-making process and in particular the interpretation of the law and the assessment of facts and evidence, being the core activity of the judiciary, were considered an area in which neither personal, nor State liability were possible, in order to protect judicial independence and impartiality. The European Court, on the contrary, stated that (even if with regards to eu law only), even considering the specific nature of the judicial function and the requirements of legal certainty, the principle of judicial independence cannot justify general exclusion of any State liability for an infringement of eu law, on the ground that it comes from an activity of interpretation or from the assessment of facts and evidence. Such exclusion would deprive the eu principle 9 Other conditions apply only to eu law: a failure to comply with the obligation of preliminary reference (i.e. the obligation of a court to submit certain matters to the European Court of Justice), the existing contradiction of the judicial decision with a clear interpretation expressed by the European Court of Justice.

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of State liability of all practical effects and would weaken the protection of individual rights.10 Third. Is the new Italian law a real threat to judicial independence or is it a due remedy to effectively guarantee individual compensation for judicial mistakes? The National Association of judges and prosecutors, the Council of the Magistracy, the President of the Supreme Court, on the one side, strongly opposed the new law that, in their opinion, represents a threat to judicial independence and impartiality and is in contrast with the Constitution. The lack of the possibility to preliminary dismiss the action, the new cases of misinterpretation of facts and evidence, the financial liability of the judge will lead not only to the increasing of claims, but will also put some pressure on the judge undermining his freedom and impartiality in adjudication. On the other side, the Parliamentary discussion pointed out that the past law, had completely disregarded de facto the right of the citizen to be granted compensation in case of serious infringement of the law on the part of the judiciary. Thus, some changes were necessary. I do not think the new law will determine a “revolution” in the case-law concerning State liability. According to the President of the Supreme Court, the law is not so threatening to judges, because its concrete application will depend on the courts themselves. The new provisions, moreover, have been already referred to the Constitutional court, which will probably consider them as being in contrast with the principle of judicial independence. The Court did it already in the past (as to the abolition of the power to preliminary dismiss the case11) and I think it won’t be able to depart from its former stand. Finally, to open a dialogue with the judges, the Minister of Justice said that he will monitor the application of the law in the next six months, to evaluate its concrete impact on judicial independence. Apart from that, the new law is not so easy to apply, because it actually sets out several conditions to State liability, that will probably undermine its concrete implementation. The violation of the law, for example, can lead to State liability only after a comprehensive assessment of the degree of clarity and precision of the law that has been violated, the seriousness of the violation, the lack of justification on the part of the judge, the intentional behavior or the 10

11

Case Traghetti del Mediterraneo Spa v. Repubblica Italiana (C-173/03), 13 June 2006, pp. 35–41. According to Terhecht, supra note 1, at 314, the influence of European and international law in recent years has led to ever-increasing pressure against the insulation from liability that the judiciary has so far enjoyed. Its liability is therefore also an expression of a fundamental and world-wide change in judicial structures. Italian Constitutional Court, 9–22 Oct. 1990, no. 468.

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gross negligence of the judge. How many cases will meet all these conditions? As we know, the application of the law is a complicated activity per se and it often implies a considerable amount of discretion and creativity of the judge. This is due to a number of reasons: to the interaction of different legal systems (national and supranational), to the growing importance of the case-law of European and International courts, to the bad quality of the law (as far as Italy is concerned), to the fact that the traditional link between the judge and the national law has been challenged and in some occasions the judge is even required to apply a foreign law to adjudicate a case within the national jurisdiction (see for example the different regulations in the context of the European cooperation in civil and commercial matters12). It is very difficult to introduce strict limitations and controls on such a discretionary activity. I’m not saying, of course, that the State shouldn’t be liable, but only that State and judicial liability can be used in very peculiar circumstances, in exceptional cases, and they can’t be the key solution to rely on in order to improve the functioning of our judicial system.13 The Italian judiciary is asked today to depart from its traditional image of a self-referential, isolated and bureaucratic body with high independence and little accountability for its activities, including the application of the law. More attention is nowadays devoted (on the political, economic and social level) to the professional evaluation of judges and prosecutors, to the efficiency and accountability of the judicial system, which exhibit in Italy various shortcomings.14 The new law about State liability is a consequence of this general context and of the pressure of the European Court. I do not know if

12 13

14

See The European Judicial Atlas in Civil Matters, http://ec.europa.eu/justice_home/judi cialatlascivil/html/index_en.htm (last visited Feb. 8, 2016). Compensation to an individual can also be granted by other means that proved to be more effective: in case of delay in the handling of the file or in delivering justice (the Pinto law no. 89/2001); or in case of undue pre-trial detention or undue conviction as far as the criminal proceedings is concerned (articles 314 and 643, Italian Code of Criminal Procedure). “With the rising number of cases the question on how to ensure efficiency is at the forefront of the current debate. All western countries are confronted with the challenge of identifying new steering mechanisms without compromising independent adjudication. In several countries complaints about the functioning of the judiciary have prompted governments to revise legislation in an effort to provide more control and enhance efficiency, which on the other hand have led to complaints by the judiciary about the detrimental effect of such steps on their independence.” A. Seibert-Fohr (ed.), Judicial Independence in Transition 1303–1304 (2012).

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these new trends will be effective, but a new pressure is put on judges and prosecutors.15 To introduce substantive and effective professional evaluations of judges and prosecutors, to improve their working conditions and therefore the quality of the decisions, to make the disciplinary system more effective, to reduce the huge backlog, would probably be more effective remedies to the current bad performance of the Italian judicial system. 15

According to Judicial Independence In Transition, supra note 14, at 1330, “Alternative means of accountability have become more relevant in established democracy which go beyond the traditional canon of evaluation, recusal, discipline, complaints procedures. These measures are pro-active. Instead of sanctions and liability they focus on incentives for judges to fulfill their responsibility.”

chapter 23

The Expatriate Judges and Rule of Law in Hong Kong: Its Past, Present and Future Lin Feng i

Introduction

Unlike in many other jurisdictions in the world, expatriate judges have always played an important role in Hong Kong ever since it was occupied by the United Kingdom (uk) in 1843 as a colony. The very first issue this paper needs to address is the definition of “expatriate judges.” Should the term be defined according to nationality, ethnicity or any other criteria? The Local Judicial Officers’ Association in Hong Kong doesn’t define local officers by race. Instead, it defines local judicial officers by their ties with Hong Kong. A local officer means, under its constitution, any person holding judicial office on local terms, or those who have substantial Hong Kong connections.1 This definition embodies the principle of equality and will be adopted in this article. The roles of expatriate judges have changed over different historical periods in Hong Kong. This article will classify the roles of expatriate judges in Hong Kong into two categories, i.e., practical and symbolic roles. It will examine the roles and importance of expatriate judges from Hong Kong’s colonial period to its present status as a Special Administrative Region of the People’s Republic of China (China). By tracing and discussing the roles of expatriate judges in Hong Kong and their contribution to the rule of law in more than 170 years since Hong Kong became a colony, the paper will show that the importance of their practical roles versus symbolic roles has changed over the years from having more practical importance in the early days to having more symbolic importance nowadays. The paper argues that the symbolic roles of expatriate judges have been important after Hong Kong’s change of sovereignty and will remain important so long as Hong Kong’s host state, China, has not developed into a fully-fledged rule of law state. While the practical roles of expatriate judges are still important, they are, however, not irreplaceable. The day China becomes a rule of law state will be the day on which it will be no longer necessary to have expatriate judges in Hong Kong. 1 1 S.Y. Yue, Judiciary “faces state of crisis,” So. Ch. Morning Post (Jun 29, 1993), http://www.scmp .com/article/38517/judiciary-faces-state-crisis. © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_024

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Expatriate Judges in Hong Kong from British Occupation to Time before Japanese Occupation

A Courts and Expatriate Judges From the time it became a colony of the uk to the reversion of its sovereignty to China, Hong Kong’s judiciary was primarily composed of expatriates. This is largely due to the uk’s introduction of the common law system and its judicial system into Hong Kong soon after its occupation of Hong Kong in 1841.2 Mr. James William Norton-Kyshe, the author who documented the first 67 years of Hong Kong laws and courts, said the following in 1898 of the Hong Kong legal system:3 … it seems as if Hong Kong by its position had been destined to become the starting point from whence a civilizing power by its beneficent rule and humane laws was to endeavor to effect those reforms which an uncivilized power like China was ever in need of. In a promulgation entitled “To the Chinese Inhabitants of Hong Kong,” dated 1st February 1841, it was stipulated that:4 [The inhabitants of the island of Hong Kong] will be governed, pending Her Majesty’s further pleasure, according to the laws, customs, and usages of the Chinese (every description of torture expected) by the elders of villages, subject to the control of a British magistrate. As can be seen from the aforementioned quotation, while the Hong Kong ­ atives would continue to be governed by the village elders according to n ­Chinese laws, customs and usages, they were subjected to the control of a British magistrate. The next day, 2nd February 1841, another Proclamation was issued in which it was stated that all native Chinese would be governed according to the laws and customs of China whereas all British subjects would be governed “according to the principles and practice of British law”5 but under the Criminal and Admiralty Jurisdiction existing in Canton, China.6 It was on 30th April 1841, 2 3 4 5 6

2 Peter Wesley-Smith, The Sources of Hong Kong Law 87–89 (1994). 3 1 James William Norton-Kyshe, The History of the Laws and Courts of Hong Kong: From the Earliest Period to 1891 vii (1971). 4 Id. at 5–6. 5 Id. at 5. 6 Id. at 4.

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that Captain William Caine was appointed as the first Chief Magistrate of Hong Kong.7 By February 1942, the judicial establishment in Hong Kong had been expanded to consist of Major Caine as Chief Magistrate, Mr. S. Fearon, as Interpreter and Clerk of the Court, Coroner, and Notary Public, and Lieutenant Pedder as Marine Magistrate and Harbour Master.8 The Privy Council passed an Order on 4th January 1843 directing removal to Hong Kong of the Criminal and Admiralty Courts held at Canton.9 By a Royal Charter dated 5th April 1843, the Colony of Hong Kong was formally established.10 Sir Henry Pottinger was appointed the first Governor. The Royal Charter authorized and empowered the Governor “to constitute and appoint Judges . . . for the due and impartial administration of justice, and for putting the Laws into execution . . . .”11 In addition, the colonial legislature first provided for the wholesale reception of English law in Hong Kong in 1844 through the Supreme Court Ordinance (No. 15 of 1844).12 The original formula was reworded in s. 5 of the Supreme Court Ordinance 1873 as follows:13 Such of the laws of England as existed when the Colony obtained a local legislature, that is to say, on the 5th of April, 1843, shall be enforce in the Colony, except so far as the said laws are inapplicable to the local circumstances of the Colony or of its inhabitants, and except so far as they have been modified by laws passed by the said legislature. The formal establishment of Hong Kong as a colony of the uk, the removal of courts from Canton to Hong Kong, and the application of English laws to all British subjects had made it necessary for the colony to appoint judges familiar with English law. Since Hong Kong was a British colony, it was natural for the colonial Government to appoint British legal professionals to Hong Kong judiciary. They were mainly appointed either from Colonial Legal Service14 or directly from the uk. 7 8 9 10 11 12 13 14

7 8 9 10 11 12 13 14

Id. at 6. Id. at 12. Id. at 18. Id. at 20–23. The Charter was published only on 26th June 1843. Id. at 22. Peter Wesley-Smith, The Sources of Hong Kong Law 89 (1994). Id. at 90. The Colonial Legal Service was a freely interchangeable Service of which the functions fall into three divisions: judicial division, legal work of the Government, and a number of posts not very uniformly dispersed throughout the Colonial Empire, the holders of which deal with special aspects of legal work (such as Court Registrars etc.). See Charles Jeffries, The Colonial Empire and Its Civil Service 143–44 (1938).

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The first Chief Justice of Hong Kong’s Supreme Court – John Walter Hulme – and the first Registrar of the Supreme Court – Robert Dundas Cay – were sent from London.15 On 7th May 1844, the first Chief Justice, the Honourable John Walter Hulme arrived in Hong Kong.16 He was appointed a member of the Legislative Council in June 1844.17 In the early years, the Judiciary in Hong Kong was not independent from either the Executive or the Legislature. Major Caine, the Chief Magistrate, had been appointed as a member of both the Executive and Legislative Councils.18 The Chief Magistrate was also the Superintendent of Police.19 The appointment of the Chief Justice to the Legislative Council was another evidence in support. When the Criminal Court first opened on the 4th March 1844, the Governor Sir Henry Pottinger, and the Lieutenant-Governor Major-General D’Aguilar, both sat as Judges of the Court.20 The Court presided over by the Governor was said to be a “complete failure” because neither the Governor nor the Lieutenant-Governor was properly trained in law. The Governor admitted himself that it would be better to have “more qualified hands.”21 That is possibly why it had been observed that “rather than submit to a decision which was only legal by chance, the majority of the inhabitants had preferred foregoing their claims than incurring ‘the certain expense and uncertain justice of the decision of a Judge who was totally ­unacquainted with law.’”22 People had a general wish that the Supreme Court be opened as soon as possible.23 It was against this background that the Supreme Court was established. The Ordinance No. 15 of 1844 was passed on the 21st August 1844, to establish a Supreme Court of Judicature in Hong Kong.24 The Chief Justice, according to that 15 16 17 18 19 20 21 22 23 24

15

16 17 18 19 20 21 22 23 24

Not surprisingly, even the first Attorney-General of Hong Kong – Paul Ivy Sterling – was also sent from Britain. 1 James William Norton-Kyshe, The History of the Laws and Courts of Hong Kong: From the Earliest Period to 1891 47, 56 (1971). Id. at 47. Id. at 49 Id. at 33. Id. at 103–04. Id. at 37. Id. at 39. Id. at 39. Id. at 40. It was a detailed legislation but was replaced one year later by Ordinance No. 6 of 1845 which was again repealed in part by Ordinance No. 2 of 1846. See Norton-Kyshe, supra note 3, at 60–61.

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Ordinance, was “appointed by Letters Patent under the Public Seal of the Colony from time to time by the Governor of Hong Kong, in accordance with such instructions as he may receive from Her Majesty, Her Heirs and ­Successors.”25 The Supreme Court was formally opened on 1st October 1945.26 Chief Justice Hulme was the only judge of the Supreme Court.27 The second Governor Davis intended to influence the result of various cases. The acting Chief Magistrate Mr. Hillier followed his order.28 In addition to overruling many decisions of Mr. Hillier on appeal,29 Chief Justice Hulme refused to allow himself to be improperly dictated to in the Compton Case. That became intolerable to the Governor30 who started a series of persecutions against Chief Justice Hulme.31 The Governor suspended Chief Justice Hulme in November 1847.32 It was observed that people “fervently hoped that at no distant period he [the Chief Justice] would return to the Bench, the integrity and independence of which he had so nobly sustained, and for doing which he had now paid such a heavy penalty.”33 Soon thereafter Governor Davis was forced to resign and Chief Justice Hulme was reinstated in June 1848 with full powers.34 This episode shows that in the early years the Judiciary in Hong Kong was neither independent nor impartial as the Governor had a great influence over the Judiciary. Both the Chief Justice and Chief Magistrate were members of the Legislative Council. Fortunately, the first Chief Justice Hulme maintained his integrity and independence. His reinstatement after being suspended by Governor Davis indicated that the British Government at that time had the intention to have a relatively independent Supreme Court in Hong Kong. In the early days, the fitness of English law for Hong Kong had been questioned because it was mainly a Chinese society.35 But Mr. Norton-Kyshe opined in 1898 that:36 25 26 27 28 29 30 31 32 33 34 35 36

25 26 27 28 29 30 31 32 33 34 35 36

Section 4, Ordinance No. 15 of 1844 (On file with the author). See Norton-Kyshe, supra note 3, at 64. Id. at 81. Id. at 128. Id. Id. at 137. It was the Compton Case. Id. at 140. Id. at 159–60. Id. at 167. Id. at 199. Id. at viii. Id. at ix.

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… it may be safely asserted that not merely free trade but the equal justice of our laws, dealing alike with native and with European, have drawn to the Colony a population upon whom our commerce is entirely and absolutely dependent for support, and it may be reasonably inferred therefore that had any departure from this course been attempted, although evidence is not wanting as to what was originally intended in that respect, it would probably have deterred emigration if not driven away many already settled in the island. English law … was the only law expedient to put into practice in a Crown Colony settled essentially under British rule, like Hong Kong, and therefore differing from a conquered place with its already established laws and customs. In the words of London Law Times, Mr. Norton-Kyshe has shown through his book the success that:37 English law and English justice can be planted in an empire so full of contradiction as China, and we can learn from the pages how the court has helped to turn what was a state of lawlessness by sea and land, danger from riot by natives, and open and flagrant corruption in judicial circles, into the acquiescence with which the Chinese now accept our law and its firm and impartial rule…. While it is understandable that expatriate judges were appointed in the early days of Hong Kong as a colony, the same practice continued until Japanese ­occupation during the Second World War. B The Roles of Judges It is indisputable that expatriate judges were the backbone who helped, from scratch, establish and develop the common law legal and judicial system in Hong Kong. One has no difficulty imagining how tortuous it was to bring the common law system, which was something considered as a “foreign product,” into a Chinese territory with most of the people also being ethnic Chinese. But with the great effort of the expatriate judges in those years, the common law system had been transplanted into Hong Kong. Second, expatriate judges were indispensable during the early years of the colony for the enforcement of law as Chinese natives were not familiar with English law and its legal system. Consequently, it would be extremely difficult if not impossible for them to 37

37

Id. at e.

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enforce the law. Though there was improper interference by the executive with judicial process, British Government at that time decided to support Chief Justice Hulme which contributed to winning the confidence of local community in Hong Kong. That was essential to the success of legal transplant. Third, the existence of expatriate judges gave traders from other jurisdictions confidence to stay if they were already in Hong Kong and also attracted those who had not come yet. The first two are more about the practical roles of expatriate judges which were clearly of essential importance in the earlier years. The energy of both the British and colonial Governments was also spent primarily on the first two practical roles. As far as the third role is concerned, while realizing symbolic role might be of equal importance because Hong Kong’s success depended on trade and commerce, it should be noted that the argument of the symbolic value was more or less based on assertion. iii

Expatriate Judges and Localization of the Judiciary from the Resumption of British Administration in 1945 to the Change of Sovereignty in 1997

A Localization The policy of localization was declared by the colonial government when the British returned to Hong Kong in 1945 after the Second World War38 following several years of occupation by the Japanese. The policy purported to redress the faults of past colonial practice whereby the upper echelons of the civil service and judicial positions were all held by expatriates.39 The policy was not taken seriously, however, until John Oliver was appointed Registrar of the Supreme Court in 1976 under Chief Justice Briggs (1973– 1978).40 It had been commented that “John Oliver was the only Registrar who had honestly and conscientiously implemented the government’s policy of localization.”41 38 39 40 41

38 39

40 41

Japan declared its unconditional surrender on August 15, 1945 and Britain restored its control over Hong Kong. This comment was made by the first ever Chinese woman magistrate, Ms. Chui. Marjorie Chui, “Justice Without Fear or Favour: Reflections of a Chinese Magistrate in Colonial Hong Kong,” p. 6. See South China Morning Post, July 11, 1976, p. 10. Marjorie Chui, Justice Without Fear or Favour: Reflections of a Chinese Magistrate in Colonial Hong Kong, p. 6.

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Ng Choy, also called Wu Tinfang, was the first Chinese appointed as Acting Police Magistrate in 1880.42 In 1966, Simon Li became the first Chinese who was appointed a district judge. He was also the first Chinese judge appointed to the High Court in 1971.43 Despite these appointments, the majority of judges in Hong Kong were still expatriates. Mr. Justice Simon Li, the only Chinese Puisne Judge at that time, criticized the colonial Government for discriminating against local civil servants. His view was echoed by the Bar Association.44 In 1976 Ms. Marjorie Chui was the first Chinese woman on the bench in Hong Kong45 and the only and first Chinese woman to sit as a judge in a male-­dominated and expatriate-oriented Judiciary.46 In the same year, there were 75 judges and magistrates, of which only 16 were Chinese. Of these 16 Chinese judges and magistrates, 13 were appointed during John Oliver’s term as Registrar.47 In 1979, there were only two local District Court judges.48 So the appointment of local Chinese to the Judiciary was primarily at the level of magistracy. Ms. Chui opined that while promotions in 1970s were fair,49 it was an end of an era and the Judiciary was never the same after the departure of Chief Briggs in 1979.50 While the lack of local judges had been a known problem in Hong Kong, there was no great urgency to change this situation prior to the mid-1980s. With the signing of the Joint Declaration between the uk and China in 1984,51 localization of the judiciary became an item on the agenda, and this led Hong Kong to seriously face the problem of lack of local judges. But this definitely was not an easy task. It was reported that “both the Chief Justice and the administration were aware of the need for Cantonese-speaking people on the 42 43 44 45 46 47 48 49 50 51

42 43 44 45 46 47 48 49 50 51

See Linda Pomerantz-Zhang, Wu Tingfang (1842–1922): Reform and Modernization in Modern Chinese History, (1993). “Simon Li, the first Chinese to act as chief justice dies aged 91 surrounded by family in hospital, So. China Morning Post (Feb 28, 2013). See South China Morning Post, Oct 24, 1973, p. 1: ‘Scandalous’ judicial system in hk condemned. Marjorie Chui, Justice Without Fear or Favour: Reflections of a Chinese Magistrate in Colonial Hong Kong, p. 2. Id. at 41. Id. at 6. Id. at 41. Id. at 10. Id. at 12. The nature of the Sino-British Joint Declaration is a bilateral treaty between the uk and the prc on the future of Hong Kong.

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Bench.”52 The Government started in 1981 to encourage those not meeting the requirements to apply and two Cantonese-speaking candidates were appointed as magistrates between 1981 and 1984.53 The requirements for judicial appointments were further relaxed in 1984 to five years’ experience and 30 years of age.54 Thereafter, six more appointments were made in 1985.55 Mr. Justice Simon Li was appointed the first Chinese appeal judge (as vp) in 1984. He was also the first Chinese acting Chief Justice in the 1980s.56 It was reported that around the end of 1984 only one out of a total of 48 magistrates had been hired on local terms though four others were ­Cantonese-speaking.57 That is surprising! In the four years up to 1986, six Cantonese-speaking district judges were appointed. Five of them were promoted from within the judiciary. In addition, a Cantonese speaking district court judge was appointed to sit in the High Court. In an article written in 1985, Albert Chen stated that: “A rough survey indicates that more than 80% of the judges, magistrates and other judicial officers in Hong Kong are expatriates.”58 On 1st April 1986, there were 35 judicial officers on local terms of employment in an establishment of 145.59 What should be noted is that these 35 judicial officers were not necessarily all Cantonese speaking as they might be expatriates but employed on local terms. In 1987 all the ten principal magistrates were expatriates until Ms. Chui was appointed after one of the ten left.60 At that time, “the Magistracy was still dominated by expatriates, all of them, young or old, were appointed in the 1980s.”61 In early 1987, four local Chinese were appointed as magistrates and it was ­noted that “more Cantonese-speaking magistrates with proper legal qualifications are clearly needed.”62 It was argued that there were too many expatriates in the Judiciary though “a fair 52 53 54 55 56 57 58 59 60 61 62

52 53 54 55 56 57 58 59 60

61 62

Daniel Chung, Matthew Leung & Wong Wing-hang, Bid for more locals in the judiciary: Legco meets, So. China. Morning Post (April 10, 1986). Id. Id. Id. Simon Li, the first Chinese to act as chief justice dies aged 91 surrounded by family in hospital, So. China Morning Post (Feb 28, 2013). Problems recruiting for the judiciary, So. China Morning Post (Jun 3, 1987) at 30. Albert H.Y. Chen, 1997: The Language of the Law in Hong Kong 15 h.k.l.j. 19, 25(1985). Id. Marjorie Chui, Justice Without Fear or Favour: Reflections of a Chinese Magistrate in Colonial Hong Kong,p. 2 of the forward by the author, p. 74. She held the position of Principle Magistrate (only Chinese) until her retirement in 1993. Id. at 76–77. Problems recruiting for the judiciary, So. China Morning Post (Jun 3, 1987) at 30.

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assessment would have to give relatively high marks to the past independence and competency of the courts here.”63 By September 1987, only around 10 out of 60 magistrates were local.64 There were only two local High Court judges, making localization at the top end of the Judiciary a remote prospect.65 That was a drop of Chinese judges both in percentage and in absolute number in comparison with 1976. A landmark in localization of the Judiciary occurred in 1988 when Sir TiLiang Yang was appointed as the Chief Justice. At the time he was appointed, only 30 percent of judicial officers were locally employed, with the remainder on expatriate terms. Sir Ti Liang Yang said that localization of the Judiciary was one of his main objectives.66 Being the first ethnic Chinese Chief Justice of a judiciary which was dominated by expatriate judges,67 Sir Ti-Liang Yang had attracted resentment from some expatriate judges who criticized that his appointment was simply because of the government’s localization policy to prepare for the transfer of sovereignty in 1997.68 Despite his appointment, judicial positions in upper echelon of the Judiciary were mainly occupied by expatriates. In 1991, apart from CJ, all the other nine justices in the Court of Appeal were expatriate. There were three locally employed High Court judges on the 20-post High Court bench. Only 10 out of 32 District Court judges were locally employed.69 There were 77 posts at magistrate level. Also in 1991 the Judiciary appointed two expatriate judges without explaining the reasons.70 It means despite efforts to localize the Judiciary, the appointment of expatriate judges did not stop. Governor Sir David Wilson realized the necessity to appoint more Cantonese-speaking judges to the Judiciary and noted that “We must make sure that we have enough local people sitting on the bench. We have lots of 63 64 65 66 67 68 69 70

63 64 65 66 67

68

69 70

Id. Simon Macklin, A third of hk’s magistrates missing, but boycott denied, So. China Morning Post (Sept 25, 1987), at 1. Lindy Course, Judge in book row expected to resign, So. China Morning Post (Nov 25, 1988), at 1. Simon Macklin, Lawyers wary of judiciary, So. China Morning Post (May 23, 1988) at 3. In an article written in 1985, Albert Chen stated that: “A rough survey indicates that more than 80% of the judges, magistrates and other judicial officers in Hong Kong are expatriates.” Albert H.Y. Chen, 1997: The Language of the Law in Hong Kong, 15 h.k.l.j. 19, 25 (1985). Emily Lau, The government reneges on High Court appointment 148 Far E. Econ. Rev. 18 (1990). Sir Ti-Liang Yang served as the Chief Justice of Hong Kong for eight years until he resigned in 1996 to contest the First Chief Executive Election of the hksar. Jennifer Cooke, Cash allowance lure for local judges, So. China Morning Post (Jun 26, 1991) at 1. The three High Court judges were Justices, Wong, Liu and Bokhary. Lindy Course, Cost-cutting to hit magistrates, So.China Morning Post (Oct 14, 1991) at 1.

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barristers but there are not yet enough local Chinese sitting as judges. This is something we must do a lot of work on . . . .”71 The Local Judicial Officers’ Association warned in 1993 that “the Judiciary will be in a state of crisis if the pace of localization does not speed up.”72 This view was prompted by the appointment of 2 expatriates to the High Court and the elevation of another expatriate to the Appeal Court. The Association said that it was surprised that the Judiciary appointed someone from overseas – London Silk Michael Stuart-Moore – to the High Court. “With this pace of localization, we can’t reach the target of 50 percent by 1997.”73 The Association was also unhappy that only one out of 12 District judges who were appointed during 1991 was local.74 Mr. Simon Li, a retired Hong Kong Court of Appeal judge was very pessimistic and estimated in 1988 that “it would take at least twenty years to produce a judiciary of good quality in Hong Kong among Chinese lawyers.”75 The same concern was also shared by the then Chief Justice, Sir Ti-liang Yang who said on 6 November 1988 that the Judiciary might have to continue relying on expatriate judges for some time and a time table for the localization of the Judiciary would not be realistic.76 B The Reasons for Lack of Locals in the Judiciary It is clear from above discussion that the colonial Government in Hong Kong had a localization policy for the Judiciary as early as 1950s and the policy became more specific after the signing of the Sino-British Joint Declaration in 1984.77 But the progress of localization of the Judiciary had not been satisfactory. It is necessary to explore the reasons. 1 Lack of Suitable Local Candidates One argument is that it was due to the lack of suitable local candidates. There is some merit in this argument because of late start of local training of legal 71 72 73 74 75 76 77

71 72 73 74 75 76 77

Crisis in the Courts, So.China Morning Post (May 19, 1991) at 43. S.Y. Yue et al., Judiciary “faces state of crisis,” So. China Morning Post (Jun 29, 1993). Id. Id. Berry Fong-Chung Hsu, The Common Law System in Chinese Context: Hong Kong in Transition 121 (1992). Simon Macklin, Snaps hit Judiciary hopes for extra staff, So. China Morning Post (Nov. 7, 1988), at 3. Fong-Chung Hsu, supra note 75. Gao Siya (高 思 雅 ), Localization of Civil Servants in Hong Kong (香 港 公 务 员 的 本 地 化 ), in Administration (《 行 政 》 ), vol. 2, issue 6, 1989, No. 4, pp. 801–803.

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­professionals. Hong Kong did not start to offer its own legal education until 1969 when the Faculty of Law of the University of Hong Kong (hku Law Faculty) was established. Due to this reason, prior to the mid-1970s, all legal professionals (including judges, barristers and solicitors) in Hong Kong were trained in foreign countries. Also, given the fact that not many local people could afford the huge cost of overseas studies, the legal profession during those days was dominated by expatriates. Given that locally trained lawyers won’t be eligible to be appointed as judges until having been in practice for 10 years or more,78 the earliest time for locally trained lawyers to be eligible for judicial appointments will be 1983. Merry opined that the late development of legal education in Hong Kong resulted in shortage of people who are both bilingual and rich in legal experience to take of the judicial position.79 That view is, however, not shared by all. In her book, Ms. Chui opined that:80 in fact, many local lawyers who were interested in a career on the bench and who were regarded as eminently suitable by their peers were rejected by the Judiciary. These rejected lawyers could only feel insulted when the CJ stated in one speech after another that he did not want to localize the Judiciary at the expense of appointing third rate judges or magistrates and filing the bench with men of inadequate qualities of mind and character. Chui further observed that:81 Expatriates who were hired at the bottom rungs of the judicial ladder soon leapfrogged their local colleagues and rapidly assumed senior positions. Expatriates were promoted by the batch. At one point five e­ xpatriates were promoted to fill all five senior judicial vacancies. . . . Similarly, 78 79 80 81

78 79

80 81

The requirements for judicial appointment before 1981 were: 10 years’ professional experience and at least 40 years old. Malcolm Merry, Not Entirely Legal – Part 55, LexisNexis H.K. Blog (Oct. 11, 2012), http:// lexisnexishk.com/2012/10/11/not-entirely-legal-part-55-no-shortage-of-judges-generous -retirement-terms-judiciary/. The same comment was shared by commentator Frank Ching. See Frank Ching, Recruiting overseas judges the right thing to do for now, So. China Morning Post (May 8, 2013), http://www.So.ChinaMorningPost.com/comment/ insight-opinion/article/1232435/recruiting-overseas-judges-right-thing-do-now. Marjorie Chui, Justice Without Fear or Favour: Reflections of a Chinese Magistrate in Colonial Hong Kong 20. Id. at 21.

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when nine expatriates were promoted to fill another nine senior judicial vacancies … It doesn’t mean, however, that there were no locals who were eligible for judicial appointments. It is because there were locals who went to England to read law and came back to Hong Kong to practice as barristers. In fact the very first Chinese barrister was Ng Choy mentioned above in this paper.82 As discussed above, the total number of judges in both the Court of Appeal and High Court in the 1990s before the change of sovereignty was only 30, which is very small. There were already 3 Chinese justices and eight Chinese judges sitting on the Court of Appeal and High Court benches respectively in 1995.83 To reach the target of having 50% of them be Chinese, only 5 suitable candidates were needed in 1996. There were 47 qcs with the local Bar in 1996.84 All of them were qualified for appointment to the High Court. It is not really convincing to say that it was so difficult to find 5 replacements because there was still a short of suitable local candidates for appointment to the Judiciary. 2 Lack of Enthusiasm to Localize Lack of motivation and concrete plan to cultivate local talents is a major reason. The chairman of Bar Association observed in 1991 that “there had been very little concerted attempts by the bench to recruit local lawyers.”85 Though there was governmental policy on localization, its implementation depended, however, very much on the Judiciary. Chief Justice Briggs and the Registrar Mr. Oliver implemented the policy well in 1970s. Since Sir Denys Roberts succeeded Briggs as Chief Justice in 1979, the management in the Judiciary changed and by the end of the 1980s, it had been totally transformed.86 Specifically speaking, it had been observed that there was no longer transparency in the Judiciary because Chief Justice Roberts decided to remove all information on the appointment, promotion and transfer of judges and magistrates from the scrutiny of members of the public as well as judicial officers. That happened in the years immediately following the Sino-British Joint Declaration of 1984.87 82 83 84 85 86 87

82 83 84 85 86 87

He became barrister in 1876. See Hong Kong Judiciary 1994–1995. See the Bar List in 1996. Making justice seem a good career move, So. China Morning Post (Oct. 8, 1991). Marjorie Chui, Justice Without Fear or Favour: Reflections of a Chinese Magistrate in Colonial Hong Kong 17. Id. at 18.

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Even worse, in mid-1980s, there was an increase in the recruitment and promotion of expatriates. It was noted that a large number of senior judicial posts were created and filled mainly by expatriates and many of them had served in the Chief Justice’s former department, i.e., the Attorney General’s Chambers. As a result, 90% of the higher judicial postings were held by the expatriates. Many locals felt that “the expatriates were looking after their own and making the most out of the colony before the hand-over to China.”88 That is why Ms. Chui said the following about the localization in the 1980s:89 . . . localization in the Judiciary took a backward step. Throughout the 1980s and up to a few years before Hong Kong was handed back to China, expatriates were recruited in preference to locals, even at the magistracy level, despite the fact that expatriates did not speak the local language and were inexperienced in local laws and customs. The Judiciary was still dominated by expatriates. As noted above, the colonial government’s slowness in localizing the Judiciary was strongly criticized by the Local Judicial Officers’ Association in 1993.90 3 Preferential/Discriminatory Treatment There exists consensus among local professionals that there existed discriminatory treatment towards locals. In fact, discriminatory treatment for locals was a primary reason for Mr. Patrick Yu, qc, sc to refuse to join the High Court three times in the 1970s.91 He argued that “right to the very end of British colonial rule in the territory, discriminatory terms of employment persisted to varying extents in one form or another even in the judiciary where all its members, whether expatriate or non-expatriate, were ironically expected to rule fairly and justly on human rights.”92 Mr. Daniel Fung, another qc, stated that more Chinese judges should and could be recruited but for the policy favouring expatriates with higher pay and privileges.93 Not only barristers, but also those working within the Judiciary also held the same view. Ms. Chui opined that “… for nearly the entirety of Hong Kong’s colonial history, all the top posts as well as an overwhelming majority of senior 88 89 90 91 92 93

88 89 90 91 92 93

Id. Id. at 19. S.Y. Yue et al., Judiciary “faces state of crisis,” So. China Morning Post (Jun. 29, 1993). See Patrick Yu Shuk-siu, Tales from No. 9 Ice House Street 22 (2002). Id. Crisis in the Courts, So. China Morning Post (May 19, 1991) at 43.

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posts in … the Judiciary were held by expatriates, notwithstanding the availability of equally qualified local candidates, and despite the Government’s declared policy of localization.”94 In addition to discrimination, she also implied that the colonial Government only paid lip service to localization. A somewhat different view was expressed by Governor Sir David Wilson when he said to bring more local Chinese to the bench would “involve some people giving up very handsome salaries as qcs or barristers.”95 While it is true that a judge would make less money than a qc in general, it is not really the actual amount of money but the discriminatory treatment which put some locals off. 4 Political and Legal Uncertainty Political uncertainty caused by the forthcoming change of sovereignty and also uncertainty about judicial independence were also factors affecting negatively locals from joining the bench. The Bar Association Chairman, Robert Tang, qc at that time said that local barristers were unwilling to join the judiciary “because of a lack of confidence in Hong Kong’s political future.”96 The Bar Association Chairman, Mr. Rogers, qc said in 1991 that “people are concerned about the future of the legal system itself, and about how far the common law system will be maintained.”97 Gladys Li, QC, SC shared a similar concern by saying that the independence of Judiciary is well above any financial worries for local Chinese barristers to choose to join the bench.98 Gladys Li also warned that “one cannot take for granted that the idea of judicial independence is thoroughly entrenched in the mind of the present administration, never mind the future one.”99 In August 1996, “Judicial independence emerged as a subject of much public concern” because a District Court judge alleged that he had been subjected to pressure by fellow judges and that became headline news.100 Ms. Chui also noted that she had been subtly pressurized by her peers.101 94 95 96 97 98 99 100 101

94

Marjorie Chui, Justice Without Fear or Favour: Reflections of a Chinese Magistrate in Colonial Hong Kong 2 (forward by the author). 95 Crisis in the Courts, So. China Morning Post (May 19, 1991), at 43. 96 See Simon Macklin, Lawyers wary of judiciary, So. China Morning Post (May 23, 1988). 97 Supra note 95. 98 Id. 99 Crisis in the Courts, So. China Morning Post (May 19, 1991), at 43. 100 Marjorie Chui, Justice Without Fear or Favour: Reflections of a Chinese Magistrate in Colonial Hong Kong 47. 101 Id. at 49.

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5 Arguments against Localization Apart from those reasons which made local talents reluctant to join the benches, some arguments against localization had also been raised. The first argument is that localization may discriminate against the expatriates and other minorities in Hong Kong:102 No just expatriate lawyers are at risk, although many of them made their homes in Hong Kong, but also members of the local Indian community and other minorities who have made their mark throughout the legal profession and are well represented in the judiciary. A particular nationality is not given as a factor to be taken into account in either the JD or the Basic Law, judicial and professional qualities are what are laid down there, not ethnicity. This argument is valid if those ethnic foreigners who have established substantial connection with Hong Kong are treated as expatriates. But according to the definition of expatriates adopted in this paper, those who are either employed on local terms or substantially connected with Hong Kong will not be defined as expatriates. The second argument is that localization may ruin people’s confidence in the local legal system. Chief Justice Roberts once stated publicly that “maintaining a substantial expatriate element in the Judiciary was essential for the preservation of confidence in Hong Kong’s system of justice after the reversion of sovereignty to China.”103 The third is the competency of local judiciary. But the critics both within and outside the legal circle saw this problem “as the legacy of former Chief Justice Sir Denys Roberts’ nine-year reign. Roberts, who is alleged to have promoted people of low quality to the bench, retired in March 1988 …”104 While acknowledging that the first two arguments, especially the second one, have some merits, the third is not a reason against localization. It was not a problem caused by locals. Instead, it was caused by the expatriates at the top level.

102 103 104

102 Crisis in the Courts, So. China Morning Post (May 19, 1991) at 43. 103 Marjorie Chui, Justice Without Fear or Favour: Reflections of a Chinese Magistrate in Colonial Hong Kong 22. 104 Emily Lau, Scandals dog the colony’s judiciary: The wobbly bench, 144 Far E. Econ. Rev. 16, 23 (1989).

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C Roles of Expatriate Judges During the period discussed above, the judicial system in Hong Kong continued to develop. For example, the District Court was first established in 1953, the first batch of three judges were all expatriates.105 The Court of Appeal and the High Court were established in 1976 under the Supreme Court Ordinance 1975 with only one ethnic Chinese Puisne judge.106 So the role for expatriate judges to establish the legal system in Hong Kong was still there, although it was less demanding than in the earlier years. Their primary function was to enforce the law. While the quality of expatriate judges was generally good and overall they did a good job, there were some scandals, particularly in 1980s. For example, Mr. Justice O’Dea admitted reading a book during a trial and had to resign because of that.107 Mr. Justice Barker resigned in March 1988, six months after a controversial decision to acquit Carrian boss and five other defendants.108 Concerns over the scale of injustice in Hong Kong were expressed by media and shared by many.109 As a result, some of Hong Kong’s better legal brains were disillusioned to the point where they did not feel the bench was an appropriate place for them to continue their careers. In 1996, there were press reports about the senior District Court judge in charge of the District Court who tried to bully counsel appearing before him. “Subsequently that judge had to step down from his post of senior District Court judge in charge.”110 A more serious claim was about mismanagement of the Judiciary. Ms. Chui opined that “Mismanagement of the Judiciary was well-known throughout the Judiciary in the 1980s” though the issues were only publicly acknowledged in the 1990s as the Registrar interfered not only in civil but also criminal cases.111 105 106 107 108 109 110 111

105 Hong Kong District Court: Appointment of Three Judges, So. China Morning Post (Jan. 21, 1953). They were all appointments within the colony: Mr. Justice A.D. Scholes (acting Puisne Judge), Mr. James Reynolds (acting Solicitor General), and Mr. James Wicks (President of the Tenancy Tribunal). 106 See New Court System Today, So. China Morning Post (Feb. 26, 1976) at 7. The Court of Appeal consisted of the CJ, Justices Huggins and Pickering. The High Court consisted of the CJ and the remaining Puisne Judges of the then Supreme Court. 107 Lindy Course, Judge in book row expected to resign, So. China Morning Post (Nov 25, 1988) at 1. 108 His decision was later found by the Appeal Court to be wrong in law on several key points. See Lulu Yu, Carrian trial judge takes Botswana job, So. China Morning Post (Dec. 11, 1988) at 1. 109 Marjorie Chui, Justice Without Fear or Favour: Reflections of a Chinese Magistrate in Colonial Hong Kong 156–61, 110 Id. at 92. 111 Id. at 81.

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Finally, due to pressure from some elected members of the Legislative Council, “the Registrar of the Supreme Court was stripped of all his administrative powers” in December 1995,112 which was less than two years before the handover. By then, with the increase of experienced local talents, it was fair to say locals had built the capacity to perform the role of enforcement of law at all levels of courts. There was, however, lack of locals on the benches due partly to the colonial government’s discriminatory policy and partly to some locals’ lack of enthusiasm to join the benches for various reasons. By 1980s, particularly after the 4th June event,113 the confidence in the future of the colony became a serious issue not only for foreign investors but also for ordinary local residents.114 Chief Justice Roberts’ statement that “maintaining a substantial expatriate element in the Judiciary was essential for the preservation of confidence in Hong Kong’s system of justice after the reversion of sovereignty to China” made Ms. Chui feel insulted as a Chinese magistrate with self-respect.115 There was, however, some truth in that statement. Before the change of sovereignty in 1997, maintaining people’s confidence in the future of Hong Kong was a key concern of both British and Chinese Governments. During the period covered by this part of the paper, expatriate judges still played important roles in the continuing establishment of the legal system and law enforcement in Hong Kong. With the time passing by and by the 1990s, local talents had gained experience and became mature and demanded proper implementation of localization policy. But the pace of localization was still very slow and some local talents remained reluctant to join the benches for various reasons. So the importance of practical roles performed by expatriate judges was almost self-evident. Meanwhile, with the approaching of the change of sovereignty, due to people’s lack of confidence in mainland China particularly after 4th June event, the symbolic role of expatriate judges became more obvious. iv

Expatriate Judges after the Change of Sovereignty

The problem of shortage of local judges remained a great concern of the legal profession in Hong Kong after the handover. As Merry pointed out,

112 113 114 115

112 Id. at 27. 113 This event refers to the crackdown by the Chinese Government of a student movement fighting against corruption and for democracy on 4th June 1989. 114 Many local residents emigrated overseas due to their fear of uncertainty of the colony’s future. 115 Marjorie Chui, Justice Without Fear or Favour: Reflections of a Chinese Magistrate in Colonial Hong Kong 22.

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“the judiciary remained disproportionately expatriate at the turn of the century.”116 This is particularly true for the higher level courts. To solve this problem in the new High Court (including both the Court of Appeal and Court of First Instance (CFI)), some expatriate district judges were borrowed to sit on the High Court bench. Besides, some retired expatriate judges were also invited back to help.117 Retired High Court judge William Waung was also aware of this phenomenon, and he commented that:118 The inability to recruit the right lawyers to the senior judiciary has resulted in a perpetual lack of judges in the Court of First Instance. We have seen [e]specially from the last 10 years, an extraordinary large number of temporary judges sitting more or less on a permanent basis. In recent years, there sees a gradual improvement of the situation. In August 2012, the Government announced 23 new judges in the district court and magistracy. Nearly all the new names were Chinese speakers. That was why Merry opined that “this feels like a watershed: the full localization of the Hong Kong judiciary. At Last.”119 In addition, there was also a news report saying that the Judiciary had been trying to avoid recruiting expatriate judges.120 By 31st October 2015, in the Court of Appeal, in addition to the Chief Judge, 8 out of 12 Justices are Chinese; in the CFI (the original High Court), 21 out of 25 judges are Chinese; in the District Court, 31 out 37 judges are Chinese, in the Magistrates, 80 out of 82 magistrates are Chinese.121 So the CFI, District Court and Magistrates are almost completely localized. Even for both the Court of Appeal and the CFI together, you only need 8 extra candidates at most to reach 116 117 118 119 120 121

116 Malcolm Merry, Not Entirely Legal – Part 55, LexisNexis H.K. Blog (Oct. 11, 2012), http:// lexisnexishk.com/2012/10/11/not-entirely-legal-part-55-no-shortage-of-judges-generous -retirement-terms-judiciary/. 117 Id. 118 William Waung, Judicial Independence in Hong Kong, Standnews (Aug. 5, 2015), https:// thestandnews.com/politics/judicial-independence-in-hong-kong/. 119 See Malcolm Merry, supra note 116. 120 Heavy workload and strict requirement, Hong Kong has difficulty recruiting judges, So. China Morning Post (Dec. 31 2012), http://www.google.com.hk/url?sa=t&rct=j&q=&esrc=s&s ource=web&cd=2&ved=0CCAQFjABahUKEwi3gYnWvqDHAhVEEpQKHc8fBpg&url=htt p%3A%2F%2Fwww.nanzao.com%2Ftc%2Fhk-macau-tw%2F14c314778c6d736%2Fgong -zuo-fan-mang-tiao-jian-yan-ge-xiang-gang-nan-zhao-mu-fa-guan&ei=6KHJVbftD8Sk0 ATPv5jACQ&usg=AFQjCNF-ShmkKC7PQYxtlBumnNLLZWJ_Hg&bvm=bv.99804247,d. dGo. 121 See http://www.judiciary.gov.hk/en/organization/judges.htm, (last visited Oct. 30, 2015).

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100 percent localization.122 There are 97 Senior Counsel in the local Bar which are equivalent to the qcs before the change of sovereignty.123 Nobody will accept the argument that Hong Kong can’t find 8 extra Senior Counsel to join the benches. There is therefore no more excuse to say there is a shortage of local talents. A Legal Basis for the HKSAR to Have Expatriate Judges As early as in 1980s, the British and Chinese Governments reached an agreement that, with some restrictions, the Judiciary of the hksar would still be allowed to have expatriate judges. This included not only allowing those expatriate judges who were serving on Hong Kong courts prior to the handover to continue to serve after the handover,124 but also allowing the hksar to recruit judges from other common law jurisdictions. This arrangement has been described as an “understandable reluctance” due to Hong Kong’s lack of “the depth and breadth of legal talent.”125 A review of the Basic Law and other relevant legislation reveals that the Chief Justice of the Court of Final Appeal (cfa) and the Chief Judge of the High Court are required to be “Chinese citizens who are permanent residents of the Region with no right of abode in any foreign country,”126 and that the permanent justices of the cfa are required to have practiced in Hong Kong for at least 10 years.127 Apart from that, there is neither residency nor nationality 122 123 124 125 126 127

122 It should be noted that the remaining ones are non-Chinese by ethnicity, but they may have received legal training in Hong Kong or have substantial connection with Hong Kong. So the actual rate of localization may be even high than the calculation in this paper. 123 See the Bar list in 2015. 124 This arrangement was subsequently written into the Basic Law. Paragraph 1 of Article 93 of the Basic Law provides that: Judges and other members of the judiciary serving in Hong Kong before the establishment of the Hong Kong Special Administrative Region may all remain in employment and retain their seniority with pay, allowances, benefits and conditions of service no less favourable than before. 125 Frank Ching, Recruiting overseas judges the right thing to do for now, So. China Morning Post (May 8, 2013), http://www.smcp.com/comment/insight-opinion/article/1232435/ recruiting-overseas-judges-right-thing-do-now. 126 Paragraph 1 of Article 90, Basic Law. See also, Section 6(1A), Hong Kong Court of Final Appeal Ordinance (hkcfao). 127 Section 12(1A), hkcfao. This virtually may be considered as a permanent residency requirement, requiring the permanent judges to be permanent residents of the hksar. This

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restriction for all other judicial positions. This actually is clearly reflected in Article 92 of the Basic Law which provides that:128 Judges and other members of the judiciary of the Hong Kong Special Administrative Region shall be chosen on the basis of their judicial and professional qualities and may be recruited from other common law jurisdictions. Further than that, Article 82 of the Basic Law even explicitly empowers the cfa to “invite judges from other common law jurisdictions to sit on the Court of Final Appeal.”129 That is to say, recruitment of expatriate judges after handover has got constitutional guarantee. B Expatriate Judges in the cfa Among all the positions in the Judiciary, the greatest concern was over the judicial positions in the cfa – a court which would bear the responsibility to replace the Privy Council as the final appellate court under the judicial system of the future hksar. 1 Composition of the cfa and the Non-permanent Justices The cfa is composed of the Chief Justice and not less than three permanent justices (pj).130 Throughout the past 18 years, there are only three pjs at any one time (See Table 23.1). Apart from the Chief Justice and three pjs, according to ss. 5(2) and (3) of the Hong Kong Court of Final Appeal Ordinance (hkcfao), the cfa “may” also invite non-permanent justices (npjs) from Hong Kong or other common law jurisdictions to sit on the Court.131 Section 9 of the hkcfao provides that the total number of npjs shall not exceed 30 at any one time.132 Between 1997 and 2002, the number of local npjs were greater

128 129 130 131 132

is because, basically a person who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the hksar could become hksar permanent residents. For a detailed definition of hksar permanent resident, see Section 2 of Schedule 1 of Immigration Ordinance. 128 Article 92, Basic Law. 129 Article 82, Basic Law. 130 Section 5, Hong Kong Court of Final Appeal Ordinance (hkcfao). 131 Section 5(2) and (3), hkcfao. 132 Section 9, hkcfao.

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than that of the overseas npjs.133 However, such a trend was reversed since 2003, and the number of local npjs has been decreasing. In 2003, there were eight local npjs and ten overseas npjs. By 2014, there were only 6 local npjs but 12 overseas npjs (See Table 23.1). From the establishment of the cfa to 2015, 16 persons had served as local npjs and 23 persons had served as overseas npjs.134 One interesting finding is that, among those 16 local npjs, only one (Mr. Justice Patrick Chan Siu-oi) is an ethnic Chinese.135 Table 23.1 Numbers of local NPJs and overseas NPJs (1996–2014)136

Year

Permanent Judges

Local NonPermanent Judges

Overseas NonPermanent Judges

1996–1998

3

11

6

1999

3

11

6

2000

3

12

9

2001

3

12

9

2002

3

12

8

2003

3

8

10

2004

3

8

9

2005

3

8

9

2006

3

8

11

2007

3

6

10

133 134 135 136

133 For example, between 1997 and 1998, there were 11 local npjs and 6 overseas npjs. See Hong Kong Judiciary Annual Report [1996–2002] (Hong Kong: The Judiciary). 134 Hong Kong Judiciary Annual Reports [2003–2014] (Hong Kong: The Judiciary). 135 For the details about the judges of the cfa, see the cfa’s website: http://www.hkcfa.hk/ en/about/who/judges/introduction/index.html (Last visitedAug. 28, 2015). 136 Source: Hong Kong Judiciary Annual Reports [1996–2014] (Hong Kong: The Judiciary).

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Year

Permanent Judges

Local NonPermanent Judges

Overseas NonPermanent Judges

2008

3

6

10

2009

3

6

13

2010

3

6

11

2011

3

6

13

2012

3

7

14

2013

3

6

12

2014

3

6

12

As at 31st October 2015, there are altogether 19 justices in the cfa, including one Chief Justice, three pjs, five local npjs and ten overseas npjs.137 137

137 List of cfa Judges (As at 9 August 2015): Name Position. Geoffrey MA Chief Justice R A V RIBEIRO Permanent Judge Robert TANG Permanent Judge Joseph P FOK Permanent Judge Henry Denis LITTON Non-Permanent Judge Frank STOCK Non-Permanent Judge Michael J HARTMANN Non-Permanent Judge S K S BOKHARY Non-Permanent Judge Patrick CHAN Non-Permanent Judge Lord HOFFMANN Non-Permanent Judge Lord MILLETT Non-Permanent Judge Murray GLEESON Non-Permanent Judge Lord NEUBERGER of Abbotsbury Non-Permanent Judge Lord WALKER of Gestingthorpe Non-Permanent Judge Lord COLLINS of Mapesbury Non-Permanent Judge Lord CLARKE of Stone-cum-Ebony Non-Permanent Judge Lord PHILLIPS of Worth Matravers Non-Permanent Judge James SPIGELMAN Non-Permanent Judge William GUMMOW Non-Permanent Judge See List of Judges and Judicial Officers, u.k. Judiciary (Aug. 9, 2015), http://www.judiciary .gov.hk/en/organization/judges.htm#CFA.

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Up to now, all overseas npjs are coming from only three common law jurisdictions, namely, United Kingdom, Australia and New Zealand. As Simon Young pointed out, the first step to implement this practice was Andrew Li cj’s reaching an agreement with the then Lord Chancellor, Lord Irvine in ­September 1997 to have two serving Law Lords coming to Hong Kong to serve as the npjs. They could continue to serve on the cfa even after their retirement in the uk. But for Australia and New Zealand, only retired justices would be sent to serve as npjs.138 Li cj strongly supported the arrangement of having overseas npjs to sit on cfa. He was quoted as having said that: “I believe that Hong Kong is fortunate to have as npjs on the overseas panel distinguished jurists of the highest standing from Australia, New Zealand and the United Kingdom.”139 2. Composition of Each cfa Adjudication Panel Both the Joint Declaration and the Basic Law are silent on the issue of the number of overseas npjs in each cfa adjudication Panel. When the Joint Liaison Group finally reached an agreement in October 1991 that the composition of each adjudication panel of the cfa would be four Hong Kong pjs and one overseas justice, both the Bar Association and the Law Society criticized that the restriction on the number of overseas justices was a breach of the Joint Declaration.140 Notwithstanding such controversy, the 4:1 ratio between local and overseas justices as announced by the Joint Liaison Group remained unchanged. That ratio has been incorporated into the hkcfao. While its s. 5 makes it possible to have npjs to sit on the Court, s. 16 of the same Ordinance makes them an indispensable component for the adjudication panel for every appeal before the cfa. According to s.16, each appeal before the cfa would be heard by a panel of five justices and the composition is as follows:141 i. ii.

President of the Court: The Chief Justice or a permanent judge designated to sit in his place when he is not available; Three permanent judges nominated by the Chief Justice; and

138 139 140 141

138 Simon N.M. Young, Antonio Da Roza & Yash Ghai, Role of the Chief Justice, in Hong Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong 231 (Simon N.M. Young & Yash Ghai eds., 2014). 139 The Chief Justice’s Address at the Opening of the Legal Year (Jan. 11, 1999) cited in Simon N.M. Young, Antonio Da Roza & Yash Ghai, supra note 138, at 232. 140 Lindy Course, Government “misled by law bodies,” So. China Morning Post (Nov. 4, 1991). 141 Section 16, hkcfao.

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iii. One non-permanent Hong Kong judge or one judge from another common law jurisdiction selected by the Chief Justice and invited by the Court. As far as the last component is concerned, Simon Young pointed out that, during the first 13 years of the hksar, 97% of the appeals before the cfa were heard by a panel of judges with one being an overseas npj. This, according to Young, is a “convention” established by Andrew Li, the first Chief Justice of the hksar during his tenure.142 3

Roles of Expatriate Judges in Hong Kong after the Change of Sovereignty The common law system and the Judiciary have been two of the elements which the Hong Kong society treasures the most, especially after the handover. This is largely due to the fact that these two elements have been, both symbolically and practically, guaranteeing the rule of law – the core value in Hong Kong – both before and after the handover.

3.1 Symbolic Value of Expatriate Judges The Judiciary has been the government institution which has the greatest public confidence for most of the time after the handover.143 Since most of the people do not have any personal experience related to the Judiciary, their confidence in the Judiciary largely comes from the image and impression the Judiciary gives to them, including the behavior and integrity of the judges, as well as the feeling of their impartiality in handling cases. Yash Ghai pointed out two reasons for a jurisdiction to have expatriate judges adjudicating cases serving on its courts: one is because of the shortage of suitable local candidates; another reason is “the lack of trust of local judges” among the people within the jurisdiction.144 The first reason is no longer a valid one because as of 2015 Hong Kong is not short of local talents anymore. The second reason seems more likely to be the proper justification for having expatriate judges in Hong Kong today. 142 143 144

142 Simon N.M. Young, Antonio Da Roza & Yash Ghai, supra note 138, at 231. It must be noted that there can only be a maximum of one overseas non-permanent judge in each case before the cfa. 143 See the two surveys cited in Waikeung Tam, Legal Mobilization under Authoritarianism: The Case of Post-Colonial Hong Kong 85–87 (2013). 144 Yash Ghai, Themes and arguments, in Hong Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong 25 (Simon N.M. Young & Yash Ghai eds., 2014).

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It has been noted that the Judiciary in Hong Kong was established by expatriate judges, and the expatriates-dominated Judiciary has also managed to preserve the image of an impartial and corruption-free Judiciary145 throughout the years (both before and after the handover). In fact, the perception of expatriate judges as a symbol of integrity, fairness, impartiality, the rule of law and judicial independence is not only shared among many people in Hong Kong, but also the international community. The presence of expatriate judges in post-handover Hong Kong is seen as especially crucial for the people overseas, the international investors and those who trade with Hong Kong companies in particular.146 Though there is no evidence showing that local judges are less competent than expatriate judges, the bias of having less trust in local judges does exist in Hong Kong. Due to this reason, expatriate judges are considered as a symbol of Hong Kong’s commitment of preservation of the rule of law and judicial ­independence. Such symbolic value is particularly significant in cases against the government or public bodies. As Waikeung Tam pointed out:147 If citizens perceive that the courts are not fair in arbitrating their disputes with the government, this perception of unfairness is likely to undermine their incentive to use the judicial branch to pursue their cause. Among all the expatriate judges, the overseas npjs in the cfa bear the greatest symbolic value of Hong Kong’s preservation of the rule of law and judicial independence. One local litigant in Hong Kong who sued the government said that having overseas npjs sitting on the cfa would give them stronger confidence in the impartiality of the court, for they believe that those overseas npjs could serve the balancing function, preventing situation where the whole ­adjudication panel is only composed of local judges who may be biased (or being pressurized to decide) in favour of the government from happening.148 145 146 147 148

145 In one of his speeches delivered in 2006, Lord Woolf also praised the Hong Kong judiciary for its freedom from corruption. See Lord Woolf in Hong Kong, U.C. London News (May 15, 2006), https://www.ucl.ac.uk/news/news-articles/0605/06051501. 146 Simon N.M. Young & Antonio Da Roza, The judges, in Hong Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong 236 (Simon N.M. Young & Yash Ghai eds., 2014). 147 Waikeung Tam, Legal Mobilization under Authoritarianism: The Case of Post-Colonial Hong Kong 70 (2013). 148 This view was clearly expressed by Winston Chu, former chairman of the Society for Protection of the Harbour, who sued the government over the reclamation of the Victoria

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If such concern is valid, the presence of overseas npjs is even more indispensable in adjudicating politically sensitive cases. The case of Yeung May Wan and Others v. hksar149 demonstrates that both local and expatriate justices are impartial and free from any political influence/interference. In that case, the appellants who were members of the Falun Gong – a group that was proscribed by the Chinese government as an evil cult – were prosecuted for obstruction of a public place, willfully obstructing police officers acting in the due execution of their duty, and assaulting police officers acting in the due execution of their duty by demonstrating on the public pavement outside the main entrance to the Liaison Office of the Central People’s Government. When that case came before the cfa, it was adjudicated by a panel consisting of two ethnic Chinese justices (Chief Justice Andrew Li and Mr. Justice Patrick Chan PJ), Two local non-Chinese PJs (Mr. Justice Bokhary and Mr. Justice Ribeiro), and one overseas npj (Sir Anthony Mason). The five justices unanimously quashed the convictions of the appellants and held that the appellants were only exercising their constitutional rights to conduct peaceful demonstration and the obstructions resulted should be considered as reasonable and thus did not constitute an offence.150 The unanimous decision was clear evidence that judicial independence is alive in Hong Kong and the highest court in Hong Kong is free from any political influence. That is true in most if not all other cases. Hence, the above concern has been exaggerated. Such symbolic value is even more important to the international community as Sir Anthony Mason rightly stated:151 Hong Kong’s reputation as an international financial centre depends upon the integrity and standing of its courts. Further, in the context of Hong Kong’s relationship with the central government in Beijing, it is important that the decisions of the Hong Kong court reflect adherence to the rule of law in accordance with internationally adopted judicial standards.

149 150 151

Harbor in 2003. See Waikeung Tam, Legal Mobilization under Authoritarianism: The Case of Post-Colonial Hong Kong 71 (2013). 149 Yeung May Wan and Others v hksar [2005] 2 hklrd 212. 150 Id. 151 Hon. Sir Anthony Mason ac kbe, The common law in final courts of appeal outside Britain 78 Austr. L.J. 183, 192 (2004).

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The presence of the overseas npjs in the cfa not only “adds an international dimension to Hong Kong’s legal system,”152 it also sends a strong message to the international community that the rule of law and judicial independence remain intact in post-handover Hong Kong. As the Secretary for Justice Mr. Rimsky Yuen pointed out, since the overseas npjs are all eminent judges, so if the Hong Kong courts lack judicial independence and if they would be interfered in discharging their duties, they definitely would not have had accepted the invitation to take up those judicial positions. In other words, these eminent judges have strong confidence in the rule of law and judicial independence in Hong Kong.153 Waikeung Tam strongly emphasized the important role of the expatriate judges in safeguarding the Hong Kong Judiciary from Beijing ­influence/interference. He was of the opinion that:154 Active participation of foreign legal practitioners in the judiciary enhances judicial independence under an authoritarian regime. The presence of a large number of foreign judges, who have a strong belief in the rule of law and/or linkage with prestigious judicial institutions in liberal democracies, has made it more difficult for Beijing to control the judiciary. 3.2. Practical Roles of Expatriate Judges While the symbolic value of expatriate judges is important, their practical value and contribution are also of significance to the development of Hong Kong’s legal system. First of all, at the level of cfa, the overseas npjs can help to ensure that Hong Kong still has high caliber judges sitting in its highest court after the Privy Council ceases to be Hong Kong’s final appellate court. They have contributed to the development of the cfa’s jurisprudence. As noted by Simon Young, the overseas npjs have been “chosen strategically to sit on cases based on their expertise. For example, Lord Millett npj would be sought for insolvency or property cases rather than criminal appeals.”155 By doing so, 152 153 154 155

152 Melissa Kaye Pang, Hong Kong as a Base for Doing Business in Mainland China, Bus. L. Today (June 2013), http://www.americanbar.org/publications/blt/2013/06/01_pang.html. 153 Press Release, Hong Kong sar Government, Speech by the SJ at Chatham House in London (Oct. 15, 2014), http://www.info.gov.hk/gia/general/201410/15/P201410151108.htm. This view was also shared by retired High Court Judge William Waung. See William Waung, Judicial Independence in Hong Kong, Standnews (Aug. 5, 2015), https://thestandnews.com/ politics/judicial-independence-in-hong-kong/. 154 Waikeung Tam, Legal Mobilization under Authoritarianism: The Case of Post-Colonial Hong Kong 53 (2013). 155 Simon N.M. Young & Antonio Da Roza, The judges, in Hong Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong 263–64 (Simon N.M. Young & Yash

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the cfa can best make use of the expertise of these prominent overseas npjs in establishing authoritative precedents for different categories of cases for the lower courts to follow. Given that the Hong Kong legal system is still a member of the common law family, its Judiciary has to ensure that its decisions are consistent with the general principles of common law. This can be best achieved with the help of the npjs. That is their second practical role. In Chen Li Hung v. Ting Lei Miao, Lord Cooke stated that:156 I think that it may be inferred that, in appropriate cases, a function of a judge from other common law jurisdiction is to give particular consideration to whether a proposed decision of this Court is in accord with generally accepted principles of the common law. Third, expatriate judges can also help to enrich the knowledge and skills of the local judges, hence raising the quality of the Hong Kong Judiciary. This is because, while expatriate judges are also coming from common law jurisdictions, given the fact that the jurisprudence of each common law jurisdiction may have its own special characteristics, thus when they come to join the Hong Kong Judiciary, they will bring with them the special jurisprudence of their respective jurisdictions, their skills, experience and expertise. They can then share and exchange their knowledge and skills with local judges, which will eventually benefit the Hong Kong Judiciary.157 Sir Anthony Mason also noticed that this is one of the merits of having overseas npjs. According to him:158

156 157 158

Although the differences in the jurisprudence of the various common law jurisdictions are minor rather than substantial, there are subtle points of difference, and npjs from other jurisdictions can offer distinctive contributions and perspectives.

Ghai eds., 2014). Lord Millett has been serving as an overseas non-permanent judge of the cfa since 2000 until now. 156 Chen Li Hung v. Ting Lei Miao (2000) 3 hkcfar 9, cited in Jill Cottrell & Yash Ghai, Concurring and dissenting in the Hong Kong Court of Final Appeal, in Hong Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong 301 (Simon N.M. Young & Yash Ghai eds., 2014). 157 Ge Feng, Listen to Justice Patrick Chan’s talk about matters relating to Hong Kong’s rule of law in the past, Zhihe Dongfang (Sept. 21, 2014), http://zhihedongfang.com/article-1805. 158 Sir Anthony Mason: A Non-permanent Fixture on the cfa, H.K. Lawyer (August 2010), http:// law.lexisnexis.com/webcenters/hk/Hong-Kong-Lawyer-/Sir-Anthony-Mason-A-non -permanent-fixture-on-the-CFA.

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This view was shared by Mr. Justice Mortimer – a local npj – who was of the opinion that Hong Kong’s overseas judge system allows “international or inter-­ common law input” into the cfa.159 Such contribution has been phrased differently by a local barrister py Lo as maintaining the connection between Hong Kong and other common law jurisdictions.160 Fourth, as Mr. Justice Patrick Chan pointed out, “people who are working and living in Hong Kong are of different nationality and ethnicity, so it is both necessary and justifiable for the court to have expatriate judges who may better respond to the judicial demands of different litigants.”161 The invaluable influence and contribution that the overseas npjs bring forth to the Hong Kong legal profession is also vividly described by one Senior Counsel:162 From the bar table, one can sense the confidence each overseas judge brings to our permanent judges in difficulty cases and the influence they can bring to bear as the judges confer among themselves. … The overseas judge always sits on the extremely left of the presiding judge in the “junior” seat. He … takes care not to dominate the proceedings or to upstage the local members. By questions put with an old world courtesy that hides devastating contents, the core of many a shaky argument is penetrated, essential weaknesses of reasoning are exposed, verbosity is sweetly punctured, and the ill-prepared advocate is pulled up in his tracks. That is all to the good. Apart from anything else, it keeps every advocate up to the mark, and it provides some amusement to everyone else in court. While acknowledging that expatriate judges, the npjs in particular, have made good practical contribution to the development of jurisprudence in Hong Kong, one inevitable question we need to ask is: are those roles irreplaceable by local talents? 159 160 161 162

159 Simon N.M. Young & Antonio Da Roza, The judges, in Hong Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong 264 (Simon N.M. Young & Yash Ghai eds., 2014). 160 P.Y. Lo, Hong Kong’s Two Constitutional “Outsiders,” Blog of the Int’l J. of Const. L. (Feb. 1, 2013), http://www.iconnectblog.com/2013/02/hong-kongs-two-constitutional-outsiders/. 161 See Ge Feng, supra note 156. 162 Michael Thomas, A practitioner’s perspective, in Hong Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong 201 (Simon N.M. Young & Yash Ghai eds., 2014).

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An examination of local jurisprudence from 1991 when the Bill of Rights Ordinance was enacted until now reveals that Hong Kong barristers as well as the Judiciary need to deal with comparative case law and jurisprudence, as well as European and international jurisprudence from that time onwards. After the change of sovereignty, in many cases involving the Basic Law, both Hong Kong barristers and the Judiciary have examined in depth case law from all other relevant common law jurisdictions, be it the us, Canada, Australia, New Zealand, South Africa and so on. The flag desecration case is one good example.163 In all those cases, local judges at all levels of courts and our lawyers have not only demonstrated their competence but also accumulated valuable experiences. Given the constitutional permission that precedents from other common law jurisdictions may be referred to, study and citation of foreign cases have become a routine practice of barristers and judges in Hong Kong. It is not exaggerating to say that they may well be the lawyers and judges most involved in comparative study in the common law jurisdictions in the world. The author of this paper submits that none of the practical contribution of expatriate judges is irreplaceable in today’s Hong Kong. In addition, given the statutory ratio of 4:1 in any cfa adjudication panel, four justices in each panel must be local pjs. The local pjs always play the decisive role in each and every case before the cfa. Comparative jurisprudence also proves that in many cases, particularly in human rights cases, local circumstances may justify the application of the principle of margin of appreciation. To put it another way, an overseas npj can never be decisive in a specific case. Furthermore, an examination of judgments written by npjs in all cases decided by the cfa from the change of sovereignty in 1997 to the end of 2014 shows on the one hand the significant contribution made by npjs, on the other that only one overseas npj has ever written a dissenting opinion.164 It can be 163 164

163 hksar v. NG KUNG SIU AND ANOTHER [1999] 3 HKLRD 907; (1999) 2 hkcfar 442. In this case, in addition to local case law, it also referred to cases from Australia, the us, Germany and regional human rights courts and so on. 164 Judgments Written by Overseas npjs (1997–2014) Name of Overseas No. of Majority No. of Concurring No. of Dissenting NPJs Opinions Written Opinions Written Opinions Collins Collins 1 Clarke 1 1 Gault 1 1 Gleeson 2 3 Gummow 1 Hoffmann 29 10

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interpreted that overseas npjs have confidence in local pjs, especially the majority of local pjs in each specific case. It also indicates that the quality of those judgments in which overseas npjs have participated are on par with the quality of similar cases the highest courts in their respective jurisdictions decide. Otherwise, they wouldn’t be willing to associate their names with those Hong Kong judgments. v

Conclusion

This paper has analyzed both practical and symbolic roles of expatriate judges in Hong Kong during three different historical periods. In the first period from British occupation in 1840s to the time before Japanese occupation of Hong Kong during the Second World War, judges were almost exclusively expatriates. As far as today’s Hong Kong is concerned, the expatriate judges those days made important practical contribution to the successful introduction and establishment of common law system, judicial independence and rule of law in Hong Kong. Their symbolic role during this period might not be the primary concern of both British and colonial Governments. It could well be of equal importance if it did attract a significant population to Hong Kong for the purpose of trade and commerce as argued by Norton-Kyshe.165 The second period is from the time the British resumed its administration in Hong Kong after the Japanese occupation to the time before China resumed its sovereignty over Hong Kong on 1st July 1997. During this period, the British had started to implement localization policy. As far as the Judiciary was concerned, the progress of localization was not smooth and the last expatriate 165

Mason 28 9 Millett 3 2 1 (Judgment on Interest) Neuberger 2 2 Phillips 1 1 Scott 9 4 Spigelman 1 Walker 2 (The data are based on two sources: (i) data for the period from 1997 to 2010 are from ­Simon N.M. Young and Antonio Da Roza, “The judges.” in Simon N.M. Young and Yash Ghai (eds.), Hong Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong (Cambridge: Cambridge University Press, 2014), Chapter xx; (ii) date for the period from 2011–2014 are counted by the author of this paper from the judgments published on the cfa’s website: http://www.hklii.hk/eng/hk/cases/hkcfa/.) 165 See Norton-Kyshe, supra note 36.

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Chief Justice Roberts had at least slowed down if not intentionally reversed localization by appointing and promoting more expatriate judges. By the time of change of sovereignty, there was still significant number of expatriate judges in Hong Kong. The expatriate judges made good practical contributions to the continuing development of Hong Kong’s legal system and rule of law despite the fact that a few of them were involved in some scandals. In the later part of the second period, local legal talents had been trained, gained experience, and become mature. It was fair to say that by the time of change of sovereignty they were already competent enough to take over the Judiciary if necessary. The association of rule of law with the common law system and expatriate judges had become rooted in Hong Kong, which gave the presence of expatriate judges an important symbolic value. Moreover, with the approaching of the change of sovereignty, due to people’s lack of confidence in China particularly after 4th June event, the symbolic role of expatriate judges became more important. During the third period after the change of sovereignty, the progress of localization has picked up its speed and by 2015, it is fair to say that localization has almost achieved its objectives. But the Basic Law, which is Hong Kong’s mini-Constitution, has guaranteed the presence of expatriate judges primarily through the npjs in the cfa. As discussed above, the npjs have, among other practical roles, made good contribution to the establishment of the cfa’s jurisprudence. But they are not irreplaceable and local justices sitting on the cfa are equally competent. Their symbolic value may, however, still be indispensable and invaluable in the foreseeable future. It is because China is not a rule of law country yet despite the fact that it has made big progress towards rule of law in the past four decades. People both in and outside Hong Kong had little confidence in Chinese legal system. Those in the legal field both in and outside Hong Kong know or should know that local judges are equally competent. But ordinary Hong Kong residents and foreigners don’t have such in-depth understanding of Hong Kong judges. In their mind, it is most likely they would still associate Hong Kong local judges with Chinese and with China. While it is true nowadays that rule of law and judicial independence have been firmly established in Hong Kong as its core values, it was not always the case from the very beginning of its colonization. Nor was it true some time as late as in the second half of the 20th century. Ordinary people’s perception and confidence can be easily influenced by negative media reports. For example, soon after the State Council’s “One Country, Two Systems” White Paper was published in 2015, its description of Hong Kong judges as “administrators” who have to “love the country” aroused great controversies in Hong Kong society

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and heated debate between democrats in Hong Kong on one hand and the Hong Kong pro-establishment camp and mainland scholars on the other. This is largely due to the concern of ordinary residents that the Beijing authorities are going to interfere with/undermine the independence that has been enjoyed by the judges in Hong Kong. Lord Neuberger, the uk Supreme Court’s President, who sits as an overseas npj in the cfa dismissed worries over demands in the White Paper for local judges to be patriotic by saying that “I wonder if there is anything to worry about in the white paper.”166 The author of this paper has argued somewhere else that Lord Neuberger’s assurance of no worry about rule of law in Hong Kong will remove hundreds and thousands of ordinary people’s concern and worry over the future of rule of law in Hong Kong. Due to his status, his words would be much more effective than hundreds of reports of similar assurance given by Chinese people be they officials or scholars from either Hong Kong or China.167 Therefore, the symbolic roles of overseas judges, particularly npjs in the cfa, will remain important so long as Hong Kong’s host state, China, has not developed into a fully-fledged rule of law state. The day China becomes a rule of law state will be the day on which it will be no longer necessary for Hong Kong to have expatriate judges. 166 167

166 See “No need to fear Beijing’s white paper, says top British judge Lord Neuberger” So. China Morning Post, http://www.smcp.com/news/hong-kong/article/1580878/no-need-fear -beijings-white-paper-says-top-uk-judge-lord-neuberger (last visitedOct. 31, 2015). 167 Lin Feng (林 峰 ), Report on the Implementation of the Basic Law in Hong Kong in 2014 (香 港 《 基 本 法 》 的 落 实 状 况 ) (2014), in The Bluebook: Annual Report on China’s Rule of Law (《 法 治 蓝 皮 书 》 ), 2015, Social Science Literature Press (社 科 文 献 出 版 社 ).

chapter 24

Resolving Cross Country Tax Disputes in Cases of International Economic Double Taxation Yitzhak Hadari i

Introduction

Transfer-pricing disputes between tax authorities and multinational enterprises (mnes) are one of the most important issues in international taxation. The eu is the prime example of resolving most economic double taxation resulting from such international tax conflicts. Transfer pricing refers to the pricing of goods and services within a multinational organization (concern), regarding cross-border transactions. For example, goods from the production division may be sold to the marketing division, or goods from a parent company may be sold to a foreign subsidiary, with the choice of the transfer price affecting the division of the total profit among the parts of the company. A more specific example could be the following: Firm T is a pharmaceutical company which is located in Israel. B is a subsidiary of T and is located in Holland. T sells B raw materials for a medicine at $700,000 (annually, with a gross profit of 500,000), while B sells the end products at $1,000,000, thus having a gross profit of $300,000. The problem stems from the fact that the Dutch tax authorities might decide that the appropriate price for the deal between T and B should have been $400,000 and thus the true profit of B is actually $600,000. This decision will cause T to be economically double taxed at the overlapping sum of $300,000. This has led to the rise of transfer pricing regulations as governments seek to stem the flow of taxation revenue overseas, making the issue one of great importance for multinational corporations. The resolution of these disputes requires a balancing of the respective interest of both parties. On the one hand, tax authorities seek to subject mnes to an appropriate level of taxation on their global income and to achieve an appropriate allocation of that income among jurisdictions involved. On the other hand, mnes wish to conduct their activities and preserve their role as the major driving force in the world economy without being subjected to double taxation. They expect to be able to operate within a world tax structure that offers them a reasonable degree of certainty coupled with uniform and equitable results.

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Several mechanisms have evolved for resolving conflicts between mnes and national tax administrations. Such mechanisms are: apa (Advance Pricing Agreement), sep (Simultaneous Examination Procedure), and Arbitration. As appropriate to this conference, my focus will be on arbitration as the solution. ii

How Can Arbitration Solve the Problem of Double Taxation?

One of the most advanced mechanisms for resolving binational or multinational tax disputes, which also assists in avoiding double taxation, is arbitration. The concept of arbitration, as it is generally referred to in these matters, covers binding arbitration as well as any kind of mediation or joint appointment of an advisory commission that would render its opinion on the specific solution for the elimination of double taxation in a given case. The binding arbitration mechanism has many advantages: 1. 2. 3. 4. 5.

iii

It enables a definite solution to double taxation following a deadlock in the treaty mutual agreement procedure. It is relatively less expensive and more efficient than other techniques. It could be fair to mnes by granting them the right to a hearing. The arbitrators could be impartial experts who would be qualified to assess the pricing methodologies and all the economic factors critical to a satisfactory decision. It is up to the countries involved to decide whether to subject the procedure only to the arms-length norm and methods (comparable market prices), or to leave room for greater flexibility to the arbitrators or the competent authorities on the basis of the arbitration findings. Arbitration in Practice

A eu Background: The origin of the Arbitration Convention was the Commission’s 1976 proposal for a directive to eliminate double taxation in the case of transfers of profits between associated enterprises in different Member States. After long negotiations in the Council, the Commission’s proposal was transformed from a directive into an inter-governmental Convention and signed on 23 July, 1990.

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The Arbitration Convention went into force on 1 January, 1995. It establishes a procedure to resolve disputes where double taxation occurs between enterprises of different Member States resulting from an upward adjustment of profits of an enterprise in one Member State. Most bilateral double taxation treaties include a provision for corresponding downward adjustments of ­profits of the associated enterprise concerned but do not impose a binding obligation on the contracting States to eliminate the double taxation. With the enlargement of the eu, the Arbitration Convention was successively extended to most new members. The eu Arbitration Convention provides for mandatory arbitration in cases where Member States cannot reach a mutual agreement on the elimination of double taxation within two years of the date on which the case was first submitted to one of the competent authorities of the Member States involved. The Convention thus improves the conditions for cross-border activities in the Internal Market. On 23 April 2004, the Commission of the European Communities adopted a Communication to the Council, the European Parliament and the European Economic and Social Committee on the work of the eu Joint Transfer Pricing Forum in the field of business taxation from October 2002 to December 2003 and on a proposal for a Code of Conduct for the effective implementation of the eu Arbitration Convention.1 The Code of Conduct2 applies in cases where an eu Member State’s tax administration increases the taxable profits of a company from its cross-border intra-group transactions, for example by making a transfer pricing adjustment. It would ensure a more effective and uniform application by all eu Member States of the 1990 Arbitration Convention3 by establishing common procedures concerning: 1. 2.

The enforcement of statute of limitation: a company suffering double taxation has 3 years to present its case to the relevant Member State’s tax administration. Defining the exact start and end point of the two-year period during which a Member States’ tax administrations must attempt to reach an agreement that eliminates the double taxation that is the subject of the complaint.

1 90/436/EEC of 23 July 1990; com (2004) 297 final of 23 April 2004. 2 See Official Journal C176 of 28/07/2006, p. 8. 3 90/436/EEC.

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3.

The arrangements to be followed during this mutual agreement procedure, including the practical operation of the procedure, transparency and taxpayer participation. The practical arrangements for the second phase of the dispute resolution procedure provided for in the eu Arbitration Convention that must follow if there is no mutual agreement between the tax authorities within two years (i.e., after a maximum of two years of negotiations between two member states a mandatory arbitration must be commenced).

4.

The Code, which also contains a recommendation to eu Member States on the suspension of tax collection during cross-border dispute resolution procedures, would recommend that Member States also apply its rules to the dispute settlement provisions in their double taxation treaties with each other. The Code of Conduct is a political commitment and does not affect the Member States’ rights and obligations or the respective spheres of competence of the Member States and the Community. iv

How Would the Arbitration Work?

It is admitted at the outset that the issues in this area are among the most complex in the taxation field, primarily because of the wide range of subjects involved. Of particular difficulty is the issue of transfer pricing – how to determine a fair price for tax purposes. Analysis of this issue and the development of appropriate solutions calls for special economic, tax, and legal expertise. It should be noted that there has been great progress in collecting reliable data necessary to analyse the economic factors associated with intercompany transactions; and to possess a similar understanding of mnes generally and of the particular industry under consideration.

part 5 Judicial Attitudes Towards “Others” in Domestic Courts

⸪

chapter 25

Citizens and Aliens in U.S. Courts Wayne McCormack When asked how foreign nationals (known as aliens) are treated in U.S. courts, the short answer should be “just like citizens,” but of course a more complete answer will be a bit more complicated. The basis for equal treatment is found in both the Fifth and Fourteenth Amendments to the U.S. Constitution: no person shall “be deprived of life, liberty, or property without due process of law.” The Due Process Clause was adapted from the British Magna Carta, which assured that the Crown would follow the “law of the land,” a phrase that was later converted to “Due Process of law.” The applicability of Due Process to every person and not just to citizens should guarantee the same treatment, with respect both to applicable law and to procedures, for both citizens and aliens. The differences come in areas in which the fact of nationality is relevant to the issues involved. i

Immigration

The Due Process Clauses of the U.S. Constitution requires both the states and the federal government to provide Due Process to anyone within their jurisdiction, although the requirements of Due Process are not terribly strong in the immigration context. The basic difference between an alien and a citizen for immigration purposes stems from the proposition that a citizen has an unconditional right to reside in the country. There is no such status in U.S. law as an “exile.” A citizen may be subject to rigorous examination at entry to determine whether there is probable cause to believe that he is committing or has committed a criminal offense, in which case he might be arrested. But even under arrest, a citizen is entitled to be present within the country.1 Because the question of whether an alien stays or leaves the U.S. is g­ overned almost entirely by administrative processes with little judicial oversight, there is no need to go into great detail of U.S. immigration law. For present purposes, 1 This explains why John Walker Lindh and Yaser Hamdi were both brought to the United States instead of Guantanamo, even though Lindh was prosecuted criminally while Hamdi was detained in military custody.

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a slight overview will be sufficient to make the point that the judiciary has made a few Due Process decisions on behalf of noncitizens. Legal immigration to the U.S. has hovered at just over 1 million per year for the past decade. In addition, there are about 46.5 million non-immigrant admissions (visitor, business, diplomatic) to the U.S. each year. Unless a person attempts to circumvent border controls by arriving via an unauthorized location, she will arrive at an official entry point, whether by air, water, or land arrival. At an official entry point, she presents herself to an immigration officer who questions whether she has the proper visa and is authorized to enter the country. If not, she may be turned away summarily on the theory that she has never set foot within the U.S., even though an airport terminal is obviously on U.S. soil. The determination of admissibility is subject only to whatever process Congress decrees,2 which at the moment depends on a determination by the officer at the desk and whether the person entering has the proper credentials. Sometimes, it may take a while to make that determination, so the person may be retained3 in a semi-custodial setting for a few days while matters are sorted out. Because a person in this situation technically has not “entered” the country (even though physically located in a government facility somewhere), Due Process does not attach. Obviously, with such a large country there are thousands of potential unauthorized entry points. A person who enters the country illegally is subject to immediate “removal” (formerly known as “deportation”). In a veritable flood of illegal migration over the past couple of years, there have been thousands of children making their way from Central America to the U.S. – more than 50,000 unaccompanied children in the past year. These children are now housed on military bases awaiting determination of their status. Another category are those who have simply overstayed their visas. Almost all of those who are apprehended accept removal voluntarily for the simple reason that, unless the person has reason to seek asylum, the only fact at issue in a hearing would be whether the visa had expired. If an alien lawfully admitted commits a crime while still within the time limits of a valid visa, then the statutes allow for detention pending removal, and the Supreme Court has upheld temporary detention for this purpose. The Court, however, held that an alien subject to removal but with nowhere to go

2 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1963). 3 I choose the word “retained” rather than “detained” because the latter has a stronger connotation of custody.

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may be detained only for a reasonable period to determine removability.4 If this person could be a threat to public safety, there is a great temptation to detain him or her in custody, but once removal is no longer an option, then the person must be released or charged with a crime. The Supreme Court essentially held that unreviewed indefinite detention would violate Due Process. When an alien has been found to be unlawfully present in the United States and a final order of removal has been entered, the Government ordinarily secures the alien’s removal during a subsequent 90-day statutory “removal period,” during which time the alien normally is held in custody. A special statute authorizes further detention if the Government fails to remove the alien during those 90 days.5 In these cases, we must decide whether this post-removal-period statute authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien’s removal. We deal here with aliens who were admitted to the United States but subsequently ordered removed. Aliens who have not yet gained initial admission to this country would present a very different question. Based on our conclusion that indefinite detention of aliens in the former category would raise serious constitutional concerns, we construe the statute to contain an implicit “reasonable time” limitation, the application of which is subject to federal court review. The British House of Lords reached a similar conclusion under the provisions of the European Convention on Human Rights.6 Finally, there are the categories of persons who may be admitted to the U.S. because of conditions in their home country, refugees and asylum seekers. Generally speaking, the President determines after consultation with Congress the number of refugees whose admission “is justified by humanitarian concerns or is otherwise in the national interest.”7 There are additional provisions for admission beyond those numbers when an “emergency refugee situation is justified by grave humanitarian concerns or is otherwise in the national 4 Zadvydas v. Davis, 533 U.S. 678 (2001). 5 An alien ordered removed [1] who is inadmissible…[2] [or] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision 8 u.s.c. § 1231(a)(6) (1994 ed., Supp. v). 6 A v. Sec’y of State for Home Dept., [2004] ukhl 56, 1004 All Eng. Rep. 271 (Dec. 16, 2004). 7 8 u.s.c. § 1157(a)(1).

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interest.”8 To be eligible for asylum, the applicant must demonstrate that he or she is likely to be “persecuted” if returned to the home country.9 Thus, it is not possible to make as simple a distinction between entry and removal as the above discussion might have seemed. A Due Process hearing will be required for any person who makes a colorable claim for asylum, regardless of whether he or she were validly admitted in the first place. Moreover, a person who was validly admitted is even entitled to at least an informal hearing to determine whether she has in fact overstayed her visa. In a highly publicized confrontation, Arizona enacted a law making it a state crime for an alien to be in Arizona without carrying valid federal registration documents, a statute that the Supreme Court struck down as interfering with the authority of the federal government.10 Continuing the dispute, some law enforcement units in Arizona attempted to enforce federal immigration laws by detaining persons as to whom they had a “reasonable suspicion” of visa violation. This practice was held to violate the rights of both citizens and aliens who were detained on the basis of their ethnicity.11 ii

Property, Welfare, and Education Rights

There have been Supreme Court cases throughout this nation’s history involving rights of aliens to inherit property in the U.S.,12 but the most salient analyses came in the immediate aftermath of World War ii and the Cold War. In 1923, the U.S. and Germany signed a treaty containing, like other treaties before it, a rather quirky distinction between real estate and personal property when it came to the right of a person in one country to inherit from nationals of the other. It is not surprising that some states had different views of the rights of aliens to inherit.

8 8 u.s.c. § 1157(b). 9 8 u.s.c. § 1158 Asylum. The burden of proof is on the applicant to establish that the applicant is a refugee… [that] race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant. 10 Arizona v. United States, 567 U.S. __, 132 Sup. Ct. 2492 (2012). 11 Melendres v. Arpaio, 989 F. Supp. 2d 822, 825 (D. Ariz. 2013). 12 The most famous of the early cases was Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. (7Cranch) 603 (1813), reaffirmed in Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816), which cleared the way for British subjects to inherit about one-third of the State of Virginia from Lord Fairfax.

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In cases involving property rights of Germans during and after World War ii13 and citizens of communist countries during the Cold War,14 the Supreme Court came to scrutinize state rules affecting aliens to determine if the operation of the rule would interfere with the federal hegemony over foreign affairs and international relations.15 This approach could be criticized for lack of clarity – it leaves the states free to enact regulations affecting aliens until the Court decides that the state has gone too far. That is not as irrational as it might seem, however, because this approach also leaves it open for Congress to legislate on a particular topic and make it clear whether states are allowed to regulate. The concept of Equal Protection offers another line of analysis for regulations affecting aliens. Under this rubric, both the federal and state governments are prevented from treating aliens differently than citizens without an adequate reason. The opening salvo in this controversy occurred when the Supreme Court struck down a state fifteen-year residency requirement for aliens as a pre-­ condition for eligibility for welfare benefits.16 The majority stated that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a single ‘discrete and insular’ minority for whom such heightened judicial solicitude is appropriate.” The Court concluded that “a State’s desire to preserve limited welfare benefits for its own citizens (the special interest doctrine) is inadequate to justify restricting benefits to citizens and long-time resident aliens.” The Court promptly extended this concept by striking down a New York citizenship requirement for all competitive civil service positions as “neither narrowly confined nor precise in its application”17 and invalidating a Connecticut rule restricting admission to the bar to citizens of the United States on the ground that it was unnecessary to the accomplishment of valid state purposes.18 13 14 15

16 17 18

Clark v. Allen, 331 U.S. 503 (1947) (California statute requiring reciprocal rights of inheritance did not violate treaty). Zschernig v. Miller, 389 U.S. 429 (1968). “The several States, of course, have traditionally regulated the descent and distribution of estates. But those regulations must give way if they impair the effective exercise of the Nation’s foreign policy.” Id. at 440. Graham v. Richardson, 403 U.S. 365 (1971). Sugarman v. Dougall, 413 U.S. 634 (1973). In re Griffiths, 413 U.S. 717 (1973).

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With the states prohibited from imposing differential eligibility requirements for welfare, Congress turned to the issue and adopted a five-year residency period for federally funded medical insurance. The Supreme Court ­upheld this requirement on the basis that it fell within the field of immigration and naturalization as to which Congress has wide discretion.19 The Court reasoned that Congress had distinguished between recent residents and longerterm residents on the basis of their “affinity to the United States,” a position that was “unquestionably reasonable.” Meanwhile, Texas adopted a provision in 1975 that the Supreme Court described as denying “to undocumented school-age children the free public ­education that it provides to children who are citizens of the United States or ­legally admitted aliens.” The Court reviewed the purported goals of the State and found each of them wanting.20 In many ways, it is surprising the level of protection that is given under U.S. law to aliens who are not lawfully present. When the cases on social services are combined with Due Process holdings, the undocumented do have extensive rights in this country. Of course, securing those rights can be problematic given the language and financial barriers facing many aliens. iii

Human Trafficking and Extraterritorial Jurisdiction

The word “trafficking” often is used today to refer to various forms of forced labor or marketing of “personal services.” Although it is impossible to get precise numbers on the phenomena, it is clear that there are many thousands if not millions of people in various forms of forced labor today. The major components are sex marketing, domestic servants, and agricultural workers, but other components of manual labor may also involve some degree of coercion. Some forms of forced marriage are included in international conventions, and organ trafficking has become a part of the phenomenon in recent years. The statutes of the United States have long criminalized the slave trade. Even before the Civil War and Emancipation, it was a crime for an American citizen to work on a slave ship. Following adoption of the Thirteenth Amendment, the U.S. Code provided criminal penalties for holding another person in peonage, slavery, or involuntary servitude. For present purposes, our question is whether U.S. citizens and aliens are treated any differently by the courts. In theory, there should be no difference 19 20

Mathews v. Diaz, 426 U.S. 67 (1976). Plyler v. Doe, 457 U.S. 202, 205 (1982).

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but in practice we encounter the unfortunate problem that courts find it virtually impossible to obtain jurisdiction over a noncitizen. It is obvious that some countries have extremely low ages of consent for sex and that some countries, such as Thailand, derive substantial revenue from the sex trade within their borders and will not move to extradite even offenders of international conventions. None of the international conventions contain the usual aut dedere aut judicare (extradite or prosecute) on which extradition would be based. Now add the lack of conspiracy theories to the lack of aut dedere aut judicare. Combining these two limitations means that a state choosing not to become involved in controversy or actively wishing to harbor a trafficking operation can effectively shield the organizer of human trafficking from legal systems of other nations. Thus, a state that takes human trafficking seriously would be forced to choose between doing nothing and unlawful abduction of the accused organizer. The Palermo Protocol is the major international provision on forced labor.21 The U.S. adopted a series of provisions in 2000 under the heading of the Trafficking Victims Protection Act,22 with particular emphasis on sex trafficking. The tvpa also added a new provision further defining “forced labor.”23 In addition to these provisions on forced labor, the U.S. Criminal Code ­contains a number of provisions that can be brought to bear on the commercial sex trade. The chapter dealing with “sexual abuse” criminalizes nonconsensual sex within federal territories or the extraterritorial jurisdiction of the U.S.24 The chapter on “sexual exploitation and other abuse of ­children” ­criminalizes sexual behavior with children either within the special 21

Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, United Nations Hum.Rts. Off. of the High Commissioner (Nov. 15, 2000), http://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolTraffickingInPersons.aspx. 22 18 u.s.c. §§ 1589–1596. 23 18 u.s.c. § 1589. (a) Whoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of, the following means– (1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person; (2) by means of serious harm or threats of serious harm to that person or another person; (3) by means of the abuse or threatened abuse of law or legal process; or (4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another ­person would suffer serious harm or physical restraint, shall be punished as provided. . . . 24 18 u.s.c. §§ 2241–2248.

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j­urisdiction of the U.S. or through use of the channels or instrumentalities of interstate commerce.25 Thousands of young women are trafficked into the U.S. every year in forced sexual activity yet there are hardly any prosecutions for this barbarous activity.26 The U.S. has prosecuted a handful of citizens who ventured to other countries to engage in illicit sex27 and has pursued more vigorously those who engage in pandering of child pornography on the internet.28 Despite these efforts, however, the inability to obtain jurisdiction over some of the worst offenders will remain a problem until the nations of the world come to a ­collective decision to take vigorous action. iv

Criminal Matters

Criminal matters highlight some of the difficulties with the U.S. federal system in which the states have primary responsibility for most domestic crimes. Because some states, notably Texas, have failed to comply with obligations to notify criminal defendants of their rights under the Vienna Convention on Consular Relations, Mexico took the issue to the International Court of Justice. When the i.c.j. held that the U.S. had failed to comply,29 the President of the U.S. attempted by a memorandum to require state officials to comply with the treaty. But the U.S. Supreme Court held that the President, in the absence of action by Congress to enforce the treaty, had no authority over the states in 25 18 u.s.c. §§ 2251–2260A. 26 A recent development is the advent of “Human Trafficking Courts,” which have been initiated in many cities in the U.S. The Human Trafficking and State Courts Collaborative is a consortium of many agencies attempting to support and coordinate this effort. http:// www.htcourts.org/. One of the principal techniques is diversion of prostitution cases from criminal court to determine if the accused is actually a victim of trafficking. Another view of “sex worker” status would assert that anyone of sufficient age of consent should be free to pursue his or her own view of sustainable employment. The digitalage version of the argument is that “The internet is making the buying and selling of sex easier and safer. Governments should stop trying to ban it.” Prostitution: A personal choice, The Economist, http://www.economist.com/news/leaders/21611063-internet-making -buying-and-selling-sex-easier-and-safer-governments-should-stop (Aug. 9, 2014). 27 See United States v. Clark, 435 F.3d 1100 (11th Cir. 2006). 28 See United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009); United States v. Harvey, 2 F.3d 1318 (3d Cir. 1993). 29 Press Release, International Court of Justice, Avena and Other Mexican Nationals (Mexico v. United States of America) (Mar. 31, 2004), http://www.icj-cij.org/docket/index.php? pr=605&code=mus&p1=3&p2=3&p3=6&case=128&k=18.

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the application of their criminal law.30 The State of Texas has executed at least two Mexican nationals in the past several years in defiance of the i.c.j. ruling. A Extraterritorial Jurisdiction and Abduction In a number of cases, the U.S. courts have held that the U.S. not only can exercise extraterritorial jurisdiction over criminal offenses but that abduction of a person from abroad does not defeat personal jurisdiction to adjudicate the offense. Mexico has objected vociferously to the abduction of some its nationals for trial in the U.S. to no avail. The basis of exercising jurisdiction over foreign acts fits within traditional norms of international law:31 1. 2. 3. 4. 5.

Acts with effects within the nation, Protection of the interests of the nation, Nationality of the offender, Nationality of the victim, and Universal jurisdiction.

Thus, U.S. courts have exercised jurisdiction over Aircraft hijackers who injured or kidnapped U.S. citizens or U.S. aircraft,32 those who bombed U.S. facilities in foreign countries,33 foreign nationals who have been involved in drug trafficking to the U.S.,34 and a doctor who was involved in the torture and death of a U.S. drug agent.35 B Terrorism Issues Among the many nefarious aspects of the U.S. so-called “war on terror” are torture, extraordinary renditions, unlawful surveillance, and the infamous Guantanamo Bay detentions. It turns out that there have been executive detentions of both citizens and aliens within the borders of the U.S. It is extremely tempting to incarcerate individuals who are “known” to be threats to public safety. Somebody who is assembling a bomb in his or her ­garage ought not to be free on the streets. But all of human experience tells us 30 31 32 33 34 35

Medellín v. Texas, 552 U.S. 491 (2008). United States v. Layton, 509 F. Supp. 212, 214–15 (n.d. Cal. 1981). United States v. Yunis, 288 U.S. App. d.c. 129, 924 F.2d 1086 (d.c. Cir. 1991); United States v. Yousef, 927 F. Supp. 673 (s.d.n.y. 1996). United States v. Ghailani, 751 F. Supp. 2d 502 (s.d.n.y. 2010). United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997). U.S. v. Alvarez-Machain, 504 U.S. 655 (1992).

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that preventive detention is an open invitation to official abuse. Thus, international conventions as well as basic Due Process require judicial procedures to review incarceration. In the context of terrorism, however, the U.S. courts have deferred not only to executive detention but have even refused to adjudicate claims of torture in numerous cases. Guantanamo and Domestic Detentions First, the Supreme Court held that even a U.S. citizen could be held in military detention without a full trial if a court were persuaded in a civil habeas corpus action that he had acted in collusion with enemies of the U.S.36 Then the Court allowed the United States to detain alleged “enemy combatants” at Guantanamo under unstated standards to be developed by the lower courts with “deference” to Executive determinations.37 Later cases from the d.c. Circuit held that detention could be justified by “membership or substantial support” of an enemy group. Although in both situations, the Court placed the burden of proof on the Government, the d.c. court permitted affidavit evidence rather than direct testimony and in some instances concluded that statements of government officials were entitled to a presumption of regularity. Jose Padilla, a U.S. citizen, was arrested deplaning at O’Hare Airport, imprisoned in the United States for three and a half years without a hearing as an alleged “enemy combatant” and allegedly mistreated in prison. When the Supreme Court appeared ready to grant certiorari on his habeas corpus appeal,38 the Government handed him over for trial in civilian court where he was convicted on material support charges. His lawsuit for damages for wrongful detention and torture was dismissed on grounds of “good faith” immunity.39 These cases have treated both citizens and aliens to equal levels of judicial deference to executive detentions. More troubling than the detentions are those cases in which prisoners have been subjected to torture or other abuse, mostly on foreign territory. Khaled El-Masri40 is a German citizen of Lebanese descent, who alleged that he was detained by Macedonian officials before being transferred to cia custody. He claimed that he was detained in one of the Central Intelligence Agency (cia) “black sites” and tortured. His case was dismissed under the doctrine of “state secrets privilege” (ssp). The Court agreed with the Government that classified information was “so central to the action that it cannot be fairly 36 37 38 39 40

Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Boumediene v. Bush, 553 U.S. 723 (2008). Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005), cert. denied, 547 U.S. 1062 (2006). Padilla v. Yoo, 678 F.3d 748, 750–51 (9th Cir. 2012). El-Masri v. United States, 479 F.3d 296, 300 (4th Cir. 2007).

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litigated without threatening…disclosure.” The European Court of Human Rights recently held in a preliminary decision that Macedonia was liable for its complicity in the U.S. prisoner abuse. Maher Arar41 is a Canadian citizen, Syrian native domiciled in Ottawa, Canada. He was detained at John F. Kennedy (jfk) Airport by U.S. authorities on his way to Montreal from a family trip to Tunisia. After a couple of days of interrogation, he was shipped off to Syria for imprisonment and mistreatment, and finally released to Canadian authorities when it was realized that he was mistaken for another person with suspicious connections. His lawsuit against U.S. authorities was dismissed under the “special factors” exception to tort actions for violations of law by federal officials. The court asserted that a Due Process claim arising from “torture, coercive interrogation, and detention in Syria” implicated national security and foreign policy decisions that should remain with the political branches Arar was subsequently awarded $10.5 million by Canadian authorities.42 Binyam Mohamed,43 an Ethiopian citizen residing in the United Kingdom, was apprehended on immigration charges in Pakistan. He was subjected to “enhanced interrogation techniques” at several cia “black site[s]” before being repatriated to England, which awarded him £ 1 million in damages.44 The U.S. suit was dismissed under ssp on the ground that the prospect of compelled or inadvertent disclosures of classified information in the course of litigation may “seriously harm legitimate national security interests.” Ali al-Marri,45 a permanent U.S. resident alien, was originally charged with perjury, then detained as an enemy combatant, for a total non-judicial detention of four years before a panel of the Fourth Circuit finally held that he must be released or tried. “To sanction such presidential authority to order the ­military to seize and indefinitely detain civilians, even if the President

41 42

43 44

45

Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009). See Randall Palmer, Canada to Pay Arar $10.5 Million for Syria Ordeal, Wash. Post (Jan. 26, 2007, 3:45 pm), http://www.washingtonpost.com/wp-dyn/content/article/2007/01/26/ AR2007012600402.html (“Canada apologized on Friday to software engineer Maher Arar who was deported to Syria by U.S. agents after Canadian police labeled him an Islamic extremist, and paid him $10.5 million in compensation.”) Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc). See Patrick Wintour, Guantanamo Bay Detainees to Be Paid Compensation by uk Government, The Guardian (Nov. 15, 2010), http://www.theguardian.com/world/2010/nov/16/ guantanamo-bay-compensation - claim (reporting that the Government had reached a settlement with Mohamed and other Guantanamo detainees to compensate them for British involvement in their detention and treatment at Guantanamo). Al-Marri v. Wright, 534 F.3d 213 (4th Cir. 2008).

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calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution – and the country.” The en banc court then held as follows: Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote that, if the Government’s allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a [separate] 5 to 4 vote that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant…, al-Marri has not been afforded sufficient process to challenge his designation as an enemy combatant. Similarly to Padilla, when the Supreme Court granted certiorari on his case, the Government said “oops” and decided to transfer him to civilian court for trial, at which point he pleaded guilty to conspiracy to provide material support and was sentenced to 8.5 years in prison.46 ndaa Detention Provision After huge fanfare and controversy about authorizing extrajudicial detention even of persons arrested on U.S. soil, Congress added the following provision to the National Defense Authorization Act of 2012, § 1021: Congress affirms that the authority of the President under the [aumf] includes the authority for the Armed Forces to detain…any person…who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners…pending disposition under the law of war. Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States. President Obama signed the bill on Dec. 31, 2011, with the comment that “the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 aumf. . . . The Administration will not authorize the indefinite military detention without trial of American citizens.” Thus, after enormous political posturing, the provision seems to have no practical or legal effect. 46

See Al-Marri v. Davis, 2012 U.S. Dist. LEXIS 20558 (D. Colo. Feb. 17, 2012).

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Electronic Surveillance The Foreign Intelligence Surveillance Act47 from its inception in 1978 made a couple of distinctions between citizens and aliens. The Act created a special court (the fisa Court or fisc) to hear applications for electronic surveillance (and then later, for acquisition of records and clandestine searches) related to foreign intelligence or terrorism investigations. For example, no court order is required if there is “no substantial likelihood [of] capture of communication by United States person.”48 And a U.S. person (citizen or permanent resident) is not to be targeted “upon basis of activities protected by the first amendment.”49 As is now well known, these provisions were ignored routinely because the National Security Agency (nsa) swept up everything (e-mails and telephone calls) on the theory that the agency would not know what was “terrorism related” until after analyzing patterns. Eventually, the Government went to the fisa Court and received orders authorizing the program of “bulk record collection,”50 which were upheld by a federal district court.51 v

Ordinary Litigation

Finally, we should take a short look at how aliens have fared in ordinary litigation in the U.S. courts. The most obvious issues are those around jurisdiction to adjudicate disputes that involve foreign entities. In general, the U.S. Supreme Court has applied similar standards to both citizens and aliens but with a distinct nod toward the international implications of asserting jurisdiction over aliens. The basics of personal jurisdiction in civil actions for state courts were established by federal law under the Due Process clause when the Supreme Court ruled that states could not exercise jurisdiction without a sufficient nexus. Taking cues from international law, the Court held that the usual basis of personal jurisdiction would be presence in the forum but that ownership of property or 47 10 u.s.c. §§ 1801–1862. 48 10 u.s.c. § 1802. 49 10 u.s.c. § 1805. 50 In re Application of the Fed.Bureau of Investigation for an Order Requiring the Prod.of Tangible Things from Redacted, Case No. br 13–109, 2013 U.S. Dist. LEXIS 134786 (f.i.s.c., Aug. 29, 2013) (released in redacted form Sept. 17, 2013); In re Application of the fbi for an Order Requiring the Production of Tangible Things From Verizon, No. br 13–80, 2013 U.S. Dist. LEXIS 147002 (f.i.s.c. Apr. 25, 2013) (“Secondary Order”). 51 aclu v. Clapper, 959 F. Supp. 2d 724 (d.d.c. 2013).

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doing business within the state could also give rise to at least limited jurisdiction, and that a state could adjudicate issues of status of its citizens regardless of their presence.52 As matters developed further over the decades, courts became more accustomed to dealing with what U.S. law refers to as “long-arm” ­jurisdiction over non-residents who had sufficient minimum contacts to satisfy traditional notions of fair play and substantial justice.53 As applied to foreign entities, the Supreme Court had little occasion to deal with the issue until rather recently. Indeed, in one important case, Audi and its importer conceded jurisdiction in Oklahoma in a lawsuit involving a traffic accident.54 Lingering issues over how to deal with global manufacturing came to a head in Asahi v. Superior Court of California.55 This case arose from a motorcycle accident in which it was alleged that the rear tire blew out as a result of a defect causing a fatal crash. The tube in the rear tire was manufactured in China by Cheng Shin using a valve made by Asahi in Japan. The plaintiffs settled with Cheng Shin, which then sought to litigate responsibility of Asahi in California courts. The U.S. Supreme Court ultimately held that jurisdiction would not be proper, but the reasons left two lines of thought open for the future. In the view of five Justices, the foreign manufacturer could be brought into a U.S. court only if it “purposefully directed” its business toward the forum. Four Justices did not go along with that position but would have held instead that bringing a tort case in a U.S. court against a foreign manufacturer would depend entirely on the reasonableness of its being hailed into a court in a distant forum. Because all but one of the other five also agreed with the holding on reasonableness, it remains to be seen whether “purposeful availment” or “reasonableness” or both will be applied to jurisdiction over foreign manufacturers. Other applications of domestic tort law to foreign citizens or entities include three particular statutes. The Alien Tort Statute56 provides jurisdiction and a cause of action for suit by an alien for tort committed in violation of law of nations or treaty. This statute is odd in that it opens U.S. courts to suits between two aliens, but only if the claim involves international law.57 The Torture 52 Pennoyer v. Neff, 95 U.S. 714 (1877). 53 International Shoe Co. v. Washington, 326 U.S. 310 (1945). 54 World-Wide Volkswagen v. Woodson, 444 U.S. 286 (1980). 55 480 U.S. 102 (1987). 56 28 u.s.c. § 1350. 57 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (d.c. Cir. 1984) (per curiam opinion dismissing suit against plo with three different judges expressing differing views of reasons for dismissal).

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Victim Protection Act58 provides a damage action for torture committed under color of foreign law. And the Foreign Sovereign Immunity Act59 does away with sovereign immunity for suits against nation-states for commercial acts, torts committed within the U.S., and actions against designated terrorist states (Cuba, Syria, Iran, and Sudan). vi

Conclusion

This discussion began with the proposition that the Due Process clause of the U.S. Constitution applies to citizens and aliens alike. There are a few areas in which the nationality of a foreigner is necessarily relevant to the decision at hand. These occur mostly in the area of immigration, rights to government benefits, and jurisdiction over foreign nationals. In one particular area, the “war on terrorism,” the courts have been blind to the claims of citizens and aliens equally. The area that I find most troubling is that of human trafficking, in which the enforcement process is virtually non-existent for foreign nationals. This is a topic that cries out for some form of international law enforcement – if not in my lifetime, then surely within the lifetime of some of the children now being very badly mistreated.

58 Codified as a Note to 18 u.s.c. § 1350. 59 28 u.s.c. § 1603.

chapter 26

Addressing the Otherness of Hispanic Immigrants in Florida Criminal Courts George W. Maxwell iii*

Introduction

This article discusses the question posed by the International Conference for Judicial Independence and World Peace 2014 call for papers, held in Osnabruck, Germany. The question asks, “does the ethnicity or race diversity of foreign parties in the domestic criminal courts and domestic penalty systems influence the severity of punishment by law enforcement bodies?” To manage this discussion, this paper limits its view to a much narrower question, “are Mexican and Central American immigrants, particularly undocumented immigrants, treated more severely in the Florida criminal court system than other persons coming before the court?” All are equal before the law and are entitled, without any discrimination, to equal protection of the law. –Universal Declaration of Human Rights1 This article discusses the question posed by the International Conference for Judicial Independence and World Peace 2014 call for papers, “does the ethnicity or race diversity of foreign parties in the domestic criminal courts and ­domestic penalty systems influence the severity of punishment by law enforcement bodies?” To manage this discussion, this paper limits its view to * The author thanks Alexandra I. Soya, Adjunct Professor, Florida Institute of Technology, for her invaluable insight regarding languages and the role they play in the judicial system, as well as her assistance in writing this paper. In addition, the author thanks Chelsea A. Buckholtz, Student, The University of Mississippi School of Law, for her assistance in legal research and writing. This is an original work. All reasonable efforts to credit every source consulted have been made. Understanding, however, that the human mind is incredibly complex, and the author’s mind very old, he acknowledges that synthesized prior learning combined with current sources make up this body of work. 1 Universal Declaration of Human Rights, Article 7, http://www.un.org/en/documents/udhr/.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_027

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a much narrower question, “are Mexican and Central American immigrants, particularly undocumented immigrants, treated more severely in the Florida criminal court system than other persons doing before the court?” The initial question looked at whether Hispanic or Latino Others “were treated differently,” however, it was soon determined that the answer was not a simple one. While it can be said, with some certainty, that Hispanic Others are treated differently because they are indeed different, the real question becomes, “are Hispanic Others treated unfairly or punished more harshly than other law violators?” i

Part One

A Historical Origins 1 Regional Origins While it is not necessarily a crime to come into the United States without proper documentation, it does generate a law enforcement response. This response has varied dramatically over the course of the last century. One must remember that much of the southwestern United States and Florida were at one time Spanish held territories, divided only by French held Louisiana. 2 Personal Origins It can be said with conviction that there is no monolithic “American” attitude towards these persons. New Mexicans, Texans, Arizonans, southern Californians, and Floridians all hold widely varying opinions – both regionally and individually. Whether a citizen of the United States is of northern European, Scottish, German, Hungarian, African, or other descent – all go into the equation of how that particular person may view an undocumented immigrant. After considering all these factors, the author determined that the best approach consists of looking at the experiences of Mexican and Central American immigrants in the courts as well as law enforcement agencies. As will be more fully discussed later, the record keeping of the State of Florida lacks any significant data for actually determining the treatment of Hispanic Others. B Organizational Framework 1 Law Enforcement Organization As a general proposition, we begin with the belief that courts and law ­enforcement bodies in the United States strive to ensure fairness in every case- r­ egardless of ethnicity, race, or nationality of the involved parties. In Florida,

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there exists a simplified court system, more fully described in the court section, and multiple law enforcement agencies. The Florida law enforcement includes sixty-seven separate Sheriff’s Offices or Offices of Public Safety, and almost as many municipal police departments as there are incorporated towns and cities. The policing agencies also include the Florida Highway Patrol, Florida Department of Law Enforcement, Department of Agriculture and C ­ onsumer Affairs, Florida Wildlife Commission, and numerous other state law enforcement agencies with arrest powers. These agencies exercise their powers with a broad respect for the constitutional rights of citizens and foreign parties. An overview of law enforcement in Florida renders the image of a modern and enlightened approach. 2 Law Enforcement Oversight Still, the topic of fairness in the criminal courts of the United States deserves careful examination. At the present time in Florida, the most prominent group of immigrants on which the media have focused their attention are those whose home countries are north of the Panama Canal but south of the Rio Grande (norpacs). Despite the laws in place to ensure the fair treatment of norpacs, their Hispanic ethnicity does appear to influence the severity of law enforcement bodies in criminal court cases. Interestingly, law enforcement bodies tend to be less severe with Cubans for reasons explained later. This paper looks at and describes the actors in our present drama and the sets and settings in which their human play takes place. We will try to shed a little light on why these events are unfolding as they are, but the topic is so current as to be affected and shifted on an almost daily basis. While drafting this paper, the fear of transnational Ebola and renewed warfare in the Middle East overshadows the World as do the ever present horsemen of the Apocalypse. If not actually then at least metaphorically. Let us turn our focus to the immigrants and try to ensure that they receive what the United States Constitution calls, “Fundamental Fairness and Due Process.”2 ii

Part Two

A Florida 1 Economics Florida has a population of 19,552,860 persons. This means that with a current population of over 316 million people in the United States, Florida consists of over 16% of the entire U.S. population. Of these people, 23.6% are listed by the 2 U.S. Const. amend. xiv.

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United States Census Bureau as Latino or Hispanic.3 By way of comparison, Florida’s economy is roughly equivalent to that of Indonesia and larger than that of Turkey, the Netherlands, Saudi Arabia, and Switzerland. If Florida were an independent sovereign, its economy would be the seventh largest economy in the world.4 2 Hispanic Demographics It is no surprise that Florida, with a large Hispanic minority, a labor short agricultural industry, many Spanish speaking cultural areas, its largest city Miami being bilingual, and until the recent recession – a robust economy, is a popular destination for norpac immigrants. While the recent economic recession caused a voluntary repatriation by many, it is suspected that a large number have stayed and many have assimilated. To assist the reader in visualizing the presence of Hispanics in the United States, two maps and the current data sheets from the U.S. Census Bureau are included in Appendix A. B Exclusion of Certain Hispanic Others According to the United States Census Bureau (2010), the term Hispanic is used to refer to “a person of Cuban, Mexican, Puerto Rican, South or Central American (except for Brazil), or other Spanish culture or origin regardless of race.”5 Using this definition, the author reviewed cases and legislation involving Hispanic parties and found that certain groups of Hispanic people are treated more favorably than others. 1 Cubans Cubans are a uniquely protected class under the law of the United States. As a result of the Cuban revolution of 1959, the subsequent Bay of Pigs incident in 1961, and the October missile crisis of 1962, relations between the United States and the Cuban government deteriorated to such a level that World War iii was almost initiated. In accordance with the United States “open door” policy to Cuban refugees from the communist republic, Congress enacted the Cuban Adjustment Act in November 1966. This act created a special status for any alien who is a native or citizen of Cuba to obtain permanent legal residence 3 Florida Quick Facts, United States Census Bureau, http://quickfacts.census.gov/qfd/states/ 12000.html(last visited Oct 16, 2014). 4 See generally, Bureau of Economic Analysis, U.S. Dept. of Commerce, www.bea.gov (last visited Feb. 8, 2016). See also, Moving Toward Stagnation, Economist, http://www.economist. com/blogs/freeexchange/2011/12/economic-geography (last visited Oct 16, 2016). 5 Florida Quick Facts, supra note 3.

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in the United States. Further, the Attorney General retained the ability to adjust, in his discretion, such regulations as he wished so that that person could eventually gain permanent residence without leaving the United States. For practical purposes, since 1959 and 1960 Cubans entering the United States have enjoyed a special legal status not available to anyone else. This act does not cover any of the Central American republics nor citizens of the Republic of Mexico nor any other Caribbean islands. For this reason, those Others of Cuban background are excluded from the instant study. By extension, those Others of Caribbean background are excluded also. When considering mainland North and Central America, Belize (as an English speaking nation) is excluded as well. Due to limited numbers of undocumented migrants from Panama and Nicaragua, and almost no undocumented migration by Costa Rican nationals, these groups are only reviewed incidentally or collaterally with other Spanish speakers. Just as U.S. law protects Cuban nationals, several laws result in more favorable treatment of Guatemalans, El Salvadorans, and Hondurans- particularly as evidence in the recent “Children’s Invasion” of the summer of 2014. The primary law that protects Guatemalans, Salvadorans, and Hondurans is the Wilbur Wilberforce Trafficking Victims Protection Reauthorization Act.6 Though this act only protects minors, the fact that some arrive with parents effectively slows down the repatriation process (sometimes referred to as the deportation process). This, essentially, leaves the undocumented Mexican and Central American migrants as the primary target of otherness in the Florida court system. iii

Mexican and Central American Others

A Mexican Others Mexico is ethnically a very diverse nation when viewed from an informed perspective. Many rural North-American Indians are still organized, and to a significant degree governed by, Pre-Columbian traditions, languages, “laws” and culture. One can travel only ten or twenty miles in the mountainous areas of the country and find wholly unique cultures, as if you had travelled across national boundaries- if not oceans and continents. Tan skinned, blonde haired people are found in Caleta de Campos on the Pacific Coast. Pure Apaches, 6 h.r. 7311, 110th Cong. §2 (2009).

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who speak little Spanish and many of whom are armed with modern weapons, live in the Northern States of Mexico. Blonde descendants of Emperor ­Maximilian’s defeated troops live in Swiss chalet style homes in the mountains east of Mexico City. B Central American Others Much that has been said about Mexico is equally applicable to the Central American nations of Guatemala, Honduras and El Salvador. Having given the briefest of overviews about Mexico, we will now address the other countries which constitute the major portion of the recent migration “invasion” of the early 21st-century. For this paper, we have now confined ourselves to Mexico and the Central American nations contributing the most immigrants who arrive undocumented in the U.S. The countries that make up the Central American region include: Guatemala, Belize, El Salvador, Honduras, Nicaragua, Costa Rica, and Panama. By the end of the fourth century b.c., the Mayan Indians became the dominate culture of Central America. Somewhere circa 900 a.d., the Mayans abandoned their cities but continued to populate the area. Columbus claimed Central America for Spain in 1502. By 1524, the Spanish were consolidating their conquest of Central America and had established an administration center in Guatemala. By 1821, Central America with the exception of Panama had become independent of Spain. Nonetheless, many of the Mayan descendants in Central America still wear traditional costumes and speak the Mayan language or a dialect thereof. Originally part of Mexico, by 1823 the regions of Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua separated as part of a Federation that eventually, because of conflicts between them resulted in independent republics. Over the course of the next century, these countries tried several times to become united, but those efforts always ended in failure. Some success was found in international courts between the countries and other trade agreements. For many years numerous wars occurred throughout the former Spanish Empire between its former colonies. Central America was not immune from those conflicts but had achieved some economic prosperity by the 1960s. Strife, however, continued to be the order of the day with numerous insurgencies preventing the promise of this region from ever materializing. By the summer of 2014, the situation in El Salvador had plummeted to a new low. ­According to a story written by Rachel Nusbaum, a media strategist at the

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Washington Legislative Office of the American Civil Liberties Union (aclu), she could claim, with corroboration by Elizabeth Kennedy, a Fulbright ­Fellow working in El Salvador with children and youth migrants returned there from the United States and Mexico, that the level of violence is extreme. ­According to their report, only Syria and Honduras have “definitively higher homicide rates.”7 When the economic boom times of the 1990s arrived, the land of plenty to the north was seen as the only avenue for the lower classes to escape a life of miserable poverty. Today, the United States is seen by many as the only hope for a relatively safe life, in a nation with relative peace within its borders. This, of course, is an oversimplification of a much more complex and rich history. C Undocumented Immigrants Particularly Professors Ackerman and Furman, in their analysis of Hispanic male immigrant sex offenders, have written an excellent description of their conclusion as to the stigmatization of undocumented immigrants.8 Though their conclusion was reached in the context of sex offenders, their findings are applicable to the non-sex offender immigrant law violators. They state that the current national debate regarding immigration is often based upon fear of terrorism, fear of immigrants taking our jobs, and most recently fear of the spread of violence and crime. They cite the study by Walker, Spohn, and Delrone; going on to say that, “[o]ver the last few years as concerns that violence from the drug wars in Northern Mexico have increased, these fears have led to a perception about the prevalence of crime perpetrated by undocumented and documented immigrants.” That these perceptions are often not supported by evidence is one of their central concerns.9 They also go on to criticize the propaganda associated with immigration as being less than accurate. Their reference page is a good resource for the student wishing to gain an understanding of the modern debate in the United States concerning immigration.

7 Rachel Nusbaum, Armed Guards at Every Home: The View from El Salvador, aclu (Aug. 21, 2014), https://www.aclu.org/blog/human-rights-immigrants-rights/armed-guards-every -home-view-el-salvador. 8 Alissa R. Ackerman & Rich Furman, An Analysis of Hispanic Male Immigrant Sex Offenders in Florida: The Impact of National Solutions on a Transnational Problem, Estudios Fronterizos (July–December 2013), http://www.uabc.mx/iis/ref/REFvol14num28/EFVOL14NUM28-2.pdf. 9 G.E. Higgins, S.L. Gabbidon, & F. Martin, The role of race/ethnicity and race relations on public opinion related to the immigration and crime link, 38 J. Crim. Just.51 (2010).

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Hispanic Others’ Treatment in Florida Courts

A Florida Court Structure What is the system that the undocumented immigrant finds when, for many reasons, he runs afoul of a complex legal code, and comes before a judge? First, we look at what and who is the Florida Court and briefly discuss the attitudes towards Hispanics expressed by a few judges. The Florida Court system is three tiered, consisting of trial courts, five district appellate courts, and a single state supreme court. Trial courts are further divided into sixty-seven county courts of limited jurisdiction and twenty circuit courts, which are courts of general jurisdiction. The county court addresses, among other things, driving under the influence, disorderly conduct, simple batteries, small claims, small landlord tenant and misdemeanors for which criminal punishment may not exceed one year in county jail. There are sixty-seven counties in Florida, each of which has at least one county courthouse and a county court judge. The county court judge usually administers the greatest number of cases. The maximum punishment of this court is one year in jail or a fine of one thousand dollars, or both. However, due to probation, violations of probation, failure to pay costs, and fines, defendants convicted in these courts may spend much more time under direct supervision. In Florida, the commission of multiple misdemeanors of the same kind can escalate the charge into a felony with significantly greater penalties. Because compliance with the probation rules requires a good understanding of the cultural environment the Hispanic Other runs a greater risk of the being “systematized.” Many of the larger counties have more than just one courthouse, and all counties have a circuit judge assigned to them even though in some of the smaller counties the circuit judge visits only on certain days during the term. It is in the county court that most Hispanics come into contact with the criminal justice system. This is probably true of all racial and ethnic groups. This writer suspects that “systematization” leads many undocumented immigrants to their encounter with the much more serious felony jurisdiction circuit courts.10 To answer the theme question definitively there needs to be sufficient data by national origin at the very least. This data is not kept directly in Florida.11 10 11

Author’s Note: in many counties there are more circuit judges than county judges because of the greater time requirements and serious nature of the charges and punishments. Interview with court administrators and Office of the State Courts Administration, Florida.

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There are also twenty judicial circuits in the state, each of which has several circuit judges who are vested with general jurisdiction. The circuit judge sits in courtrooms located in the several county courthouses and exercises jurisdiction over all cases in controversy over a jurisdictional minimum of $15,000, all disputes involving children, real estate, most appeals from county court and felony jurisdiction up to crimes punishable by a term of years in excess of one year through life imprisonment and the Florida death penalty. The circuit court is the court of general jurisdiction and thus the senior trial court. Appeals from the circuit court for the most part go directly to one of five district courts of appeal (dca), with some limited rights of appeal from the dca’s to the Florida Supreme Court. All death penalty cases are appealed directly from the circuit to the Supreme Court. The Florida Supreme Court is composed of seven justices appointed by the Governor after nomination by the Supreme Court judicial nominating committee. The judges of the District Courts of Appeal are, likewise, appointed by the Governor. In an effort to deliver legal services to the public, the Florida Bar (an integrated bar to which all ninety thousand plus attorneys must belong) requires pro bono service or an annual financial contribution to support legal assistance to the poor. Legal aid societies exist in all urban and many suburban and rural areas. State funded offices of the Public Defender exist in all circuits in the state. They are the defense counterpart of the twenty circuit State Attorney’s Offices. All of these offices are headed by an elected constitutional officer. These elected public officials and all assistant state attorneys and public defenders must be licensed lawyers in the state and remain in good standing during their tenure in office. The Assistant State Attorneys and Assistant Public Defenders are state salaried employees, but the offices are constitutionally independent. To be licensed in Florida requires passage of the state bar exam, the multi-state bar exam, and the professional ethics exam. This exam is one of the hardest in the United States and is administered over two separate days. Although the assistant entry-level attorney positions are perceived as underpaid, they nevertheless attract a high level of qualified young attorneys who seek trial experience either for idealistic or practical reasons or both. Several years’ experience in a trial prosecutorial or defense role frequently works as a stepping stone to better paid jobs in private criminal defense firms or civil law firms. B Judicial Independence Under earlier Florida Constitutions, all judges were elected through partisan elections. Later in an attempt to limit the partisan influence, judicial elections

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were made non-partisan. In 1973 following a Constitutional Amendment to Article v, the election of the supreme court and the district courts of appeal were converted to appointments by the Governor. The appointment process begins with a Judicial Nominating Committee (jnc) selecting the top candidates from a slate of applicants. From the selected nominees, the Governor then makes the final decision. At first, this appeared to work well. The jncs are made up of a slate of attorneys and later lay people. However, as time has proven the gubernatorial influence has waxed while the “blue ribbon panel” effect has waned.12 In recent years, the judicial nomination committees have been heavily influenced by the Governor through changes to the committee appointment process that gave the Governor more influence than was envisioned when the process first began in the 1970s. For example, according to the Tampa Bay Tribune editorial of 10-15-14, “Before Jeb Bush was Governor, Florida was widely regarded as a state that smartly used jncs to shield the judicial nomination process from political influence. Each jnc would be made up of nine members: three appointed by the governor, three appointed by the Florida Bar and three who would be chosen by the six appointed members. That was too much independence for Bush, who persuaded the Legislature to change the law to let the governor appoint all nine members of each jnc panel. The only remaining element of independence was that for each commission the governor would choose four members from a list recommended by the Board of Governors of the Florida Bar.”13 The county and circuit judges are elected in non-partisan elections, but many judges sympathetic to one party or the other will retire early to ensure the vacancy is filled by gubernatorial appointment if their preferred party holds the office. Currently there are 26 jncs in Florida. These commissions screen applicants for vacancies on Florida courts and recommend candidates to the governor. A statewide nominating commission nominates for the Supreme Court. There is a commission for each of the five dcas and a separate commission for each of the 20 judicial circuits. Vacancies for the Supreme Court and the five district courts of appeal are all filled by appointment. The trial court judges are only appointed when a midterm vacancy occurs. Accordingly, most of the trial courts are elected positions. Over the course of the existence of this system the composition of the committees has gradually become more and more under the control of the governor. 12 13

See Fl Const. art. V. Editorial: Scott Puts Politics into Judiciary, Tampa Bay Times (Nov. 1, 2013), http://www.tam pabay.com/opinion/editorials/editorial-scott-puts-politics-into-judiciary/2150319.

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When first established, the Florida Bar had more influence, and there were no laypersons on the jncs. Now there is a requirement for laypeople and admonishment for the governor to reflect the diversity of the State in his appointments. This has been the source of considerable debate. Since World War ii, occasional serious threats have arisen to the independence of the Florida judiciary by demagogues, ideologues or just the occasional well -placed ignoramus. However, in the one hundred ninety-three years since Florida became a U.S. territory and began utilizing the Common Law in earnest, the courts of Florida have managed to maintain their independence in one fashion or another, although arguably to a diminished degree. C Judicial Fairness Previously we looked at the structure of the Florida courts. Now we take a look at their predisposition towards fairness. To be sure, the Florida courts aspire to fairness and impartiality. The Florida Bar website states that judges must be fair and impartial to all who come before them; judges must be free from partisan political influence; judges must rule on the basis of what is just, not just what is popular; and judges must be able to protect ordinary citizens from politicians, government, large corporations and from each other.14 The Florida Supreme Court website states that the court must be accessible, fair, effective, responsive, and accountable. Under the category “fair,” it further states that the court will respect the dignity of every person, regardless of race, class, gender or other characteristic, apply the law appropriately to the circumstances of individual cases, and include Judges and court staff to reflect the community’s diversity.15 While these lofty goals are very impressive they are what they are: self-­ promotional statements to elevate the public perception of the court system. They are only meaningful if these goals are met, in large part, in the trial court where the immigrant interfaces with the system. The question then becomes, “do we meet these goals?” While this writer believes that the immigrant defendant receives a high-­ level of due process, fairness and impartiality in the Florida criminal justice system, a definitive answer cannot be stated without reliable and accurate data. Researching the data available is beyond the resources of this writer. What can be said is that the Florida judiciary is well trained, well educated and has a substantial number of Hispanic judges. This writer believes that the 14 15

See generally Florida Bar Ass’n, www.floridabar.org (last visited Feb. 8, 2016). See generally The Sup. Ct. of Florida, www.floridasupremecourt.org (last visited Feb. 8, 2016).

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vast majority the judges in the State are strongly supportive of – and inclined to dispense – fair justice to all who come before the court. Given fairly high marks for trying, other factors come into play in determining the fairness of the Florida criminal justice system. One of the biggest reasons why this paper cannot answer the question without qualification is that the court system, the clerk of the courts, the arresting agencies, prosecutorial agencies, jail, courthouse staff, and to a significant degree, the corrections officials, have not kept good records about ethnicity. Until 1920, the United States Census Bureau, one of the best sources for reliable data, only distinguished between blacks and whites in the United States. As of October, 2014, the Brevard County Sheriff’s Office did not keep records on the ethnicity of prisoners kept in its jail beyond listing the inmates by gender and race of black or white.16 Again, in early October, in conversations with the elected Public Defender the writer was informed that the public defender’s office does not keep ethnic records. Historically, Hispanics have been categorized as white. Currently, the Census Bureau allows self-identification and probably due to the sensitive nature they probably will maintain this policy, as any other method, would be rejected by the American public. The death penalty records of the State of Florida originally only distinguished the executed prisoner as black or white.17 In recent times (since 1979) the prison authorities have expanded their reports to include Hispanic or other. Further, the Census Bureau collects data on Hispanics as including any national origin. This prevents being able to tease out whether particular defendants were Mexican, Guatemalan, Honduran, El Salvadoran or other Central American with any degree of ease. We are once again left with attempting to answer the question of fundamental fairness in the treatment of Hispanics in Florida criminal courts to anecdotal evidence from judges, court staff, prosecutors, public defenders and law-enforcement personnel or other bureaucratic organizations. One prominent retired judge, a nationally recognized expert on the death penalty, commented to this writer, “I never felt prejudiced against Mexicans or any other Hispanics, other than I was jealous that so many of them spoke two languages and I only spoke one.” This comment is typical of the way other 16 17

Telephone conversation with a Brevard County Sheriffs’ Commander who attempted to find more detailed information. See Death Row Roster and Execution List, fl Dep’t of Corrections, www.dc.state.fl.us/ activeinmates/deathrowroster.asp, http://www.dc.state.fl.us/oth/deathrow/execlist.html (last visited Oct 16, 2014).

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j­ udges expressed a lack of inherent prejudices against Hispanics. In the course of preparing this paper, this writer spoke to several self-identified Cuban American judges, Jewish judges, black judges, gay judges and Anglo judges. Only one judge ascribed a generally negative impression of norpacs. That judge, a career prosecutor, had spent many years in the criminal court both as a judge and prosecutor. His view reflected a common view of the weathered, experienced judge whose view has been focused for many years on the most negative aspects of human behavior. Despite the entrenched cynicism, he reported a fastidious observance of due process in his courtroom behavior. The view he expressed seemed to be more a fatigue from dealing with the sordid nature of crime than a bias towards any particular race or ethnicity. Another aspect of the Florida judiciary is many judges are themselves Hispanic.18 In an attempt to discern prosecutor prejudice or defender prejudice, this writer conducted an informal but significant amount of questioning both in and out of court. Perhaps, because of the “politically correct” atmosphere of the past few years or in an attempt by the lawyers to avoid the “appearance of impropriety” or adhere to the code of civility, candid observations were hard to come by. Some remarks that were clearly unguarded were made, but none that were patently virulent. Mostly, the extent to which voiced remarks expressed displeasure about Hispanic defendants was no worse than those heard on the nightly news stories about “illegal immigration” or criminal behavior in general. Reports and studies outside of Florida do report that prejudice does occur in the prosecutorial regime. 1 Why are they in Court? What crimes are they accused of? Do they receive comparable sentences to Whites? Blacks? Others? What level crimes? Misdemeanors? Felonies? Alcohol related? Drug related? Sex crimes? Are Florida’s harsh sex and drug laws applied to norpac’s disproportionately? Are they fairly treated by the media? Do media characterizations affect their treatment by law enforcement? By the Legislature? We do not have definitive answers to these questions because of a lack of record keeping segregating defendants by ethnicity. We do have historical records from which one might extrapolate ethnicity.19 There does appear to be 18

19

Interview with S. Bernstein, Chair of The Florida Conference of Circuit Judges. Various contacts and conversations with judges of Hispanic origin, especially from the Tampa and Miami Circuits. Florida Execution list, supra note 12.

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a trend toward identifying Hispanics by national origin.20 Still, we make an attempt to answer these questions through inference and reference to collateral articles and sources. 2 What are their Crimes? Anecdotally, through courthouse conversations with judges and law enforcement officers, charges against Hispanics do not seem to be markedly different from the general population. Several concerns about fairness do present because of cultural and practical differences. It is fair to say that among the poorer and thus less educated immigrants from Mexico and Central America the family is decidedly patriarchal. What is referred to as the “Machismo” may result in a female oppression that runs directly afoul of the laws and policies against domestic violence? In Florida, it is not uncommon to see persons charged with either civil or criminal domestic violence when the physical contact has been shoving or jostling. Because of the Violence Against Women Act (vawa), when the police are called to what was previously viewed as a minor disturbance, they now are constrained by the law to arrest someone. This procedure is resented in many cases by the officers themselves, but the alternative is the likelihood that they (or the court) will be publicly pilloried by activist groups or media demagoguery if not official reprimand, demotion or discharge. This well intended law has precipitated the arrests of thousands of people who would not have previously been incarcerated. Interestingly, women wind up being arrested almost as frequently as men.21 The private perception of many members of the judiciary is that norpac’s find themselves in custody in the U.S for behaviors that would not have been reported or prosecuted in their country of origin. Thus in this context, the informed, but still speculative answer, is that their lack of sophistication with the dominant culture or host country’s norms most likely results in a skewed arrest rate.

20 21

Author’s Note: Broward County keeps records of the country of birth of all persons charged with a crime. See generally, Murray A. Straus & Richard J. Gelles, Societal Change and Change in Family Violence from 1975 to 1985 As Revealed by Two National Surveys, 48 J. of Marriage & the Fam. 465 (1986), http://pubpages.unh.edu/~mas2/VB2%20Societal%20Change%20and%20 Change%20in%20fam%20viol.pdf. See also, Donald G. Dutton & Tonia Nicholls, The Gender Paradigm in Domestic Violence: Research and Theory, http//library.softgenx.com/chil dren/dv/genderparadigmindomesticviolence.pdf.

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This is also true of driving offenses. In Florida, driving without a valid driver’s license is a misdemeanor that may become a felony charge after multiple convictions. The rationale for this is that Florida has a valid interest in making the highways safe. Insurance lobbies, to be sure, participate in the formulation of these laws, as do activist organizations such as Mothers Against Drunk Drivers. It is a defense to this charge if one has a valid foreign driver’s license with some caveats and limitations. In their analysis of Hispanic male sex offenders Ackerman and Furman’s22 findings are salient here. 3 Drug Crimes No discussion of the theme topic would be complete without a review of the so called “drug war” and its impact on the Hispanic immigrant. It is not fairly debatable that the phenomenon of twenty-four hour news programs has had a long-term and deleterious effect on calm and rational discussion of serious topics in the mass media. That is not to say that tabloid journalism is a new quality in civilized society nor that the mass media was ever a “fair and balanced” organ in the body politic. The point is that it was never so influential. No one in a democratic republic seriously advocates censorship, but it would be nice if the schools of higher education inculcated some semblance of “good taste” in their graduates. But one should never think that the modern mass media and many of the “talking head stars” otherwise known as commentators are free of culpability. Much injustice has been sired by the “public’s right to know.” A side effect of our Hollywood style dissemination of the news is the pandering by elected public officials to the “Court of Public Opinion.” To be sure, it should be expected that conscientious law enforcement officials and judicial “public information officers” need to inform the public in their efforts to make the society safer. That some do it for personal fame or other gain is just human. We will leave it to the reader to make the decision as to which is which, what is and what is not. 4 Law Enforcement In Maricopa County, Arizona, the Sheriff, of Spanish descent himself, dedicated traditional law enforcement methods to a crime problem occasioned in part by a flood of undocumented immigrants, a limited budget and resources and a spreading crime wave. Old-fashioned punishment and “no nonsense” style familiar to the “Old West” translated to national and international fame for Sheriff Joe Arpaio. For or against his methods they were effective and inexpensive, obtained dramatic results, garnered favorable reviews and the good 22

An Analysis of the Hispanic Male Immigrant, supra note 3.

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people of Maricopa County cheered the sheriff. No nonsense, tough on crime policies have been a stepping stone to higher public office for centuries. It is not an approach to law enforcement peculiar to the Western United States nor even to America. Sheriff Arpaio had no higher aspirations and has been content to do his job as he believes it should be done, with the wide approval of his constituency. It is no surprise then that he has had copycats with the same or less high-minded motives. In Florida, one of the most aggressive sheriffs is Sheriff Grady Judd of Polk County. Sheriff Judd has on more than one occasion captured the national limelight. How he has accomplished this is interesting. Using an interpretation of U.S. law that narrowly defines entrapment and eliminates it as a defense if the perpetrator was predisposed to the commission of a crime (the fact that he “took the bait” is not a legal defense), Sheriff Judd has had his agents populate the internet with non-existent teenagers who lure sex predators to Florida for illicit sex. The fact that the “bait” may well be middle-aged is no defense and many a non-Floridian is in the state prison system for what can be a very long sentence. Because Polk County has a large agricultural industry, seasonal migrants have been traveling to Florida since long before the recent “invasions.” In conversations with that community the farmers and ranchers have confided that they cannot replace these hard workers locally. Their view is that the work is too hard and the social safety net too lucrative for local laborers to be enticed to suffer in the hot Florida sun for the wages that the market will support. Their views carry great weight. These are not undereducated provincials, many are graduates of the University of Florida’s Institute for Food and Agricultural ­Sciences (ifas). ifas is internationally recognized for its contributions to agricultural advancement (not just Gatorade). With the increase in drug trafficking going back to the 1960s, the Mexican and Central American agricultural worker became the natural target for cartels and drug lords, the “narcotraficantes” to exploit as couriers. Many of these “mules” were trapped into the role by addiction, coercion or threats of violence to themselves or their families. That for those foolish to resist these threats proved to be no idle promises but true predictions which bore bloody fruit. These “Merchants of Death” have showed a penchant for explosive violence only rivaled by Al Qaeda and now ISIS. Additionally, the great lure of fortunes to be had by those individual entrepreneurs willing to gamble even their lives on the “big deal” increased the number of persons working to feed the insatiable appetite of the American public for a cheap high or quick fix. Enter Sheriff Judd and Polk County in a role presaged by the Sheriffs of the Old West. For those familiar with the urban myth about the Sheriff stating after the killing of a suspect who was shot 68 times in a

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Southern (read the inference as “bigoted”) county as stating that “That’s all the bullets we had.” The truth is much less inflammatory and may speak better of Sheriff Judd. The Antiguan man, Angilo Freeland, killed by the deputies of Sheriff Judd, had the night before fled from a traffic stop. When the deputies tried to find him in the woods, he had shot and killed a police dog, DiOGi, then wounded a deputy whom he then, in cold blood, executed with two head shots and then wounded another deputy. The Sheriff was stating the truth. After two men and a dog were down, it is hard to fault the officers for making sure they weren’t next. This incident puts into context the fact that Sheriff Judd, while certainly a colorful character, is not operating in an environment of exaggerated risks. Subsequent to a civil rights inquiry, the Federal Bureau of Investigation occasioned by a complaint from the Florida Civil Rights Association and a subsequent U.S. Department of Justice (DOJ) review the doj announced that it had found no actionable wrongdoing on the part of the Polk County Sheriff’s Office. The statement said, “After careful consideration, we concluded that the evidence does not establish prosecutable violation of the federal civil rights statutes. Accordingly, we have closed our investigation.” Given the shrill outcry that accompanies any police shooting of a non-white in the South since the assassination of Reverend King in 1968, it seems Sheriff Judd may be a fair, albeit zealous law enforcer. With the foregoing in mind, Sheriff Judd has been active in prosecuting norpacs in his county.23 In one case only three of twenty-one suspects are Anglo.24 For another view of Florida policing we have the Florida Highway Patrol. This agency is about as close to a State Police that Florida possesses but as can be inferred from its title its jurisdiction is limited to the highways and roads in the state. It does not generally operate within municipalities and has always been considered an “elite” agency. Beginning in 2000 in response to accusations of racial profiling the agency on its own initiative began collecting data about the race or ethnicity of those persons stopped for one or another traffic or criminal violation.25

23

24 25

See generally, Polk County Sheriff’s Office, http://www.polksheriff.org/Pages/default.aspx (last visited Feb. 8, 2016). See also, Chart of Suspected Drug Trafficking Organizations ­(included at end). See, Stephanie Allen, Polk Deputies Bust Organized Drug Ring, Seize 40 Pounds of Meth, The Ledger (Mar. 19, 2014),http://www.theledger.com/article/20140319/news/140319059. Note: Not all traffic stops are for criminal offenses in Florida. See generally, wjhl, http:// www.wjhl.com (last visited Feb. 8, 2016); see also, http://www.theledger.com/article/ 20100331/NEWS/100339915http://www.alipac.us (link no longer available).

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For more on disparate treatment of minorities in general, information can be found at the website of numerous advocacy groups. While frequently eschewing neutrality the following articles and sources can be illuminating. On behalf of the immigrants, Hispanics, and accused wrongdoers in general there is first and foremost the American Civil Liberties Union. Other advocacy groups include the Equal Justice Initiative and the Mexican American Legal Defense and Educational Fund (MALDEF).26 Additionally, the Sentencing Project has excellent information concerning state disenfranchisement laws and the racially disparate impact they have.27 The Leadership Conference is a civil and human rights coalition which has abundant information for those wishing to explore this topic further. An online blog does first person reporting and is also a good source for information about the plight of the immigrants, particularly the treatment of norpac youths.28 Numerous scholarly articles exist analyzing the ethnocentrism of opposition to immigration in general, the economic opposition by the working classes of the host country and generational differences. As stories now begin to come in about radical Islamists (jihadists) using the southern border to infiltrate the United States, one should not expect an easing of the public resistance to liberalized immigration nor a dramatically more compassionate approach to the undocumented alien dynamic on the part of law enforcement and perhaps even the judiciary. Individual survival is after all one of the greatest motivators for the establishment of the Nation State. Balancing the natural tendency of police to do just that, some Florida laws which protect Others include Florida Statute (fs) 509.092, which prevents discrimination regarding public lodging and food establishments. There is also fs 775.085, commonly called “the hate crime statute.” fs 420.526, prohibits discrimination in housing loan programs. fs 540.01, prevents unfair discrimination in trade or commerce. FS 316.614 (9), a traffic statute, requires police agencies to adopt departmental policies prohibiting racial profiling.29 FS.760, Florida Civil Rights Act, prohibits illegal discrimination.30 26 27 28

29 30

Equal Justice Initiative,www.eji.org (last visited Feb. 8, 2016); maldef, www.maldef.org (Last visited Feb. 8, 2016). Sentencing Project, www.sentencingproject.org (last visited Feb. 8, 2016). See generally, Fusion, www.fusion.net (last visited Feb. 8, 2016). See also, Ronald Welch & Carlos Angulo, Justice on Trial: Racial Disparities in the American Criminal Justice System, Ass’n of St. Correctional Admin,http://www.asca.net/system/assets/attachments/765/ Racial_Disparities_in_the_American_Criminal_Justice_System.pdf (last visited Feb. 8, 2016). NOTE: this law does require recording the violator’s race and ethnicity. Keith Morelli, Hillsborough Advocates Work to Avert a Row Over Immigration Kids, Tampa Trib. (Oct. 14, 014), http://tbo.com/news/breaking-news/advocates-work-to-avert-row-over -immigrant-kids-20141013/.

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5 Improved Interpreter Services Although state and federal law require that non-English speakers be afforded meaningful due process, the actually availability of live interpreters is limited. Florida has a language interpreter phone “hot line” which in practice is a poor substitute for live in-court translation. To be meaningful, a translation must take into account not only language, but also the non -verbal information attendant to a court experience. Thus, it is suggested that in court live interpreters are necessary for non-English speakers to fully understand the complexity of their several court appearances leading up to and including trial and plea negotiations. From informal conversations with colleagues on the criminal bench, there seems to be a genuine concern for the rights of the defendant and a sincere attempt by the judiciary to accommodate the non-English speaker. Since 2000, in Dade County, Florida’s most populous, most “Hispanic” and probably most diverse county, there has been an administrative order requiring interpreter or services. Other counties vary as to whether they have a special administrative order, but all seem to follow the general concept.31 The Supreme Court has a procedure enabled by their rule making authority to certify or qualify these translators.32 In conversations with judges from other parts of the state, there seem to be various solutions most of which attempt to honor the general principle that no one should be tried without truly understanding of their rights and privileges under the United States and Florida Constitutions and statutes. v

Conclusion

It is tempting to make broad sweeping recommendations as is typical for the researcher who has never been on the front lines but advises the military with sage arm chair strategies. Having held both posts this writer is not so inclined. Conservatively, the Judicial Branch has already hosted at the Advanced Judicial College courses on courtroom Spanish, and the Office of State Courts Administrator (osca) has provided a free online course in the “Effective Use of Courtroom Interpreters.” For years, OSCA has provided competent judicial 31

32

Brevard County Administrative Order requiring interpreters, Fla. Cts.,http://www.flcourts18 .org/page.php?151 (last visited Feb. 8 2016); Dade County Administrative Order requiring interpreters, Fla. Cts., https://www.jud11.flcourts.org/documents/Administrative_Orders/ 1-04-38-Authorization%20to%20pay%20interpreters.pdf (last visited Feb. 8, 2016). See generally, In Re: Amendments to the Florida Rules for Certification and Regulation of Court Interpreters, Supreme Court of Florida No. SC13-304, 123 So.3d 31 (2013).

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education in diversity training and cultural and gender sensitivity. Unfortunately, due to budget cuts funding for out of state education for trial judges has been virtually eliminated. Not only does this adversely affect judicial independence, it encourages provincial thinking and eliminates the free expression of ideas amongst the national judiciary. The cuts were targeted by the Legislature which reveals a fundamental lack of understanding of the basic design of our system of government. Populism is its own reward it seems. A dedicated source of funding not controlled by the legislative process would be an excellent Constitutional tool to protect the concept of judicial independence. Free elections, Jacksonian and vulgar as they are, would be a better alternative than judicial appointments controlled by the Governor, no matter how enlightened she may be. Alternatively, a constitutionally created tribunal of electors would ensure professional competence but do nothing to avoid in the shadows deal making. Less severe penalties for minor crimes especially those in which the accused has no cultural “scienter” would soften the adverse impact on innocents who rely on the violator. Education is the primary recommendation of this writer for every flaw in the system. Whether we are speaking of education of the road deputy, border patrol agent, highway patrol officer, the State Attorney, the defense lawyer or the judge, more education is a positive idea. More cultural awareness and sensitivity training for law enforcement is called for, even though, as has been stated Florida Law enforcement is light years away from the primitive practices of fifty or sixty years ago… Though there appears to be no chance of requiring minimum cultural training requirements for legislators it would be a positive step if the Legislature required some form of basic training for newly elected Representatives and Senators beyond current practice. Practically speaking, greater education about our system of justice and cultural knowledge on the part of the law makers could be effected voluntarily by a better informed electorate (the media?) and ultimately influence by that creature most often reviled by the fourth estate, the lobbyist. In a capitalist society, it may seem paradoxical that corporations may become the new patrons of enlightenment. To paraphrase an early twentieth century President, if it is good for business it is good for America. An industrious, healthy, active, engaged, and most importantly, productive citizenry is profitable. The orderly, humane and FAIR treatment of the “Other” is not only the right thing to do, it is on the right side of history and profitable. The Florida courts aspire to, and to a substantial degree achieve, a high level of fairness and justice in the criminal system. The Florida courts have an announced commitment to ensure fairness to all persons coming before them. Human nature and nativist sentiment will more than likely last as long as the

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sense of self-preservation abides in our inner soul. But, this Anglo-American tradition that has evolved for a thousand years has a rich tradition of self-­ sacrifice and service to a higher cause. Many of those who labor in the temples of justice have a highly developed sense of fairness. Perhaps this comes from dealing with so much pathos and no little tragoidia. Perhaps it comes from having been immersed in a life of learning. In any event, though certainly ­possessing some bias this writer believes that the conclusion to be drawn about the Florida court system is that it is fundamentally fair. We draw this conclusion by a preponderance of the evidence if not beyond all doubt. The law enforcement agencies also receive fairly decent marks. Though criticized frequently, and on occasion justly, they have established a general reputation for fairness since reforms begun in the civil rights era have matured. Actual practice varies throughout the numerous State, county and local agencies but the day of the sadistic, uneducated brute stereotypical of popular literature is mostly behind us. Exceptions exist but todays’ law enforcement agencies in Florida all require a substantial amount of training prior to allowing a cadet to become a police officer. This is almost always a six month intensive police academy which is attended after at least a high school education. Many officers now have college degrees with advanced degrees sometimes required for upper management positions. It is a tough job and a dangerous one. All sixtyseven county sheriffs are popularly elected. The elected sheriffs do not have to have the educational prerequisites but most do. Many agencies are certified by national agencies and many officers have attended the Federal Bureau of Investigation school in Quantico, Virginia. The professionalism of the average police officer is greatly improved from a half century ago. But, continued education in cultural differences and more bilingual officers are needed. Regarding the prosecutors and public defenders, the frequent infusion of youthful idealism on both sides of the adversarial process ensures a vigorous prosecution of the accused and an equally vigorous defense. Though most cases resolve through a series of negotiations (plea bargaining), the availability of trial by jury as a right for both the citizen and foreign other acts to keep the system honest. Additionally the right to trial by jury prevents the state from exercising unchallenged power and the abuses that arise therefrom. Florida courts have a healthy mix of theorem and practicum, thus legislative or executive excess is still challenged and balanced by a judiciary jealous of its independence. This independence is necessary to maintain the checks and balances envisioned by the Founding Fathers. While despotic forces could overcome this long tradition, one can say with a strong measure of confidence that the Barons of Runnymede would be

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proud of how well the Florida pioneers and the successive generations have ­maintained the principles first codified in that Great Paper in the summer of 1215 a.d. The New American, whether documented or not, is the benefactor of a long history of freedom, independence, and fundamental fairness. Those who labor in the system are charged with a moral duty to preserve the liberties and rights so difficult to obtain, so dearly won, so easily lost for the benefit of all. Not as some would have, just us.

part 6 Recent Amendments to the Mt. Scopus International Standards of Judicial Independence

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chapter 27

Amendments to the Mt. Scopus Standards (Moscow Conference, Osnabrueck Conference and Bologna and Milan Conference) 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 Moscow 2014, Osnabrueck 2014 and Bologna and Milan 2015 conferences. These conferences dealt with a number of central issues and opportunities that warranted the study and deliberation of the International Project of Judicial Independence. These include: the difficulties associated with online dispute resolution; the benefits of adding a chapter in the Mt. Scopus Standards on lawyers’ contributions in protecting judicial independence, and to appoint a committee to revise the standards on Lawyers in the Montreal Declaration as a basis for the chapter; and the benefits of adopting a global judicial ethics code. We shall also begin with a brief review of the evolution of the Project of Judicial Independence and the drafting of significant international standards that members of the International Association of Judicial Independence and World Peace (jiwp) drafted. 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 and the Mt. Scopus International Standards of Judicial Independence. New Delhi Code of Minimum Standards of Judicial Independence 1982 Between 1980 and 1982, members of the International Project of Judicial Independence participated in the drafting of the Minimum Standards of Judicial Independence, in cooperation with the International Bar Association. The code was initiated in Berlin and was drafted during conferences that took place in Lisbon (1981), Jerusalem (1982) and concluded in New Delhi (1982). Judicial independence had been highlighted as an issue following numerous incidents of violation across many nations of the globe. These violations occurred in various countries, consisting of different systems of justice. This was but one of the factors necessitating a review of the conceptions and traditions of judicial independence. The diversity among the many legal systems, the differences a

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concerning judges and lawyers and even the concept of what it meant to be a judge, all facilitated a need for this review. Thus, in August of 1980, leaders of the project began working with the International Bar Association, developing a comprehensive code. After two years of intensive work the end product produced contained knowledge from the General Report, 29 national reports and 15 topical reports. Also in 1980, at the Biennial Convention in Berlin, that at the initiative of members of the project the International Bar Association began production on an international comprehensive code of minimum standards of judicial independence. The project included scholars and judges from over 30 countries representing the major legal families and systems of the world.1 The first draft of the minimum standards was delivered to the Lisbon conference (1981) for review. The draft was reviewed and subsequently revised. Based on the resolutions from the Lisbon conference and other suggestions, the draft was revised and submitted by the General Rapporteur for review and debate at the Jerusalem conference (1982). The standards approved in Jerusalem were later submitted for final approval at the nineteenth International Bar Association Biennial convention in New Delhi (1982) and approved with only slight changes.2 Montreal Universal Declaration on the Independence of the Justice System 1983 A year after adopting the New Delhi Code, members of the project took place in the Montreal Conference on the Independence of Justice. There the members took place in drafting a Universal Declaration of the Independence of Justice (1983). The World Conference on the Independence of Justice was held in June 1983 and was chaired by the then Chief Justice of Quebec Jules Deschenes. The Chief Justice was able to gather approximately 130 distinguished jurists, representing some 20 international organizations to approve a Universal Declaration on the Independence of Justice. The participants in the conference were handed a developed draft of the declaration, and divided into five commissions to discuss the five different chapters of the declaration: The International Judges; The National Judges; The Lawyers; The Jury; and The Assessors. The declaration was then approved by a plenary session of the conference. b

1 The only major legal system to abstain from taking part in the project were those from the communist-bloc countries. 2 Shimon Shetreet, Analysis of the Amendments to the Mt. Scopus International Standards of Judicial Independence, in Culture of Judicial Independence: Rule of Law and World Peace, p. 465 (ed. Shimon Shetreet) (Brill, Njihoff, 2014).

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c Mt. Scopus Standards of Judicial Independence 2008 Judicial Independence has been an important part of the Justice System for generations. Judicial Independence allows us to pursue our goals of freedom and democracy. International standards incentivize societies to strive for judicial independence. Creating recognized standards of judicial independence sends a clear statement that it is necessary to have a minimum standard of judicial independence to protect ourselves from official and unofficial laws that oppose society’s best interests. The International Association of Judicial Independence has continued its efforts to promote global standards of judicial independence. In 2008 the ­International Project on Judicial Independence met at Mt. Scopus for a conference where they approved a new set of standards of judicial independence called the Mt. Scopus Standards of Judicial Independence. The new standards were based primarily on The International Bar Association Minimum Standards of Judicial Independence first adopted in 1982 and confirmed by the International bar Association in New Delhi (1982), and The Burgh House Principles of Judicial Independence in International Law. Other texts that inspired the Mt. Scopus standards include the Tokyo Law Asia principles, the Montreal ­Universal Declaration on the Independence of Justice, the United Nations Basic principles on Judicial Independence, and the American Bar Association’s ­revision of its ethical standards for judges.3 The International Project on Judicial Independence, with the assistance of The International Association of Judicial Independence and World Peace, continue their efforts to promote judicial independence around the world. This is done by continuous work and revision on the Mt. Scopus standards as well as by publishing the Culture of Judicial Independence series. Thus far, fourteen conferences have been held at the following Universities: Hebrew University of Jerusalem (March 2007),4 Vaduz (December 2007),5 Hebrew University (March 2008),6 Jagiellonian University (November 2008),7 Cambridge University (August 2009),8 University of Utah (October 2010),9 3 Shimon Shetreet, The Mt. Scopus International Standrds of Judicial Independence: The Innovative Concepts and the Formulation of a Consensus in a Legal Culture of Diversity, Culture of Judicial Independence: Conceptual Foundations and Practical Challenges (Shimon Shetreet and Christopher Forsyth, eds., Martinus Nijhoff Publishers, 2012). 4 http://www.jiwp.org/-!ji-jerusalem-conference-2007/c1v6k. 5 http://www.jiwp.org/-!ji-vadouz-conference-2007/c1ww7. 6 http://www.jiwp.org/-!ji-conference-jerusalem-2008/cl5c. 7 http://www.jiwp.org/-!ji-conference-krakow-2008/c21e8. 8 http://www.jiwp.org/-!ji-conference-cambridge-2009/c1umr. 9 http://www.jiwp.org/-!ji-conference-utah-2010/cnn0.

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University of Vienna (May 2011),10 City University of Hong Kong (March 2012),11 University of Ghent (October 2012),12 the University of San Diego (August 2013),13 Moscow State University (May 2014),14 Osnabruck University (October 2014),15 Bologna and Milan (June 2015),16 and Kracow School of the Judiciary (January 2016).17 The conferences were held to discuss, draft and review amendments to the Mt. Scopus standards and to continue the open discussion on the topic of judicial independence. The conference participants are renowned academics and scholars from around the globe, truly making an effort to create a global standard of judicial independence. ii

Moscow Conference 2014

The issues of Online Dispute Resolution (odr) and Lawyers’ contribution in obtaining judicial independence were discussed during the Moscow Conference. Subsequent amendments to the Mt. Scopus Standards of Judicial Independence were approved. A Online Dispute Resolution The issue of Online Dispute Resolution (odr) has grown as we enter into an era consisting of ever growing amounts of online transactions. Transactions can be of the consumer and supplier nature or even handling a divorce, all done by electronic means. The problem arising from odr is the lack of a human element. When transactions are conducted between a human and computer, there is nobody on the side of the computer to objectively resolve a dispute, should one arise. It is important to demand that large powerful companies have a dispute resolution center in order to deal with disputes stemming from electronic transactions. As we strive for independence in our dispute resolution mechanisms, a separate officer should be entrusted with the authority to rule in such disputes. 10 11 12 13 14 15 16 17

http://www.jiwp.org/-!ji-conference-vienna-2011/c1uyy. http://www.jiwp.org/-!ji-conference-hong-kong-2012/cgve. http://www.jiwp.org/-!ji-conference-ghent--2012/c1x5g. http://www.jiwp.org/-!ji-conference-san-diego--2013/c1nww. http://www.jiwp.org/#!ji-conference-moscow/cobl. http://www.jiwp.org/#!osnabruck/xevvc. http://www.jiwp.org/#!bologna-milano-conference/f2eet. http://www.jiwp.org/#!krakow-conference/skh03.

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The amendment understands the difficulty of odr and wishes to ensure fair dispute resolution while maintain respect for companies and government agencies. It provides: Section 9D 9D1. Complaints Officers in Government Agencies and business Firms shall be appointed in a separate complaints department that handles digital or online disputes with consumers and shall not hold parallel functions in ordinary company departments such as accounting and finance departments. 9D2 The complaints department must be separate from other departments. This complaints department must be presided over by persons who enjoy independence from the accounting and financial officers of the company. The procedure should insure fairness. The amendment recognizes the difficulties associated with online dispute resolution (odr) and confirm that the solution is to require the appointment of complaint officers in government agencies and business firms to handle digital or online disputes with customers. These officers shall be housed in separate complaints departments and shall not hold parallel functions in other departments, such as in the accounting or finance department. Additionally, the complaints department must be separate from other agency or business departments so as to be truly independent. The amendment was left for further review at the next conference, which was to take place in Osnabruk. B The Role of Lawyers in Protecting Judicial Independence In preparation for the conference, a paper by Professor Andrew Le Sueur entitled ‘Lawyers’ Contributions to Securing Judicial Independence’ was submitted for review. Also presented at the conference were written amendments to be added as a new chapter in the Mt. Scopus Standards concerning lawyers’ contribution in promoting judicial independence. The draft of the chapter will be proposed for approval at the Osnabruck conference. iii

Osnabrück Conference 2014

The conference was held in Osnabruck in October of 2014. The conference d­ iscussions revolved around the proposed amendments to the Mt. Scopus

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Standards which had been discussed at the Moscow conference earlier that year. The topics of the discussions were: Lawyers and Bar Associations; a Global Code of Judicial Ethics; and the Impartiality of the Commission of Inquiry. The conference was an all-around success. The chapter regarding Lawyers and Bar Associations was approved, as well as the amendments to sections 9C and 24A of the Mt. Scopus Standards dealing with the Impartiality of the Commission of Inquiry. A Lawyers and Bar Associations The chapter on Lawyers and Bar Associations was discussed at the Moscow conference. It was later approved at the Osnabruck conference. The chapter is 34 sections long and addresses the issues of general principles of the legal profession; legal education and entry into the legal profession; education of the public concerning the law; rights and duties of lawyers; legal services for persons with limited means. In addition, the chapter addressed the bar association, its functions and disciplinary proceedings against a lawyer who has acted with misconduct.18 As lawyers and Bar Associations perform an important role, both as individuals and as organizations, it was deemed important to have a detailed section devoted to these issues. B 1.

Impartiality of the Commission of Inquiry Section 9C- Ensuring impartiality of chairpersons and members of commissions and committees of inquiry and other quasi-judicial institutions

The language of the amendment provides: 9C.1 All officers exercising judicial and quasi-judicial functions and investigative and auditing functions are subject to the duty of fairness and impartiality. This includes commissions of inquiry, mediation, arbitration, state auditing and internal auditing. All such officers and Members or chairpersons of commission or committee of inquiry shall maintain impartiality and demonstrate independence in conducting inquiries and in making fact-finding and recommendations. 9C.2 The general rules applicable to national judges, including sections 1-9B in case of circumstances requiring disqualification of judges, shall also apply to officers enumerated in section 9C.1 and members of commissions of inquiry and to quasi-judicial institutions. 18

For the text of the amendment see Section 9E of Mt. Scopus Standards Appendix i.

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9C.3 The general rules applicable to, including sections 1-9B judges in case of circumstances requiring disqualification of judges shall also apply to internal auditors and state auditors. The goal of the amendment is derived from the fundamental right of every person to be heard by an independent and impartial judiciary. One of the fundamental values of the justice system is the confidence of the people in the courts. Without an independent and impartial judiciary, the confidence of the people would be tried. While it has been recognized that courts must be independent and impartial,19 this is not the case in other types of dispute resolution. The amendment aims to change this and to require that any jurist adjudicating in any type of dispute resolution, by the inherent rights of natural justice, to adhere to their duty to disqualify or recuse in any case of questionable impartiality. The amendment includes commissions of inquiry, mediation, arbitration, state auditing and internal auditing. The requirement for independence and impartiality has been noted in several court cases.20 2.

Article 24A- Ensuring impartiality of chairperson and members of commission of inquiry and other quasi-judicial institutions

This amendment differs from the previous proposed amendment as it pertains particularly to international officers exercising their judicial and quasi-judicial functions within the various forms of auditing and investigative functions. The language states: 24A.1 All international officers exercising judicial and quasi judicial functions and investigative and auditing functions are subject to the duty of fairness and impartiality. This includes international commissions of inquiry, mediation, arbitration, auditing officers and internal auditing officers of international organizations. Such said officers and Members or chairmen of international commission or committee of inquiry shall maintain impartiality and demonstrate independence in conducting inquiries and in making fact-finding and recommendations.

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The Human Rights Committee said in the case of Gonzalez Del Rio v. Peru, Communication No. 263/1987, 28 October 1992, [5.2]: “the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception.” English v. Emery Reimbold & Strick Ltd. [2002] ewca Civ 605; hcj 7805/00 Aloni v. Jerusalem Municipality Auditor (2003) IsrSC 57(4) 577.

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24A.2 The general rules applicable to international judges, including sections 10–24 in case of circumstances requiring disqualification of judges, shall also apply to said officers and commissions and committees of inquiry and to quasi-judicial or investigative or auditing institutions. 24A.3 The general rules applicable to international judges, including sections 10–24 in case of circumstances requiring disqualification of judges shall also apply to auditing officers and internal auditing officers of international organizations. Like section 9C, the amendment aims to ensure impartiality of chairpersons and members of commission. It differs in that it pertains to chairpersons and members of international commissions. Impartiality is defined in the Montreal Universal Declaration on the Independence of Justice (1983) in section 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 understanding of the law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.” Since the judiciary can be defined as the organ of government which provides the primary function of adjudication, including the duties of natural judges, we must also include the duties: the right to be heard by an impartial panel of judges and within this, judges who may have conflicts and cannot remain impartial must recuse themselves from the procedure. Judges must recuse themselves from any type of adjudication: arbitration, conciliating, mediation, auditing officers and internal auditing officers of international organizations, procedures before commissions and committees of inquiry, and online complaints procedures. Impartiality can be defined as being free from a commitment to a preconceived notion, as stated by Thomas Franck and H. Scott Fairly: “impartiality… certainly implies that persons conducting an investigation should be, and should be seen to be, free of commitment to a preconceived outcome.”21 The benefit of judicial independence and impartiality in international adjudication functions has been noted by Prof. Yuval Shany: “judicial independence, symbolizing procedural and connoting a professional and unbiased decision-making process, increases the legitimacy-pull of the legal norms

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Thomas Franck and H. Scott Fairly, Procedural Due Process in Human Rights Fact-Finding by International Agencies, The ajil, Vol. 74, No. 2 (Apr. 1980) pp. 308.

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that international courts apply, and strengthens the image of institutions they monitor.”22 Furthermore, the principles of judicial independence and impartiality are seen as customary principles of international law, as seen in article 6(1) of the echr, this must be interpreted as requiring judicial independence and impartiality in all forms of judicial bodies with an international aspect.23 Pursuant to these reasons, the project saw it fit to amend the Mt. Scopus Standards with the provisions above. By doing so, we enhance the international judicial independence and impartiality by ensuring that the chairpersons and the members of international commissions of inquiry, as well as other judicial functionaries maintain their impartiality. C Global Code of Judicial Ethics It was proposed by Prof. Marcel Storme in both Ghent and San Diego to begin the process of creating a global code for judicial ethics dealing both with the conduct of judges on the bench as well as conduct of judges outside their official duties. At the Osnabruck conference it was decided to prepare a draft that would be reviewed and approved at the next conference, to take place at Bologna and Milan. iv

Bologna and Milan Conference 2015

The key events that took place at the Bologna and Milan Conference were the approval of amendments to the Mt. Scopus International Standards found in Sections 5.8 and 5.9, and the approval of the Global Code of Judicial Ethics. The first part of the Conference took place in Bologna, from June 4–6, and included presentations on the topics of the Globalized Culture of Judicial Independence; Foreign Cases in National Courts, American Perspectives, European and South American Experiences, and Views from Additional Perspectives; as well as a discussion on the Amendments of Mt. Scopus International Standards

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Yuval Shany, Judicial Independenceas an Indicator of International Court Effectiveness: A Goal Based Approach in Culture of Judicial Independence (Shimon Shetreet and Christopher Forsyth, eds., Martinus Nijhoff Publishers, 2012), supra note 3, p. 251. James Crawford and Joe McIntyre, The Independence and Impartiality of the ‘International Judiciary’, in Culture of Judicial Independence (Shimon Shetreet and Christopher Forsyth ed.), supra note 3, p. 189.

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of Judicial Independence and a debate on the Global Code of J­ udicial Ethics, discussed in the Moscow Conference in 2014, and previously in Ghent in 2012. The second part of the conference convened in Milan, on the 6th of June. There was another discussion on the Amendments to the Mt. Scopus International Standards of Judicial Independence, as well as a debate on the Global Code of Judicial Ethics. The Global Code of Judicial Ethics was put before the conference and received approval. Amendments to the Mt. Scopus International Standards: Sections 5.8 & 5.9 The Mt. Scopus Standards were amended by adding sections 5.8, 5.9 as follows: 1

8.

Every jurisdiction should establish citizens’ complaints procedure to allow citizens to submit complaints against misconduct or improper conduct of judges. The panel of the review body of the complaints must ­include lay-people who are not judges or former judges; they shall be the majority of the panel. 9. To assist in the implementation and interpretation of the code it is strongly recommended that each jurisdiction shall establish advisory committee on ethics which shall receive enquiries from judges and other professional authorities regarding questions of ethics and conduct. 2 Bologna Milano Global Code of Judicial Ethics At the International Conference of Judicial Independence in Ghent 2012 and in San Diego 2013, it was resolved, at the suggestion of Professor Marcel Storme, to embark upon a project to develop a global judicial ethics code. It is organized in two parts. One part deals with conduct on the bench and part two is concerned with conduct off the bench, i.e., the rules governing judicial conduct outside of official duties. For further analysis of the Global Code of Judicial Ethics see chapter 28 and see the Appendix at the end of the book for the full text of the Code.

Appendix A

Proposals for Amendments to the Mt. Scopus Standards 1 Online Dispute Resolution (odr) 1 The Challenge of Online Justice Online Dispute Resolution (odr) presents inherent difficulties because on one end is a client or customer, and on the other end, an automatic machine. It

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is important to demand every large, powerful company that has a dispute resolution center to handle disputes between the company and client(s) through a consumer justice officer who will have the authority to rule in such disputes. Furthermore, this justice officer should not be engaged with ordinary tasks of the corporation at the same time. We must meet the challenge of the emerging and increasing recourse to online justice practices and procedures whereby consumers are compelled to work out disputes and arguments against major companies online or in digital procedures. The digital procedures of handling consumer complaints are conducted by call centers which occasionally are not even in the jurisdiction where the dispute arose, but are conducted by out-of-jurisdiction outsourced call centers. In addition to this type of online dispute handling, there is an increasing recourse to online justice in divorce where uncontested divorce is completed totally by internet communication with the relevant court or state agency. When in such a procedure, impartiality and fairness are not maintained, the outcome of some very important issues can be affected, including the distribution of the marital estate, co-parenting plans, and other important issues. 2 The Solution The solution is to require separate complaints officers to handle these types of issues. The complaints officers must be separate in the sense that the ordinary company departments, such as the accounting and finance departments, must be separate from the department that handles disputes. For this goal to be attained, this second department must also be presided over by persons who enjoy independence from the accounting and financial officers of the company. 3 Proposed Amendment to Mt. Scopus: ONLINE JUSTICE Section 9B: Complaints Officers in Government Agencies and business Firms shall be appointed in separate complaints department that handles digital or online disputes with consumers and shall not hold parallel functions in ordinary company departments such as accounting and finance departments. The complaints department must be separate from other departments. This complaints department must be presided over by persons who enjoy independence from the accounting and financial officers of the company. The procedure should ensure fairness.

chapter 28

Towards a Global Code of Judicial Ethics Shimon Shetreet During the conferences of the International Association of Judicial Independence and World Peace at the University of Ghent in October 2012, and at the University of San Diego in September 2013, it was resolved at the proposal of Prof. Marcel Storme to embark upon a project to develop a global code of ­judicial ethics. It should deal with two major parts. One part will deal with conduct on the bench and the other on the conduct off the bench, i.e., the rules governing conduct outside of official judicial duties. This code was discussed at the Moscow conference and was approved in the conference of the jiwp association at the University of Bologna and Bocconi University of Milan and approved in that conference. The code is contained in Appendix 2 in this volume and it should serve as a guideline for judicial conduct on a global basis. In this chapter, we analyse the code and the development of the trend of shifting from oral traditions to written code of conducts for judges. This shift is manifested in many common law countries. i

The Shift from Oral Traditions to Written Codes of Judicial Conduct

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 1 Cannons of Ethics, a.b.a.(1924), www.americanbar.org/content/dam/aba/migrated/cpr/ pic/1924_canons.authcheckdam.pdf. 2 Id. 3 See Guide to Judiciary Policy (1973), www.uscourts.gov/Viewer.aspx?doc=/uscourts/Rules AndPolicies/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 © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_029

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codes for judicial conduct in various American states such as California and Texas.4 In Canada, judges adopted the Principles of Judicial Ethics in 1998.5 While in Australia, the judiciary adopted a Code of Judicial Conduct in 2002.6 England has adopted two codes of judicial conduct, and the Guide to Judicial Conduct adopted in 2008 by the Judges’ Council of England and Wales, also applies to the English judiciary.7 Barely a year later, in 2009, the United Kingdom’s (“uk”) Supreme Court adopted a new Guide to Judicial Conduct.8 In Israel, a code of judicial ethics was adopted by Chief Justice Shamgar in 1993. Israel is the only country in the common law world to have declared its code of judicial ethics to not be legally binding as they were not issued by virtue of an express authority. Thus, judges had discretion to decide how to conduct themselves regarding disqualification, such as, on account of a very close friendship with a lawyer or party in a matter.9 In just such a case, the lawyer joined the legal team only at the appeal stage. It took another 14 years, until 2007,10 before a code of judicial ethics was issued under an express authority.

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Compliance section, 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 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. See California Code of Judicial Ethics (Aug. 19, 2015), www.courts.ca.gov/documents/ca _code_judicial_ethics.pdf; see also Texas Code of Judicial Conduct (1995), www.legal ethicstexas.com/Ethics-Resources/Rules/Texas-Code-of-Judicial-Conduct.aspx. Canadian Judicial Council, Ethical Principles for Judges(1998), www.cjc-ccm.gc.ca/cmslib/ general/news_pub_judicialconduct_Principles_en.pdf. Council of Chief Justices of Australia, Guide to Judicial Conduct (2002), www.aija.org.au/ online/GuidetoJudicialConduct.pdf. For the practice in Australia, see Mr Justice Thomas’ study,, Judicial Ethics in Australia (2nd ed., 1997). See Guide to Judicial Conduct (for General Courts), https://www.judiciary.gov.uk/about-the -judiciary/the-judiciary-the-government-and-the-constitution/how-the-judiciary-is -governed/guide-to-judicial-conduct/ See Guide to Judicial Conduct (uk Supreme Court) (2009), https://www.supremecourt .uk/docs/guide-to-judicial_conduct.pdf. hcj 1622/00 Yoav Yitzhak v. Aharon Barak President of the Supreme Court 54(2) P D 54. The Judicial Ethical Rules are drafted by the President of the Supreme Court in consultation with the Minister of justice and are approved by the Law and Justice Committee of the Knesset, The Israeli parliament.

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The Israeli Parliament reversed the judicial ruling on the specific issue providing that a judge must not sit in a case where there is a special relation with a lawyer representing a party. Later it provided for an express authority to issue judicial ethical rules and such were issued under the newly enacted statutory power in 2007. About the same time, legal controversy arose in India concerning the duty to disclose to the public certain information under the freedom of information rules of the declarations of assets submitted by judges of the Supreme Court on a fiduciary and voluntary basis by virtue of a resolution of the judges.11 The shift from unwritten ethical rules to a written code prevails also in the regulation of conduct for officers of other branches of government, such as ministers and members of the legislature.12 Regarding teaching by judges, after a long debate the international association of judicial independence at the conferences held in Italy in June 2015, resolved that judges are permitted to hold lectures, and teach in higher learning institutions. While it is possible to allow a judge to engage in legal lectures, remuneration for teaching is subjected to two standards. Firstly, that the level of remuneration shall not exceed the level practised in that institution for similar work; and secondly, that the payment received by the judge shall not exceed the equivalent of maximum 25% of his official salary. Both conditions must be met. In addition, the acceptance by a judge of delivering a single lecture or a teaching position in a higher educational institution is subject to a grant of permission by a proper judicial authority. Since ancient times, judges have enjoyed a unique status in the community. The fundamental assumption is that the judiciary as a collective body, and each judge individually, is independent in adjudicative proceedings and in their decisions, and that the judicial branch in general, is an autonomous branch, decent and fair in its conduct, with the ability and skills to interpret and apply the law properly. Naturally, judges hold their appointments in trust, for the benefit of society at large. They act as trustees, who have no self-interest, but all they do, they do as the public’s agents.

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cpio (Central Public Information Officer) Supreme Court v. Subhash Chandra Agrawal clxii Delhi Law Times 135 (2009) Per Judge S.Ravindra Baht. See Ministerial Code, u.k. Cabinet Office (October 2015), 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.

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A precondition to a judge’s ability to act as a judge, is the community’s confidence in the judicial branch, its recognition of the judicial branch’s exclusive authority to adjudicate, and its acceptance of judicial rulings. This status of the judicial branch and of its members, the judges – a status of autonomy, ­independence, and benefit from the public confidence – requires, almost ­inherently, that judges uphold especially high ethical standards. It follows that it is necessary to create unique rules of conduct obliging the individual judges in their conduct and their ways – on the bench and off the bench – in order to preserve the special status of the judge and the judicial branch as a whole. Thus it always has been. As Jethro advised Moses in the Bible regarding the way to choose judges: “You should … look for able men among all the people, men who fear God, men of truth, who are not avaricious…” (Exodus 19:21). The emphasis on the personal good character of the judge remains to this day a central requirement for judicial appointment. Indeed, a judge is a person – first and foremost a person – however, by agreeing to hoist the burden of a judge upon his shoulders, he has obliged himself with the duties and burdens of a member of the judicial branch. In the past, rules for judicial conduct were as the oral traditions. The law, morality, logic, common sense, tradition and life experience were what guided judges’ conduct. As the days and years passed, individual and community life became increasingly complex, and even the judicial system grew, expanding and absorbing many members. A need thus arose to put the oral traditions into writing and create a written code of conduct for judges. Indeed, in many countries codes for judges’ conduct have been compiled. Thus was also the case in Israel, when in 1993, the President of the Supreme Court, Meir Shamgar, published The Judicial Code of Ethics which was prepared on the basis of a report by a committee chaired by the former President of the Supreme Court, Moshe Landau. The purpose of the Code of Ethics for Judges is to guide the conduct of judges of Israel along their path, and to serve them as an aid, by which they can be assisted and from which they can learn. The code includes rules of various types: fundamental rules which stem from the judge’s status, and express fundamental values, which are the basis for judicature; rules regarding the act of adjudication itself; rules regarding the personal conduct of judges; and specific norms dealing with practical issues that arise in daily life. Together, these norms constitute a wide codification in which judges – both young judges in need of guidance at the start of their path, and senior judges in need of solutions to specific issues – can, and should seek assistance. A judge who runs into a dilemma of whether to do or refrain from doing can refer to the code and find

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solutions in it to many of the questions which judges are confronted with and which they struggle on a routine basis. For example: concerning extrajudicial activity, public activity, contact with the media, and more. Last, the Code of Ethics for Judges does not take on a life of its own, and is not detached from its surroundings. The law, morality, logic, common sense, tradition and life experience, which have guided judges in the past, will continue to guide us in the future as well. For example, a judge should take the decisions of the Ombudsman of the Israeli Judiciary, pursuant to the Ombudsman of the Israeli Judiciary Law, 5762-200213 into account in fulfilling his role. Furthermore, the rules in the code will be interpreted not solely by their language, but by the spirit moving within them. Further yet, operating beside the written rules, and in their framework, is the Judicial Ethics Committee; and without derogating from the authority of the President of the Supreme Court on ethical and other issues, the Committee’s role is to discuss, recommend and decide on issues of judicial ethics. A judge who runs into an ethical problem which is not clearly answered in the code should turn to the committee, or the President of the Supreme Court, and request an answer and guidance. ii

The Binding Force of National Codes of Judicial Ethics

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 binding. 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)14 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 existing standards of judicial conduct.15 13 14 15

Sefer HaChukim, 590. Shetreet & Turenne, Judges on Trial: Independence and Accountability of the English Judiciary (2nd ed. 2013). 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

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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 judicial oath.16 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 1931.17 In the end, the Judges prevailed and the cuts were not applied to the judicial branch. There has been a shift from oral traditions to written codes of judicial ethics. One can make a good argument that the rules embodied in the codes are actually an expression of the pre-existing norms and therefore, 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. 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 conduct which were previously well known to a small, tight knit

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S. Shetreet, Standards of Conduct of International Judges: Outside Activities, 2 The Law and Practice of International Courts and Tribunals 127 (2003). 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. See Shimon Shetreet, Judges on Trial: A Study of the Appointment and Accountability of the English Judiciary 34–36 (1976).

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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.18 Particularly, there is a need to clarify the correct resolution of the balance between conflicting schools of thought on the proper judicial conduct in certain situations. The need to strike the correct balance between proper judicial conduct and necessary involvement in community experience can be seen in Australia’s guide to judicial conduct. This need was met by drafting written and detailed codes of conduct. The standards reflect changes as suggested by the Preface of cj Murray Gleeson, Chief Justice of Australia, to the Guide of Judicial Conduct.19 The Australian Chief Justices decided that it was time to provide members of the judiciary with some practical guidance about the conduct expected of them as holders of judicial office, and that such guidance should reflect the changes that have occurred in the community standards over the years. The need for a written code of ethics is also called for due to the changes in the standards that have taken place over a span of decades. For example, it was formerly acceptable for a son to appear as a barrister before his father acting as a judge. Today, this is clearly unacceptable, and even unthinkable.20 In shaping standards, one should mention the impact of the ECtHR ­jurisprudence, referred to in the Guide to Judicial Conduct.21 iv

Enforcement of Judicial Ethics

In England, the Constitutional Reform Act of 2005 transferred certain d­ isciplinary powers over judges from the Lord Chancellor to the Lord Chief

18 19 20

21

For the need for written standards see paragraph 1.2, Judges’ Council Guide to Judicial Conduct. (England). Chapter 1, page 1. cj Forward Guide to Judicial Conduct, page 1. 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. See, e.g., 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 C ­ onceptual Challenges, 10 Chicago J. of Int’l L. 275 (2009).

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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,22 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. v

From National Codes to a Global Code of Judicial Ethics

Parallel to the development of national codes of judicial ethics, it is very ­important that a global code of judicial ethics should be adopted. The text of the Global Code of Judicial Ethics is based on and adopted from standards contained in the Mt. Scopus International Standards of Judicial Independence 2008, The New Delhi Code of Minimum Standards of Judicial independence 1982, the Montreal Universal Declaration of The Independence of Justice 1983, The Bangalore Principles of Judicial Conduct November 2002, the ­United ­Nations Basic Principles of Independence of the Judiciary, 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 independence, efficiency and role of judges by the Council of ­Europe 1998; and the American Bar Association’s revision of its ethical standards for judges. The Draft of the Global Code is also based on the Code of Judicial conduct for the United States Judges 1973, California Canon of Ethics 2003, Canadian Judicial Council, Ethical Principles for Judges (1998),23 Council of Chief Justices of Australia Guide to Judicial Conduct (2002),24 the Guide to ­Judicial Conduct (for General Courts),25 and the Guide to Judicial Conduct 2009 (uk Supreme Court).26 22 23 24 25 26

See Yoav Yizthak caseHCJ 1622/00; Yitzhak v President Barak 54 (2) P D 54; see Shetreet, The Status of Judicial Code of Ethics in Medina (Fassberg & Weisman eds., 2013). www.cjc-ccm.gc.ca/cmskib/general/news_pub_judicialconduct_Principles_en.pdf. www.aija.org.au/online/GuidetoJudicialConduct.pdf. For the practice in Australia, see Mr Justice Thomas’ study, Judicial Ethics in Australia (2nd ed., 1997). www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/guide-judicial-conduct -aug2011.pdf. hcj 1622/00 Yoav Yitzhak v. Aharon Barak President of the Supreme Court 54(2) P D 54.

part 7 Text of the International Standards on Judicial Independence

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Mt. Scopus International Standards of Judicial Independence Consolidated Version International Project of Judicial Independence of the International Association of Judicial Independence and World Peace Mount Scopus International Standards of Judicial Independence Approved March 19, 2008 Consolidated 2015



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 independence, 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

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_030

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revision is important to enable the judiciary to play a role in the adequate protection of human rights and in the operation of an e­ fficient and fair market economy with a human face in the era of globalisation. The standards give due consideration particularly to the fact that each jurisdiction and legal tradition has its own characteristics that must be ­recognised. It is also recognized that in the international judiciary each court or tribunal has its unique features and functions and that in certain instances judges serve on a part-time basis or as ad hoc or ad litem judges.

A

National Judges

1

The Significanceof 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. To resolve disputes and to administer the law impartially between persons and between persons and public authorities; 1.2.2. To promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and 1.2.3. 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 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.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.

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1.4

1.4.1

1.4.2 1.4.3 1.4.4 1.4.5

1.4.6

2.

383

Building and Maintaining Culture of Judicial Independence6 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 government and is a necessary foundation for world peace, orderly world trade, ­globalised markets and beneficial international investments. The culture of judicial independence is created on five important and essential aspects: creating institutional structure, establishing constitutional infrastructures, introducing legislative provisions and constitutional safeguards, creating adjudicative arrangements and jurisprudence, and maintaining ethical traditions and code of judicial conduct. The institutional 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 as outlined in this standards. The legislative provisions offer a detailed regulation of the basic constitutional principles of judicial independence and impartiality. 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. The ethical traditions and code of judicial conduct cover the judge’s official and non-official spheres of activities, and shield the judge’s substantive independence from dependencies, associations, and even less intensive involvements which might cast doubts on judicial neutrality.

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 Artcle 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 individual 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:

384

2.3. 2.4. 2.5. 2.6.

2.7. 2.8. 2.9. 2.10. 2.11. 2.12. 2.13. 2.14.



9 10 11

appendix i 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. The Judiciary as a whole shall10 enjoy collective independence and autonomy vis-à-vis the Executive. Judicial appointments and promotions by the Executive are not inconsistent with judicial independence as long as they are in accordance with Principles 4. No executive decree shall reverse specific court decisions, or change the composition of the court in order to affect its decision-making.11 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. The power to discipline or remove a judge must be vested in an institution which is independent of the Executive. The power of removal of a judge shall preferably be vested in a judicial tribunal. The Executive shall not have control over judicial functions. Rules of procedure and practice shall be made by legislation or by the Judiciary in cooperation with the legal profession, subject to parliamentary approval. 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. Judicial matters are exclusively within the responsibility of the Judiciary, both in central judicial administration and in court level judicial administration. The central responsibility for judicial administration shall preferably be vested in the Judiciary or jointly in the Judiciary and the Executive. 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 principle of judicial independence.

Shetreet, Judicial Independence: New Conceptual Dimensions and Contemporary ­ hallenges, in Shetreet and Descenes Judicial Independence: The Contemporary Debate C at 635 (1985). To clarify that these important conditions must be legally entrenched. Adds mandatory language. Montréal Declaration Section 2.08.

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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, welltrained 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 predetermined 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 ­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. 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 13

14 15 16

Montréal Declaration Section 2.13. See also Shetreet, Judicial Independence: The Contemporary Debate, at 401. 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) nonpolitical 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). Montréal Declaration Section 2.11. Exact wording of the Montréal Declaration, Section 2.11. un Basic Principles.

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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 judicial 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.

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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 ordinary 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 ­recommendation 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 therefore 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 21 22

23 24

To provide for situations such as those that occurred in Ontario when the entire court structure was reorganized. For a discussion of this issue, see Shetreet, Judicial Independence: The Contemporary Debate, at 616. 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). Montréal Declaration. 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

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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 ­expeditiously and fairly30 and shall ensure fairness to the judge including ­adequate opportunity for hearing. retirement age from 65 to 62 years with immediate effect. This resulted in the 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. See also 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 from being lodged against judges as a backdoor method of interfering with their independence. 30 un Basic Principles.

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5.2. With the exception of proceedings before the Legislature,31 the procedure for 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 established 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 institution 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. 5.8. Every jurisdiction should establish citizens’ complaints procedure to allow ­citizens to submit complaints against misconduct or improper conduct of judges. The panel of the review body of the complaints must include lay-people who are not judges or former judges; they shall be the majority of the panel.37 5.9. To assist in the implementation and interpretation of the code it is strongly ­recommended that each jurisdiction shall establish advisory committee on ethics which shall receive enquiries from judges and other professional authorities regarding questions of ethics and conduct.38 31 Montréal Declaration Section 2.36. 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 This amendment was added in the Bologna and Milan conference, 2015. 38 This amendment was added in the Bologna and Milan conference, 2015.

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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 restraint in criticism of ­judicial decisions.39 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 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 outcome 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.40

7

Standards of Conduct41

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,42 that can affect the exercise of judicial functions 39

40 41

42

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). Bangalore Principles 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. aba Model Code of Judicial Conduct (February 2007), Canon 4, Article D(2).

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7.5. 7.6. 7.7. 7.8.

7.9.

391

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,43 or that judge’s teaching at a university or a college. 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. Judges may be organized in associations designed for judges, for furthering their rights and interests as judges. Judges may take appropriate action to protect their judicial independence.44 A judge shall disqualify himself or herself from participating in any proceedings in 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. 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.45 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.46 7.11. Judges shall discourage ex parte communications from parties and except as ­provided by the rules of the court such communications shall be disclosed to the court and to the other party.

43 44 45 46

aba Model Code of Judicial Conduct (February 2007), Canon 4, Article D(2) discusses family. This is how the section appears in the Montréal Declaration, Section 2.09. Bangalore Principles. Recommendation No.R(94)12. of the committee of Ministers of the Council of Europe to Memner States.

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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.47

8

Securing Impartiality and Independence48

8.1. A judge49 shall enjoy immunity from legal actions in the exercise of his official functions.50 8.2. A judge shall not sit in a case where there is a reasonable suspicion of bias or potential bias.51 8.3. A judge shall avoid any course of conduct which might give rise to an appearance 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, threats52 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.53

47 48 49 50

51

52 53

This Article 7.12 was added as an Amendment in Vienna in 2011. See Cyrus Das and K. Chandra, Editors, Judges and Judicial Accountability, Universal Law Publishing Company Ltd., Delhi. This does not exclude the possibility that the state may be liable for the gross negligence of a judicial officer. 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 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). “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 2 c.c.c. (3d) 417, at 423 (1983). Including physical threats to injure or to kill. Recommendation No.R(94)12 of the committee of Ministers of the Council of Europe to Memner States.

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393

The Internal Independence of the Judiciary

9.1 In the decision-making process, a judge must be independent vis-à-vis his ­judicial 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 ­judgments freely.54

9A

Administrative Adjudicators55

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. 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 ­general principles in Section 4.4 and Section 4.5. 9A.4. Administrative adjudicators may be appointed for probationary periods provided 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 program 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 administrative adjudicators. 54 55

Montréal Declaration Section 2.03. This Article 9A was added as an Amrndment in Vienna in 2011.

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9A.10. Administrative adjudicators shall be subject to evaluation according to objective criteria that are related to promoting uniform decisional standards.

9B

Public Iquiries by Judges56

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. 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.

9C

Ensuring impartiality of chairpersons and members of commissions and committees of inquiry and other quasi-judicial institutions.57

9C.1. All officers exercising judicial and quasi-judicial functions and investigative and auditing functions are subject to the duty of fairness and impartiality. This includes commissions of inquiry, mediation, arbitration, state auditing and internal auditing. All such officers and Members or chairpersons of ­commission or committee of inquiry shall maintain impartiality and demonstrate independence in conducting inquiries and in making fact-finding and recommendations.

56 57

This Article 9B was added as an Amendment in Ghent in 2012. This section was added in the Osnabruck Conference, 2014.

Mt. Scopus Standards

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9C.2. The general rules applicable to national judges, including Sections 1-9B in case of circumstances requiring disqualification of judges, shall also apply to officers enumerated in Section 9C.1 and members of commissions of inquiry and to quasi-judicial institutions. 9C.3. The general rules applicable to, including Sections 1-9B judges in case of circumstances requiring disqualification of judges shall also apply to internal auditors and state auditors.

9D

Consumer Complaints Officers

9D.1. Complaints Officers in Government Agencies and business firms shall be appointed in a separate complaints department that handles digital or online disputes with consumers and shall not hold parallel functions in ordinary company departments such as accounting and finance departments. 9D.2. The complaints department must be separate from other departments. This complaints department must be presided over by persons who enjoy independence from the accounting and financial officers of the company. The procedure should insure fairness.

9E Lawyers Definitions 9E.1. In this section: (a) “lawyer” means a person qualified and authorized to practice before the courts, or 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

9E.2. The legal profession is one of the institutions referred to in the preamble to this declaration. Its independence constitutes an essential guarantee for the promotion and protection of human rights. 9E.3. 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. 9E.4. All persons shall have effective access to legal services provided by an independent lawyer, to protect and establish their economic, social and cultural, as well as civil and political rights.

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Legal Education and Entry into the Legal Profession

9E.5. 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. 9E.6. 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. 9E.7. Programmes of legal education shall have regard to the social responsibilities of the lawyer, including cooperation in providing legal services to persons of limited means and the promotion and defence of economic, social and cultural rights in the process of development. 9E.8. 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 internationally recognized civil or political rights.



Education of the Public Concerning the Law

9E.9. 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

9E.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. The lawyer must also advise the client on both the legal and ethical consequences of proposed actions, while asking questions about future actions that are implicit in what the client has disclosed. 9E.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 established rules, standards and ethics of his profession without any inhibition or pressure from the authorities or the public.

Mt. Scopus Standards

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The lawyer shall (1) inform the client when proposed action would violate either legal or ethical standards, and (2) raise questions that are implied by proposed actions. 9E.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. 9E.13. No lawyer shall suffer or be threatened with penal, civil, administrative, economic or other sanctions by reason of his having advised or represented any client or client’s cause. 9E.14. No court or administrative authority shall refuse to recognize the right of a lawyer to appear before it for his client. 9E.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 participation of a judge in a particular case, or to the conduct of a trial or hearing. 9E.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. 9E.17. Save as provided in these principles, a lawyer shall enjoy civil and penal immunity 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 administrative authority. 9E.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. 9E.19. Lawyers shall have all such other facilities and privileges as are necessary to fulfill their professional responsibilities effectively, including: (a) absolute confidentiality 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. 9E.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 matters concerning the law and the administration of justice, (b) join freely local, national and international organizations, (c) propose and recommend well-considered law reforms in the public interest and inform the public about

398

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such matters, and (d) take full and active part in the political, social and cultural life of their country. 9E.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 persons with limited means

9E.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. 9E.23. Governments shall be responsible for providing sufficient funding for legal service programmes for persons of limited means. 9E.24. Lawyers engaged in legal service programmes and organizations, which are ­financed wholly or in part, from public funds, shall receive adequate remuneration and enjoy full guarantees of their professional independence in parti­cular by: – the direction of such programmes or organizations being entrusted to an independent board, composed mainly or entirely of members of the profession, with full control over its policies, budget and staff; – recognition that, in serving the cause of justice, the lawyers primary duty is towards his client; whom he must advise and represent in conformity with his professional conscience and judgment.



The Bar Association

9E.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. 9E.26. In this section: (a) In order to enjoy the right of audience before the courts, all lawyers are encouraged to be members of the appropriate Bar Association. (b) Mandatory system of bar membership may be changed to a voluntary one provided it is insuring high professional and ethical standards and maintaining independence of the profession.

Mt. Scopus Standards



399

Function of the Bar Association

9E.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 competent, 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 application 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 assistance to a cases; appropriate in family his of member; (k) to affiliate with and participate in the activities of international organizations of lawyers. 9E.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. 9E.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: i) any search of his person or property, ii) any seizure of documents in his possessions, and iii) any decision to take 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 nominee, to follow the proceedings, and in particular to ensure that- professional secrecy is safeguarded.

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Disciplinary Proceedings

9E.30. The Bar Association shall freely establish and enforce, in accordance with the law, a code of professional conduct of lawyers. 9E.31. The Bar Association shall have exclusive competence to initiate and conduct disciplinary 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. 9E.32. Disciplinary proceedings shall be conducted in the first instance by a disciplinary committee established by the Bar Association. 9E.33. An appeal shall lie from a decision of the disciplinary committee to an appropriate appellate body. 9E.34. Disciplinary proceedings shall be conducted with full observance of the requirements of fair and proper procedure, in the light of the principles expressed in this declaration.



Defence of judicial independence

9E.35. Lawyers have an individual professional responsibility to uphold the independence of the judiciary. 9E.36. Lawyers professional associations shall have a duty to defend the independence of the judiciary.

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.

Mt. Scopus Standards

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10.3 The court shall be free to determine the conditions for its international administration, 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 personal 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 appointment 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 functions in an independent manner.

402 13

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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 protect 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 perform 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 comment extra-judicially upon pending cases.

Mt. Scopus Standards

403

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 settlement 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.

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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 proceedings 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 provided 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 capacity 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 proceedings 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 proceedings any circumstances which come to their notice at any time by virtue of which any of Principles 16 to 22 apply.

Mt. Scopus Standards

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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.



Section 24A: Ensuring impartiality of chairperson and members of commission of inquiry and other quasi judicial institutions.58

24A.1 All international officers exercising judicial and quasi judicial functions and investigative and auditing functions are subject to the duty of fairness and impartiality. This includes international commissions of inquiry, mediation, arbitration, auditing officers and internal auditing officers of international organizations. Such said officers and Members or chairmen of international commission or committee of inquiry shall maintain impartiality and demonstrate independence in conducting inquiries and in making fact-finding and recommendations. 24A.2. The general rules applicable to international judges, including Sections 10–24 in case of circumstances requiring disqualification of judges, shall also apply to said officers and commissions and committees of inquiry and to quasi judicial or investigative or auditing institutions. 24A.3. The general rules applicable to international judges, including Sections  10–24 in case of circumstances requiring disqualification of judges shall also apply to auditing officers and internal auditing officers of international organizations.

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. 58

Amended at Osnabruck Conference, 2014.

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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 independence 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 security of tenure shall not apply to ad hoc judges.

Mt. Scopus Standards

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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

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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, 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

Mt. Scopus Standards

409

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

xi

Moscow May 2014

Judicial Independence As Essential Foundation of Justice and Peace, Moscow and St. Petersburg, May 2014 Kutafin Moscow State Law University

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Co-chairs and Organising Committee Professor Irina Reshetnikova, Urals State Law Academy, President of the Federal Arbitrazh Court of Urals Region, Conference Co-Chair Professor Shimon Shetreet, Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem, President, International Association of Judicial Independence and World Peace, Co-Chair Dmitry Magonya, Managing Partner for art de lex Law Firm, Moscow Professor Vladimir Sinyukov, Prorector, Kutafin Moscow State Law University (msal),

xii

Osnabrueck October 2014

Judicial Impartiality and Independence: Ensuring Fairness in Cases Involving Foreign Parties in Domestic Courts, Judicial Impartiality and Independence - Ensuring Fairness in Cases Involving Foreign Parties in Domestic Courts, Osnabrück University, 24–26 October 2014 Co-Chairs Professor Fryderyk Zoll, Osnabrück University, Jagiellonian University of Krakow Professor Shimon Shetreet, Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem, President, International Association of Judicial Independence and World Peace

xiii

Bologna Milan 2015

Judicial Independence in a Globalized Legal Culture: The Use of Foreign and Transnational Precedents by National Supreme Courts, University of Bologna and University of Bocconi Milan, 4 June–6 June 2015 Co-Chairs: Professor Dr. Shimon Shetreet, Hebrew University of Jerusalem, President, International Association of Judicial Independence and World Peace Aggregate Professor Daniela Cavallini, University of Bologna, Bologna Professor Dr. Giuseppe Franco Ferrari, University of Bocconi, Milan

xiv

Krakow Conference 2016

Judicial Independence in Times of Transition of Government and Impartiality for Foreign Parties in Domestic Courts, 15–17 January 2016

Mt. Scopus Standards

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Co-Chairs: Professor Dr. Shimon Shetreet, Hebrew University of Jerusalem, President, International Association of Judicial Independence and World Peace Dr Elwira Macierzynska-Franaszczyk, Kozminsky University, Warsaw Professor Dr. Fryderyk Zoll, Osnabrück University and Jagiellonian University of Krakow.



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

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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 Professor 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 Professor 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

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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 Professor 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

APPENDIX ii

Global Code of Judicial Ethics

International Project of Judicial Independence of the International Association of Judicial Independence and World Peace (jiwp) Bologna-Milano Global Code of Judicial Ethics 2015 Approved at the International Conference of Judicial independence held at the University of Bologna and at Bocconni University of Milano June 2015



Preamble

The Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights and regional human rights instruments, in domestic constitutional, statutory and common law, and in judicial conventions and traditions, recognize as fundamental the principle that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of rights and obligations and of any criminal charge or of rights and obligations in a suit at law, everyone shall be entitled, without undue delay, to a fair and public hearing by a competent, independent and impartial tribunal established by law. The importance of a competent, independent and impartial judiciary to the protection of human rights is given emphasis by the fact that the implementation of all the other rights ultimately depends upon the proper administration of justice, and is also essential if the courts are to fulfil their role in upholding constitutionalism and the rule of law. Public confidence in the judicial system and in the moral authority and integrity of the judiciary is of the utmost importance in a modern democratic society and it is essential that judges, individually and collectively, respect and honour judicial office as a public trust and strive to enhance and maintain confidence in the judicial system. The primary responsibility for the promotion and maintenance of high standards of judicial conduct lies with the judiciary in each country. The Global Code of Judicial Ethics is intended to clarify standards for ethical conduct of judges. The Code is designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. Parallel to the development of national codes of judicial ethics it is very important that a global code of judicial ethics should be adopted. The text is based on and adopted from standards contained in the Mt. Scopus International Standards of Judicial Independence 2008, The New Delhi Code of Minimum Standards of Judicial independence 1982, Montreal Universal Declaration of The Independence of Justice 1983, The © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_031

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Bangalore Principles of Judicial Conduct November 2002, the United Nations Basic Principles of Independence of the Judiciary, The Burgh House Principles of Judicial Independence in International Law (for the international judiciary), the American Bar Association’s revision of its ethical standards for judges. The Global Code is also based on the Code of Judicial conduct for the United States Judges 1973, California Canon of Ethics 2003, Canadian Judicial Council, Ethical Principles for Judges (1998),1 Council of Chief Justices of Australia Guide to Judicial Conduct (2002),2 the Guide to Judicial Conduct (for General Courts),3 and the Guide to Judicial Conduct 2009 (uk Supreme Court).4 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 independence, efficiency and role of judges by the Council of Europe 1998 . The Global Code of Judicial Ethics is adopted as an additional essential and complimentary code to the Mount Scopus International Standards of Judicial Independence.



Part One: National Judges

1

Basic Principles5

1.1

1.2

The Global Code of Judicial Conduct reflects and expresses fundamental values and morals which constitute the basis of the acts of judicature and the behaviour and conduct of a judge. The rules of the code are a crystallization of essential guiding principles which draw from ancient tradition and adapt themselves to contemporary times and place. A judge shall direct his ways according to the law and in accordance with these rules, and shall at all times place before his eyes the need to maintain the confidence of the public in the judicial branch. A judge shall be seen as having breached a rule of the Code of Judicial Conduct in a way allowing submittal of a complaint to the Disciplinary Authority if his

1 Accessed at www.cjc-ccm.gc.ca/cmskib/general/news_pub_judicialconduct_Principles_en .pdf. 2 Accessed at www.aija.org.au/online/GuidetoJudicialConduct.pdf. For the practise in Australia see Mr Justice Thomas’ study, Judicial Ethics in Australia (2nd ed., 1997). 3 Accessed at www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/guide-judicial-con duct-aug2011.pdf. 4 hcj 1622/00 Yoav Yitzhak v. Aharon Barak President of the Supreme Court 54(2) P D 54. 5 Israel Rules of Judicial Ethics (2007).

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conduct constitutes intentional or gross violation of the code reaching the extent of improper conduct in fulfilling his role or conduct which does not befit the status of a judge. 1.2.1 The procedure of disciplinary measures shall be conducted in full transparency including the final judgement. 1.3 Every jurisdiction should establish citizens’ complaints procedure to allow citizens to submit complaints against misconduct or improper conduct of judges. The panel of the review body of the complaints must include lay-people who are not judges or former judges; they shall be the majority of the panel. 1.4 To assist in the implementation and interpretation of the code it is strongly recommended that each jurisdiction shall establish advisory committee on ethics which shall receive enquiries from judges and other professional authorities regarding questions of ethics and conduct.

2 2.1

Judicial Independence6

Judicial independence is sometimes mistakenly perceived as a privilege enjoyed by judges, whereas it is in fact a cornerstone of the system of government in a democratic society and a safeguard of the freedom and rights of the citizen under the rule of law. The judiciary, whether viewed as an entity as a judicial branch or by its individual membership, is and must be seen to be, independent of the legislative and executive branches of government. 2.2 The relationship between the judiciary and the other branches should be one of mutual respect, each recognising the proper role of the others. Judges should always take care that their conduct, official or private, does not undermine their institutional or individual independence, or the public appearance of independence. 2.3 The judicial oath normally provides (as in the text in the uk): “I will do right to all manner of people after the laws and usages of this Realm, without fear or favour, affection or ill-will.” In taking that oath, the judge has acknowledged that he or she is primarily accountable to the law which he or she must administer. 2.4 The oath plainly involves a requirement to be alert to, and wary of, subtle and sometimes not so subtle attempts to influence judges or to curry favour. Moreover, in the proper discharge of duties, the judge must be immune to the effects of publicity, whether favourable or unfavourable. That does not of course mean being immune to an awareness of the profound effect judicial decisions may have, not only on the lives of people before the court, but sometimes upon issues of great concern to the public, concerns which may be expressed in the media.

6 uk.

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2.5 Consultation with colleagues when points of difficulty arise is important in the maintenance of standards. In performing judicial duties, however, the judge shall be independent of judicial colleagues and solely responsible for his or her decisions.

3

General Ethical Standards7

3.1 3.1.1 3.1.2 3.2 3.3 3.4

Judges may not serve in Executive or Legislative functions, including as: Ministers of the government; or as Members of the Legislature or of municipal councils. Judges shall not hold positions in political parties A judge, other than a temporary or part-time judge, may not practise law. A judge should refrain from business activities and should avoid engaging in other remunerative activity,8 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,9 or that judge’s teaching at a university or a college. 3.5 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. 3.6 Judges may be organized in associations designed for judges, for furthering their rights and interests as judges. 3.7 Judges may take appropriate action to protect their judicial independence.10 3.8 A judge shall disqualify himself or herself from participating in any proceedings in which the judge in 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. 3.9 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: 7

8 9 10

Adopted from the Mt. Scopus Standards of Judicial Independence 2008. As amended. See Human Rights Watch, Rigging the Rule of Law: Judicial Independence Under Siege in Venezuela, Volume 16, No. 3(B) (June 2004). aba Model Code of Judicial Conduct (February 2007), Canon 4, Article D(2). aba Model Code of Judicial Conduct (February 2007), Canon 4, Article D(2) discusses family. This is how the section appears in the Montreal Declaration, section 2.09.

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3.9.1 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.11 3.10 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.12 3.11 Judges shall discourage ex parte communications from parties and except as provided by the rules of the court such communications shall be disclosed to the court and to the other party. 3.12 Except in cases of legitimate consultations a judge shall not approach other judges not sitting with him on the same panel on pending cases.13

4

Securing Impartiality and Independence14

4.1

A judge15 shall enjoy immunity from legal actions, except for intentional or gross violations, in the exercise of official functions.16 4.2 A judge shall not sit in a case where there is a reasonable suspicion of bias or potential bias.17

11 12 13

14 15 16

17

Bangalore Principles of Judicial Conduct. Recommendation N.R(94)12 of the committee of Ministers of the Council of Europe to Member States. This article was added as an Amendment to the Mt. Scopus Standards of Judicial independence in Vienna in 2011. See analysis of the background of the amendment in C ­ hristopher Forsyth, Accountability of Judicial Service Commission to the Law, in Shimon Shetreet ed., Culture of Judicial Independence Rule of Law and World Peace 48 (2014). See Cyrus Das and K. Chandra, Editors, Judges and Judicial Accountability, Universal Law Publishing Company Ltd., Delhi. This does not exclude the possibility that the state may be liable for the gross negligence of a judicial office. 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 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). “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 2 c.c.c. (3d) 417, at 423 (1983).

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4.3 A judge shall avoid any course of conduct which might give rise to an appearance of partiality. 4.4 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, threats18 or interferences, direct or indirect, from any quarter or for any reason. 4.5 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.19 4.6 Ensuring impartiality of chairpersons and members of commissions and committees of inquiry and other quasi-judicial institutions.20 4.6.1 All officers exercising judicial and quasi-judicial and investigative and auditing functions are subject to the duty of fairness and impartiality. This includes commissions of inquiry, mediation, arbitration, state auditing and internal auditing. All such officers and Members or chairpersons of commission or committee of inquiry shall maintain impartiality and demonstrate independence in conduction inquiries and in making fact-finding and recommendations. 4.6.2 The general rules applicable to national judges in case of circumstances requiring disqualification of judges, shall also apply to administrative adjudicators and members of commissions of inquiry and to quasi-judicial institutions. 4.6.3 The general rules applicable to national judges in case of circumstances requiring disqualification of judges shall also apply to internal auditors and state auditors. 4.6.4 Impartiality:21 a judge shall treat the parties equally, shall neither be partial to the poor nor defer to the rich and powerful, shall not be gracious to one party and ungracious to another, and shall judge with an open mind, with no prejudice or partiality. 4.7 Public Inquiries by judges:22 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 capacity of a judge but as a public servant in public administration. 18 19 20 21 22

Including physical threats to injure or to kill. Recommendation N.R(94)12 of the committee of Ministers of the Council of Europe to Member States. This section was added as an Amendment to the Mt. Scopus Standards of Judicial independence in the Osnabruck Conference, 2014. Israel Rules of Judicial Ethics (2007). This article was added as an Amendment to the Mt. Scopus Standards of Judicial independence in Ghent 2012.

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4.7.1 While a serving judge conducts a public inquiry, in accordance with terms of reference stated by Government, he must act impartially and independently of any party interested in the substance of the public inquiry. 4.7.2 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. 4.7.3 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. 4.7.4 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. 4.7.5 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.

5

Integrity, Propriety and Equality23

5.1 Integrity: Integrity is essential to the proper discharge of the judicial office. 5.1.1 A judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer. 5.1.2 The behaviour and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done. 5.2 Propriety: Propriety and the appearance of propriety are essential to the performance of all of the activities of a judge. 5.2.1 A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities. 5.2.2 As a subject of constant public scrutiny, a judge must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, a judge shall conduct himself or herself in a way that is consistent with the dignity of the judicial office. 5.2.3 A judge shall, in his or her personal relations with individual members of the legal profession who practise regularly in the judge’s court, avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality. 23

BANGALORE Principles of Judicial Conduct.

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5.2.4 A judge shall not participate in the determination of a case in which any member of the judge’s family represents a litigant or is associated in any manner with the case. 5.2.5 A judge shall not allow the use of the judge’s residence by a member of the legal profession to receive clients or other members of the legal profession. 5.2.6 A judge, as any other citizen, is entitled to freedom of expression, belief, association and assembly, but in exercising such rights, a judge shall always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary. 5.26a A judge should not cast opprobrium on the bona fides of other judges except when filing an appropriate grievance. 5.2.7 A judge shall inform himself or herself about the judge’s personal and fiduciary financial interests and shall make reasonable efforts to be informed about the financial interests of members of the judge’s family. 5.2.8 A judge shall not allow the judge’s family, social or other relationships improperly to influence the judge’s judicial conduct and judgment as a judge. 5.2.9 A judge shall not use or lend the prestige of the judicial office to advance the private interests of the judge, a member of the judge’s family or of anyone else, nor shall a judge convey or permit others to convey the impression that anyone is in a special position improperly to influence the judge in the performance of judicial duties. 5.2.10 Confidential information acquired by a judge in the judge’s judicial capacity shall not be used or disclosed by the judge for any other purpose not related to the judge’s judicial duties. 5.2.11 Subject to the proper performance of judicial duties, a judge may: 5.2.11.1 write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matters; 5.2.11.2 appear at a public hearing before an official body concerned with matters relating to the law, the legal system, the administration of justice or related matters; 5.2.11.3 serve as a member of an official body, or other government commission, committee or advisory body, if such membership is not 6 inconsistent with the perceived impartiality and political neutrality of a judge; or 5.2.11.4 engage in other activities if such activities do not detract from the dignity of the judicial office or otherwise interfere with the performance of judicial duties. 5.2.12 A judge shall not practise law whilst the holder of judicial office. 5.2.13 A judge may form or join associations of judges or participate in other organisations representing the interests of judges.

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5.2.14 A judge and members of the judge’s family, shall neither ask for, nor accept, any gift, bequest, loan or favour in relation to anything done or to be done or omitted to be done by the judge in connection with the performance of judicial duties. 5.2.15 A judge shall take steps to prevent court staff or others subject to the judge’s influence, direction or authority, to ask for, or accept, any gift, bequest, loan or favour in relation to anything done or to be done or omitted to be done in connection with his or her duties or functions. 5.2.16 Subject to law and to any legal requirements of public disclosure, a judge may receive a token gift, award or benefit as appropriate to the occasion on which it is made provided that such gift, award or benefit might not reasonably be perceived as intended to influence the judge in the performance of judicial duties or otherwise give rise to an appearance of partiality. 5.3 Equality: Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office. 5.3.1 A judge shall be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, colour, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes ("irrelevant grounds"). 5.3.2 A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds. 5.3.3 A judge shall carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties. 5.3.4 A judge shall not knowingly permit court staff or others subject to the judge’s influence, direction or control to differentiate between persons concerned, in a matter before the judge, on any irrelevant ground. 5.3.5 A judge shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on irrelevant grounds, except such as are legally relevant to an issue in proceedings and may be the subject of legitimate advocacy.

6 6.1

Conduct in Court24 Conduct of hearings

It is important for judges to maintain a standard of behaviour in court that is consistent with the status of judicial office and does not diminish the confidence of litigants 24

Council of Chief Justices of Australia, Guide to Judicial Conduct (2002).

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in particular, and the public in general, in the ability, the integrity, the impartiality and the independence of the judge. 6.1.1 It is the duty of a judge to display such personal attributes as punctuality, courtesy, patience, tolerance and good humour.25 6.1.2 A judge must be firm but fair in the maintenance of decorum, and above all beeven-handed in the conduct of the trial.26 6.1.3 A judge must be strict in the observance of the principles of natural justice, and in the protection of a party or witness from any display of racial, sexual or religious bias or prejudice. 6.1.4 A judge must not convey an impression that the judge and counsel are treating the proceedings as if they were an activity of an exclusive group.27

6.2

Participation in the trial

6.3

Private communications

It is common and often necessary for a judge to question a witness or engage in debate with counsel, but the judge should keep the proper level of such intervention to a moderate measure. 6.2.1 A judge must be careful not to descend into the arena and thereby appear to be taking sides or to have reached a premature conclusion.

The principle that, save in the most exceptional circumstances, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of a party) otherwise than in the presence of, or with the previous knowledge and consent of, the other party (or parties) once a case is under way is, of course, very well known.28

25

26 27

28

The entitlement of everyone who comes to court, litigants and witnesses alike, to be treated in a way that respects their dignity should be constantly borne in mind. The trial of an action, whether civil or criminal, is a serious matter but that does not mean that occasional humour is out of place in a courtroom, provided that it does not embarrass a party or witness. Indeed it sometimes relieves tension and thereby assists the trial process. The absence of any intention to offend a witness or a litigant does not lessen the impact. Informal exchanges between the judge and counsel may convey an impression that the judge and counsel are treating the proceedings as if they were an activity of an exclusive group. This is a matter to be borne in mind particularly in a case in which there is an unrepresented litigant, but the caution extends to all cases. The principle is referred to by McInerney J in R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] vr 122 (at 127) in a statement approved in Re jrl; Ex parte cjl (1986) 161 clr 342 by Gibbs CJ (at 346) and Mason J (at 350–351).

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6.3.1 An approach to a judge in chambers by the lawyers for one party should not be made without the presence, or the knowledge and consent of, the lawyers for the other party.29

6.4

Criminal trials before a jury

6.5

Revision of oral judgments

The nature or extent of judicial intervention in the course of evidence or argument in a jury trial must not convey to the jury a judicial view of guilt or innocence.

6.5.1 Oral judgments: A judge may not alter the substance of reasons for decision given orally.30 6.5.1.1 Subject to that basic principle, a judge may revise the oral reasons for judgment where, because of a slip, the reasons as expressed do not reflect what the judge meant to say, or where there is some infelicity of expression. Errors of grammar or syntax may be corrected. References to cases may be added, as may be citations for cases referred to in the transcript. 6.5.2 Summing up to a jury: Apart from errors of spelling or punctuation which may alter the meaning if uncorrected, there should be no change to the transcript of a summing up unless it does not correctly record what the judge actually said.31 6.5.2.1 Where time and opportunity permit, a judge must prepare written notes of the intended charge to the jury, particularly with respect to directions on the law, which may help to validate any proposed change to the transcript of the summing up. If the transcript is corrected, and a fresh transcript of the summing up incorporating the corrections is to be prepared, the original transcript should be retained on the court file. 6.5.3 It is the duty of a judge to ensure accurate accounts of the protocol of the proceedings. 6.6 Reserved judgment: A judge should aim to prepare and deliver a reserved judgment as soon as possible. In case of a delay, a judge should speak to the head of the jurisdiction about the situation before it becomes a problem.32 29

30 31 32

It is important to bear in mind that breaches of the principle can occur through oversight, sometimes when attempts are made to adopt what may seem to be practical, convenient, or time-saving measures. Care should be taken, for example, on country circuits if suggestions are made about shared travel that seem sensible at the time, but may in fact involve a breach of the principle. That is the basic principle. This is because the transcript of a summing up to a jury is, like the transcript of evidence, intended to be a true record of what was said in court. It sometimes happens that circumstances lead to an unacceptable accumulation of reserved judgments.

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6.7 The judge as a mediator: Many judges consider that the role of a mediator is so different from that of a judge that a judge must not act as a mediator.33

7

Activities Outside the Court and Extrajudicial Activities

7.1

The Media

7.2

Participation in Public Debate

7.1.1 Judges should exercise their freedom to comment in the media, with ‘the greatest circumspection’.34 A judge should refrain from answering public criticism of a judgment or decision, whether from the bench or otherwise. Judges should not air disagreements over judicial decisions in the press.35 7.1.2 Judges must be careful when they are factually misreported or where the judges are aware, particularly when sentencing in a criminal case.36

7.2.1 There is no objection to such participation in public debate provided the issue directly affects the operation of the courts, the independence of the judiciary or aspects of the administration of justice.37

33

34 35 36

37

The difference lies in the interaction of a mediator with counsel and parties, often in private – i.e. in the absence of opposing counsel or parties, which is seen to be incompatible with the way in which judicial duties should be performed, with the risk that public confidence in the judiciary may thereby be impaired. Many judges would see this as a matter of court policy. In some courts, the Rules of Court with respect to mediation specifically recognize the appointment of a serving judge as a mediator. The success of judicial mediation in those jurisdictions appears to justify the practice. The statutory obligation of confidentiality binding upon a mediator, and the withdrawal of the judge from the trial or an appeal, if the mediation fails, should enable a qualified judge to act as a mediator without detriment to public expectations of the judiciary. Lord Bingham has commented that ‘a habit of reticence makes for good judges.’ In his speech in the House of Lords on 21 May 2003, Lord Woolf CJ referred to “the very important convention that judges do not discuss individual cases”. Guidance as to how to react when a judge is factually misreported or where the judge is aware, particularly when sentencing in a criminal case, that remarks could be misinterpreted by reporters, is contained in the guidance on dealing with the media available on the judicial intranet at: http://judiciary.sut1.co.uk/info_about/media_issues. htm. However, and subject to the above, many aspects of the administration of justice and of the functioning of the judiciary are the subject of necessary and legitimate public consideration and debate in the media, legal literature and at public meetings, seminars and lectures, and appropriate judicial contribution to this consideration and debate can be desirable. It may contribute to the public understanding of the administration of justice

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7.2.2 A judge must take care to not cause the public to associate the judge with a particular organization, group or cause. The participation should not be in circumstances which may give rise to a perception of partiality towards the organization (including a set of chambers or firm of solicitors), group or cause involved or to a lack of even handedness. 7.2.3 Dialogue may not take the form, and the judge cannot expect to assume the role, which the judge would consider appropriate in court proceedings. The judge cannot expect to join in and leave the debate on the judge’s terms.38 7.2.4 A judge must consult with Heads of Division, the presiding, resident or designated judge, as the case may be (the “head of the appropriate jurisdiction”). A judge must also consider the risk of expressing views that will give rise to issues of bias or pre-judgment in cases that later come before the judge must also be considered.39 7.2.5 A judge must consider the dignity of judicial office before participation in public protests and demonstrations.

7.3

Commercial Activities

7.3.1 There must be requirements of office clearly in place with severe restraints upon the permissible scope of a judge’s involvement with commercial enterprises.40 7.3.2 The risks, including the risk of litigation, associated with the office of trustee, even of a family trust, should not be overlooked and the factors involved need to be weighed carefully before office is accepted.41

38

39

40

41

and to public confidence in the judiciary. At the least, it may help to dispel misunderstandings and correct false impressions. The risk of different judges expressing conflicting views in debate must also be borne in mind in that a public conflict between judges, expressed out of court, may bring the judiciary into disrepute and diminish the authority of the court. There are plainly risks in a judge, whether exercising a criminal or a civil jurisdiction, who may have to deal with a wide range of people in his or her jurisdiction, being exposed to public debate in such a way that the authority and status of the judicial office may be undermined. Guidance appears in the cases as to the extent to which a judge is entitled to pursue commercial activities and further detailed guidance, save by reference to the cases, is inappropriate in this document. Reference to the judge’s terms of service is appropriate. The management of family assets and the estates of deceased close family members, whether as executor or trustee, is unobjectionable, and may be acceptable for other relatives or friends if the administration is not complex, time consuming or contentious.

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Involvement in Community Organisations

7.4.1 Care must be taken with involvement in community organisations to not compromise judicial independence or put at risk the status or integrity of judicial office. Such activities should not be so onerous or time consuming as to interfere with the judge’s performance of his or her duties and the judge’s role should not involve active business management. 7.4.2 Judges generally should not be involved in fund raising. Care should be taken in considering whether, and if so to what extent, a judge’s name and title should be associated with an appeal for funds, even for a charitable organization.42 7.4.3 It is necessary to limit and regulate the nature and extent of personal involvement in contentious situations. Any conflict of interest in a litigious situation must be declared.43

7.5 References

7.5.1 A judge may give references for character or professional competence for persons who are well known to the judge.44 7.5.2 A judge may give character evidence in court or otherwise.45 7.5.2.1 This task should be undertaken only exceptionally and for a limited purpose.46

42

43

44

45 46

Judges may properly be involved in the management of educational, charitable and religious organizations and trusts subject to the reservation already stated in relation to community organizations. It could amount to an inappropriate use of judicial prestige in support of the organization and may also be seen as creating a sense of obligation to donors. There will be occasions, for example in the case of charities supporting the work of the Courts, where the objection would not apply. Many judges hold or have held high office in governing bodies of universities and similar institutions without embarrassment notwithstanding that the management and funding structures of such organizations are complex, and are often the subject of public debate and political controversy. Moreover, in considering whether to accept office and what role to play, consideration should be given to the trend of some such bodies to be more entrepreneurial and to resemble a business. The greater the move in that direction, the less appropriate judicial participation may be. Consideration should be given as to whether the judge is the appropriate person to give the reference requested, the principle being that someone should not be deprived of a reference because the person best able to give it is the judge. Plainly judges should guard against inappropriate requests. Particularly where it may seem unfair to deprive the person concerned of the benefit of such evidence. This is because of the risks inherent in the judge entering the arena, and the pressure such evidence may put on the trial judge or magistrate.

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7.6 Remuneration

Judges holding full-time appointments are barred from legal practice. In addition to a judicial salary, a full-time judge should not receive any remuneration except for fees and royalties earned as an author or editor. A judge may of course receive money from investments or property. 7.6.1 Lectures, and teaching in an institution: It is possible to allow a judge to engage in legal lectures, and the remuneration for the teaching is subject to two standards, which both must be met: 7.6.1.1 The level of remuneration shall not exceed the level practised in that institution for similar work. 7.6.1.2 The payment received by the judge shall not exceed the equivalent of maximum 25% of his judicial salary. 7.6.2 The acceptance by the judge of delivering a single lecture or teaching position in a higher educational institution or giving a lecture is subject to the grant of permission by a proper judicial authority.

7.7

Business cards

7.8

Gifts, Hospitality and Social Activities

7.7.1 A judge should be very cautious in describing his position in business cards or letterheads.47

7.8.1 Gifts and Hospitality. A judge must be cautious when accepting any gift or hospitality that may be offered.48

47

48

E.g. It is not appropriate for someone who sits as a deputy high court judge, a recorder or as a deputy district judge, to describe him or herself as such on a business card, cheque book or letterhead. Entries of a biographical nature in, for example, a firm’s or chambers’ brochure, are acceptable. It is necessary in this context to distinguish between accepting gifts and hospitality unrelated to judicial office, for example from family and close friends, and gifts and hospitality which in any way relate, or might appear to relate, to judicial office. In relation to the latter category, judges should be on their guard against any action which could be seen to undermine their impartiality. Judges should be wary, therefore, of accepting any gift or hospitality which might appear to relate in some way to their judicial office and might be construed as an attempt to attract judicial goodwill or favour.

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7.8.2 The acceptance of a gift or hospitality of modest value, as a token of appreciation, may be unobjectionable, depending on the circumstances. For example a judge who makes a speech or participates in some public or private function may accept a small token of appreciation.49 7.8.3 A judge may accept invitations to lunches and dinners by legal and other professional and public bodies or officials.50 7.8.4 Caution should be exercised when invited to take part in what may be legitimate marketing or promotional activities, for example by barristers’ chambers or solicitors’ firms, or professional associations.51 7.8.5 A judge must not exploit the status and prestige of judicial office to obtain personal favours or benefits. 7.8.6 A judge should seek the advice of the head of the appropriate jurisdiction when in doubt as to the propriety of accepting any gift or hospitality. 7.8.7 Contact with the Profession. A judge must avoid direct association with individual members of the profession who are engaged in current or pending cases before the judge.52 7.8.8 Other Social Activities. A judge is under the duty to maintain the dignity of the office and not to permit associations which may affect adversely the judge’s ability to discharge his or her duties. 49

50 51 52

It may include a contribution to charity in the manner explained in the Memorandum on Conditions of Appointment and Terms of Service (October 2000). “The Lord Chancellor regards it as inappropriate for a judge to receive a fee personally for giving a lecture. However, where a judge gives a lecture for a commercial undertaking there is no objection, if he considers that it would be appropriate, to his requesting that any fee otherwise payable be paid to a charity of his choice. To avoid any liability for tax, a judge should try to ensure that payment is made direct to the charity. Where this is not possible, e.g. accounting reasons, and the charity would otherwise lose out, a judge may accept the payment himself, provided that he is prepared to pay the tax on that sum and make the payment directly to the charity himself. There is no objection to a judge accepting reimbursement of the cost of any necessary travel and accommodation necessitated by attending a suitable lecture, conference or seminar.” Also where attendance can be reasonably seen as the performance of a public or professional duty, carrying no degree of obligation, is entirely acceptable. The object of judicial participation may be perceived to be the impressing of clients or potential clients. There is a long-standing tradition of association between bench and the bar and the solicitors’ profession. This occurs both on formal occasion, such as dinners, and less formal ones. There will be cases in which retaining too close a social relationship with a practitioner who regularly has litigation before the judge’s court may create a perception of bias but the particular circumstances, which will vary widely, must be addressed.

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7.8.9 A judge should be very careful to avoid a situation of suspicion of bias in case of close social relations with a lawyer or a witness or party in the case, which could become grounds for disqualification.

7.9

Use of Equipment

7.10

Judicial Office-holders’ duty to notify legal proceedings and other matters relating to conduct

A judge should not make personal use of equipment, including it equipment, provided by the Court Service for his or her use as a judge.53 Detailed guidance upon the use of it equipment, including the importance of not compromising its security should be detailed in the relevant rules

7.10.1 All judicial office-holders have an obligation to notify the appropriate s­enior ­judicial officer if they are aware of any matters relating to conduct which may ­affect their position or may reflect on the standing and reputation of the judiciary at large.

7.11

Criminal proceedings (including minor offences)

7.12

Civil proceedings

7.11.1 Without prejudice to the generality of the above, they must also notify the appropriate magistrate or minister if they are cautioned for, or charged with, any criminal offence other than a parking or minor traffic offence without aggravating circumstances. 7.11.2 Special rules should apply in respect of minor offenses. 7.11.3 Office-holders should advise the relevant judicial authority on court proceedings relating to a charge against them. This is to ensure that full and timely consideration can be given to the listing of the case and whether or not it would be appropriate for the office-holder to continue sitting while court proceedings are pending.

7.12.1 All judicial office-holders have an obligation to report to the relevant judicial authority their involvement in legal proceedings which are coming to court. This includes all civil proceedings (including family proceedings) and is to ensure that the relevant judicial authority can give full and timely consideration to the listing of the case and whether or not it would be appropriate for the office-­ holder to continue sitting in that area or jurisdiction whilst proceedings are ongoing.

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Other purposes could bring the judge or the judiciary in general into disrepute.

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Other proceedings

7.13.1 Judicial office-holders must also notify the relevant judicial authority if they are the subject of any complaint or disciplinary proceedings by any professional body to which they belong; or if they get into serious financial difficulties particularly where legal proceedings are or are likely to be initiated. 7.13.2 Failure to report proceedings as set out above could result in disciplinary action. 7.14 It is the duty of a judge to engage in continued judicial education.

8

Social Networking and Blogging

8.1

A judge may use social networking, or use social media.

8.2

A judge should follow the following suggested rules:

8.1.1 Judges must follow the guidance that the relevant authority in his or her jurisdiction has issued on the security aspects of this medium.54

8.2.1 A judge must ensure that information about his or her personal life and home address is not available online.55 8.2.2 A judge must be wary of publishing more personal information than is necessary.56 8.2.3 A judge must not post information that could put personal safety at risk.57 8.2.4 A judge must check privacy settings and restrict access to their profile to ensure information is kept to a restricted group. 8.2.5 A judge must check the terms and conditions of any sites to which he or she signs up and ensure they are aware of who owns data posted on the site and what the owners of the site can do with their data.

54

55

56

57

Although there is no specific guidance on this matter, judges are encouraged to bear in mind that the spread of information and use of technology means it is increasingly easy to undertake ‘jigsaw’ research which allows individuals to piece together information from various independent sources. A simple way of checking can be by typing your name into an internet search engine such as Google. You may also want to talk to your family about such social networking systems as Facebook where personal details which carry some risk-such as holiday absences-can unwittingly be put into the public domain. In particular phone numbers, dates of birth and addresses are key pieces of information for security fraudsters. Other users probably don’t need to know such details – if any contacts do need them send them to individuals separately. For example, personal address, details of holiday plans and information about your family could be used for criminal purposes. Photographs could enable home addresses or car numbers to be identified.

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8.2.6 A judge may blog. 8.2.6.1 Judicial office-holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. 8.2.6.2 A judge must not express an opinion that, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general. This also applies to blogs which purport to be anonymous. 8.2.7 Failure to adhere to the guidance could ultimately result in disciplinary action.

9

Post-Judicial Activities58

9.1

Professional and commercial activities

9.2 9.3

A judge may receive a judicial pension.60 Professional legal activities

Judges may avoid the sometimes difficult and controversial decisions that have to be taken by those who seek a more active and remunerative role.59

9.3.1 Practice at the Bar: A judge contemplating retirement should consult the local Bar Association or Law Society for relevant rulings.61 58

59 60



61

Council of Chief Justices of Australia, Guide to Judicial Conduct (2002).The purpose of this chapter is not to dictate to retired judges, but to give guidance to serving judges who are contemplating or planning for their retirement. Particularly those who have remained in office to the age of statutory retirement, who choose to undertake only recreational activities in retirement. Most judges on appointment make a substantial financial sacrifice in terms of earning capacity. Nor does it seem necessary, in the discussion that follows, to draw any distinction in principle between: Those who have reached the statutory age of retirement; Those who, after quite lengthy judicial service, have chosen to retire early for reasons other than ill-health; Those relative few who have found themselves ill-suited to the judicial role and have resigned after a short term in office. If there is one guiding principle, a former judge should be satisfied that any proposed professional or commercial activity is not likely to bring the judicial office into disrepute, or put at risk the public expectation of judicial independence, integrity and impartiality. All however proscribe appearance as counsel in a court of which the judge was formerly a member, for various periods ranging from two to five years. This is a “grey area” in which it is not possible to formulate uniform guidelines. Australian experience suggests, however, that this topic is most likely to concern those who have resigned soon after appointment.

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9.3.2 Practice as a solicitor: A retired judge may have active association with a firm of solicitors, whether as a partner, consultant, or in some other capacity. 9.3.2.1 Preferably this will not be sooner than a year or so after retirement.62 9.3.3 Alternative dispute resolution – mediation and arbitration: Judges may be appointed or offer their services as mediators or arbitrators.63 9.3.4 Appointment as an acting or auxiliary judge:. A retired judge who sits from time to time as an acting or auxiliary judge must consider carefully the appropriateness of other activities that the retired judge might be undertaking.64 9.3.4.1 The exercise of the judicial office on a part-time basis may require the observance of, or at least consideration of, some of the restrictions identified in this publication. 9.3.4.2 A just must take particular care in relation to activities undertaken concurrently with part-time judicial work.

9.4

Commercial activities

9.5

Political activity

9.6

Participation in public debate

A retired judge may engage in commercial activities. 9.4.1 A retired judge must consider whether his or her activities might harm the standing of the judiciary, because of a continuing association in the public mind with that institution.

A retired judge may have involvement with politics. 9.5.1 A retired judge should consider whether the particular activity undertaken might reflect adversely on the judiciary.65

A retired judge may engage in public debate, and in many cases is well qualified to do so, particularly in matters touching the administration of justice generally.

62 63

64 65

Some judges consider that care should be taken to ensure that the firm does not take active steps to promote itself by overt reference to the judge’s former judicial status. It has become quite common for judges who have retired, whether early or at full retirement age, to be appointed or to offer their services as mediators or arbitrators. Although some judges do not approve of such activities, they are not at present subject to any legal or professional restraint. Many countries make provision for a retired judge to return to the court, for temporary or intermittent periods, as an acting judge. The public might continue to associate the retired judge with that institution.

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9.6.1 A retired judge should not act in such a way as to create the impression that he or she is speaking with judicial authority.66 9.6.2 A retired judge should not use the former title "Justice" or "Judge" in connection with activities of a political nature.

9.7

Community and social activities

A retired judge may engage in chosen recreational and other community and social activities. 9.7.1 Any activity that might tarnish the reputation of the judiciary should be avoided.67



Part Two: International Judges

10

Freedom of Expression and Association

10.1. 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. 10.2. Judges shall maintain the confidentiality of deliberations, and shall not comment extra-judicially upon pending cases. 10.3. 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.

11

Extra-Judicial Activity

11.1. 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. 11.2. Judges shall not exercise any political function.

66 67

A retired judge should consider whether a contribution to public debate is appropriately identified as coming from a retired judge. Even in retirement a former judge may still be regarded by the general public as a representative of the judiciary.

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11.3. 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.

12

Past Links to a Case

12.1 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 settlement 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. 12.2 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.

13

Past Links to a Party

13.1 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.

14

Interest in the Outcome of a Case

14.1. Judges shall not sit in any case in the outcome of which they hold any material personal, professional or financial interest. 14.2. 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. 14.3. Judges must not accept any undisclosed payment from a party to the proceedings or any payment whatsoever on account of a judge’s participation in the proceedings.

15

Contact with a Party

15.1. Judges shall exercise appropriate caution in their personal contacts with parties, agents, counsel, advocates, advisors, and other persons and entities associated

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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. 15.2. Judges shall discourage ex parte communications from parties and except as provided by the rules of the court such communications shall be disclosed to the court and to the other party.

16

Post-Service Limitations

16.1. 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. 16.2. 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. 16.3. Former judges shall not, except as permitted by rules of the court, act in any capacity in relations to any case on which they sat during their judicial term of office. 16.4. Former judges shall not act as agent, counsel, advisor or advocate in any proceedings 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. 16.5. 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.

17 Disclosure 17.1. Judges shall disclose to the court and, as appropriate, to the parties of the proceedings any circumstances which come to their notice at any time by virtue of which any of Principles 16 to 22 apply. 17.2. 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.

18 Waiver 18.1 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

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those Principles into operation, where the court expresses no objections and the parties give their express and informed consent to the judge acting.

19

Withdrawal or Disqualification

19.1 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.

20 Misconduct 20.1. 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 independence or impartiality. 20.2. 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. 20.3. The governing instruments of the court shall provide for appropriate measures, including the removal from office of a judge. 20.4. The outcome of any complaint shall be communicated to the complainant.

21

Ad Hoc Judges

21.1. 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. 21.2. The restrictions and provisions applicable to full-time international judges regarding past links, extra-judicial activities, post-service limitations, and security of tenure shall not apply to ad hoc judges. 22 Ensuring Impartiality of Chairperson and Members of Commission of Inquiry and Other Quasi Judicial Institutions.68 22.1. All international officers exercising judicial and quasi judicial functions and investigative and auditing functions are subject to the duty of fairness and impartiality. This includes international commissions of inquiry, mediation, arbitration, auditing officers and internal auditing officers of international 68

Added to the Mt. Scopus International Standards of Judicial independence at Osnabrueck Conference, 2014.

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organizations. Such said officers and Members or chairmen of international commission or committee of inquiry shall maintain impartiality and demonstrate independence in conducting inquiries and in making fact-finding and recommendations. 22.2. The general rules applicable to international judges, including sections  10–22 in case of circumstances requiring disqualification of judges, shall also apply to said officers and commissions and committees of inquiry and to quasi judicial or investigative or auditinginstitutions. 22.3. The general rules applicable to international judges, including sections 10–22 in case of circumstances requiring disqualification of judges shall also apply to auditing officers and internal auditing officers of international organizations.

appendix iii

The New Delhi Code of Minimum Standards of Judicial Independence (Adopted by the iba New Delhi Convention 1982) 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 1.

2 3.

4.

Judges and the Executive (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 function, a judge is subject to nothing but the law and the commands of his conscience. The judiciary as a whole should enjoy autonomy and collective independence vis-a-vis the Executive. (a) Judicial appointments and promotions by the Executive are not inconsistent with judicial independence. (b) Except for countries where by long historic and democratic tradition judicial appointments operate satisfactorily, judicial participation in the process of judicial appointments and promotions, whether by judicial commission or otherwise, is imperative for the maintenance of judicial independence. (a) The Executive may participate in the discipline of judges, only in referring complaints 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. (c) The Legislature may be vested with the powers of removal of judges, preferably upon a recommendation of a judicial commission.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004307087_032

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The Executive shall not have control over judicial functions. 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 shall 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 predetermined 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 praticable. (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 judicial 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 remuneration 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.

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(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 services shall not be applied to judges holding office at the time of passing the legislation, unless the changes improve the terms of service. 20. (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 practical 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.

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28. The procedure for discipline should be in camera; however, judgments in disciplinary 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 institution 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 television 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 process 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.

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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 appearance of partiality.

H

The Internal Independence of the Judiciary

47. In the decision-making process, a judge must be independent vis-a-vis his judicial colleagues and superiors.

Note – The above standards are subject to periodic review by the appropriate committee 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 judicial 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,

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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 crystallization 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 project for the development of an international comprehensive code of minimum standards 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 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 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 professional standing from over 30 countries took part in the Project. The participating countries 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 conference, 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 submitted for final approval to the nineteenth iba Biennial Convention in New Delhi in October 1982, and were finally approved with slight changes.

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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

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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 number of books, numerous publications in legal and lay journals

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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 ofLaws, 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

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­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 1980; 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

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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,

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(on transnational 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; delivered 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).

Appendix IV

Universal Declaration on the Independence of Justice

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 occasion: 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.

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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 a 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 0f 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 disputes 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 international 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 international law and the promotion of human rights;

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Whereas national and international courts shall, within the sphere of their competence, 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 pertinent 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 international 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.

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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 fundamental 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 governing 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 recommendation of a government, such appointment shall not be made in circumstances 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 recognized 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 integrity and independence of the judicial process, judges shall respect secrecy in, and in relation to their judicial deliberations;

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(b)  States and other external authorities shall respect and protect the secrecy and confidentiality of the courts’ deliberations at all stages.



Discipline and Removal



Judges Ad Hoc and Arbitrators

ii

National Judges



Objectives and Functions

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 members of the court and in accordance with its statute.

1.20 Unless reference to the context necessarily makes it inapplicable or inappropriate, the foregoing articles shall apply to judges ad hoc and to arbitrators in public international arbitrations.

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 observance 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 understanding 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 judicial 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;

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2.07

2.08

2.09 2.10



Appendix IV (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 internationally 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 subject 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. (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 operation 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. 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. Judges may take collective action to protect their judicial independence. Judges shall always conduct themselves in such a manner as to preserve the dignity 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, welltrained 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.

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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 safeguards 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 profession, or by a body in which members of the judiciary and the legal profession 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 candidate’s integrity and independence of judgment, professional competence, experience, 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 punish 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.

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2.20 The appointment of temporary judges and the appointment of judges for probationary periods is inconsistent with judicial independence. Where such appointments 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 retirement, 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 protection 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 deliberations, and to confidential information acquired in the course of their duties other than in public proceedings. (b) Judges shall not be required 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 personal investments or their ownership of property.

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2.31 A judge shall not sit in a case where a reasonable apprehension of bias on his part may arise.



Discipline and Removal



Court Administration

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 members 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 indispensable role in maintaining the rule of law and judicial independence, it is recommended 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.

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.

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2.42 The budget of the court shall be prepared by the competent authority in collaboration 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 administrative matters.

Miscellaneous

2.45 A judge shall ensure the fair conduct of the trial and inquire fully into any allegation made of a violation of the rights of a party or of a witness, including allegations 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 implement 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 promotion and protection of human rights.

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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 independent 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



Education of the Public Concerning the Law



Rights and Duties of Lawyers

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 internationally recognized civil or political rights.

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.

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

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3.12

3.13

3.14 3.15

3.16

3.17

3.18

3.19

3.20

Appendix IV established rules, standards and ethics of his profession without any inhibition or pressure from the authorities or the public. 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. No lawyer shall suffer or be threatened with penal, civil, administrative, economic or other sanctions by reason of his having advised or represented any client or client’s cause. No court or administrative authoirty shall refuse to recognize the right of a lawyer to appear before it for his client. 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 participation of a judge in a particular case, or to the conduct of a trial or hearing. 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. Save as provided in these principles, a lawyer shall enjoy civil and penal immunity 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 administrative authority. 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. Lawyers shall have all such other facilities and privileges as are necessary to fulfill their professional responsibilities effectively, including: (a) absolute confidentiality 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. 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 matters 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

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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



The Bar Association



Function of the Bar Association

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 service 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 remuneration and enjoy full guarantees of their professional independence in particular by: − the direction of such programmes or organizations being entrusted to an independent board, composed mainly or entirely of members of the profession, 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.

3.25 There shall be established in each jurisdiction one or more independent and selfgoverning 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.

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;

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(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 competent, 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 application 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 assistance to a member of his family in appropriate cases; (k) to affiliate with, and participate in, the activities of international organizations 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: i) any search of his person or property, (ii) any seizure of documents in his possessions, and (iii) any decision to take proceedings 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 nominee, 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 disciplinary proceedings against lawyers on its own initiative or at the request of a litigant. Although no court or public authority shall itself take disciplinary

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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 disciplinary committee established by the Bar Association. 3.33 An appeal shall lie from a decision of the disciplinary committee to an appropriate appellate body. 3.34 Disciplinary proceedings shall be conducted with full observance of the requirements of fair and proper procedure, in the light of the principles expressed in this declaration.

iv

Jurors



Selection of Prospective Jurors



Selection of a Particular Jury

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 corrective 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 therefor, 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.

4.09 Examination of prospective jurors shall be limited to matters relevant to determining whether to remove a juror for cause, and to exercising peremptory challenges.

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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 determination 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



Jury Consideration and Deliberations

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 understandable, 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.

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, reasons for their decisions. 4.24 (a) A jury shall be sequestered only for the purpose of insulating its members from improper information or influence. (b) Standard procedures shall be promulgated to make certain that the inconvenience and discomfort of the sequestered jurors are minimized.

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467

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 subject-matter under consideration. 5.02 In some cases, the assessor shares with his legally-trained colleague, responsibility 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 remuneration and conditions of service. 5.07 Before commencing his duties, the assessor shall take an oath or affirmation of office.



Exercise of Mandate



Powers and Immunity

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.

5.13 The assessor shall be vested with the authority, immunity and powers necessary to carry out his duties.

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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 incapacity 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) (ii) (iii) (iv) (v)

The International Judges (led by Judge Oxner and Batonnier Pettiti); The National Judges (led by Justice Gonthier and Shimon Shetreet); The Lawyers (led by Battonier Louis Phillippe de Grandpre, and Debo Akande); The Jury (led by Chief Justice William Sinclair and Mr. James Parkison); 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

MONTREAL Declaration on the Independence of Justice



Commissions of Montreal Conference



Commission of International Judges



Commission of National Judges



Commission of Lawyers



Commission of the Jury



Commission of the Assessors

Chairs: Judge Oxner and Batonnier Pettiti

Chairs: Justice Gonthier and Professor Shimon Shetreet

Chairs: Battonier Louis Phillippe de Grandpre, and Debo Akande

Chairs: Chief Justice William Sinclair and Mr. James Parkison

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

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Index Academic lawyers 160 Accountability, judicial 46, 48, 54, 60 Explanatory form of accountability 52–53 “Social” accountability 55 Accountability through legal reasoning 50, 55 Administration of justice 49, 64, 75, 157, 183, 281, 384, 395, 414, 444 “Administrative” justice compared to courts 70 defined 69 features 69 objections to terminology 68 not inquisitorial 72 Alien rights 213, 222, 320, 331 Aliens and minorities—disadvantages & protections 89, 91, 151, 155, 242, 331–34, 337 Al-Qaeda 97, 109, 330, 349 Arbitration 233 Arbitrator 270 Armed conflict 110, 134 Attacks on courts 123 Attorney-General (England) 159 Attorney-General, the role of 116, 125–26 Authorisation for Use of Military Force 98, 110, 330 Bar Associations support of individual lawyers 159 international role 160 defending judicial independence 160 support of individual judges 159 Benefits of courts 257 Bill of Rights 116, 124, 308 Black sites 103, 139, 328 Brazilian Constitution 166 Brussels i, ia, iia Regulations (juris. & enforcement) 265 Capacity to conduct proceedings 266 Central Intelligence Agency 100, 328 Chaim Perelman 45 Charter of Fundamental Rights, eu 24, 26, 387

Checks and balances 59, 103, 229 Citizenship 263, 319 Civil arrest 167 Civil liability for judicial acts 272 Civil rights and obligations 70, 99, 269, 350 Conflict of interest 148 Composition of the bench 269 Conseil d’Etat 30, 53 Constitutional Court xvi, 34, 39, 64, 90, 105, 162–65, 166, 174–76, 275–76, 387 Constitutional interpretation 195, 222 Constitutional pluralism 164 Constitutional Reform Act 2005 159 Conventionality control 166 Corruption 141, 230, 284, 303 Council of Europe 5, 21, 143, 183, 202, 377, 381, 415 Counter-terrorism 94 Criminal law model 94, 107, 113 Cultural biases of judges 154, 344 Defending judiciary 159 Discrimination against “others” 91, 152, 337 Disqualification 150, 364–66 (see Appendices) Due process 100, 106, 114 Enemy combatants 107, 111 Enforcement 135 Enforcement of foreign judgments 268 eu Arbitration Convention 315 European Commission for Efficiency of Justice (“cepej”) 50 European Convention on Human Rights (echr) 20, 66, 70, 202, 247, 269, 321 European Court of Human Rights (ECtHR)  20, 88, 105, 132, 163, 201, 227, 269, 329, 449 European Court of Justice (ecj) 23, 165, 267, 272 European Union 20, 95, 164, 181, 247, 265, 272 Exequatur proceeding 268 Expatriate judges 279 Extradition 101, 109 Extra-legalism 95

Index Extraordinary rendition 94, 101, 109, 327 Extraterritorial jurisdiction 133, 327 Failed States 101 Federalism 206 Financial liability of the judge (Italy) 274 First-tier Tribunal 71 Forced labour 130, 263, 324 Foreign law in us Courts 195, 219 Foreign parties 151, 233, 241, 263, 334 Foreigner 263 Forum selection 235 Freedom of political communication 117 Functioning of the eu Treaty 264, 270 Fundamental rights 23, 67, 78, 102, 144, 166

471 International courts ix, 25, 92, 163–64, 277, 339, 367, 400, 401, 413, 451–54 International law 95–99, 106–114, 130, 137, 143, 163, 195, 199, 205–18, 219, 222–23, 231, 240, 263, 266, 272, 276, 327, 331–33, 361, 367, 377, 381, 400 et seq. International jurisdiction 263–66 Israeli Supreme Court 82, 96, 112

Jihad 96, 110–115, 209, 351 Judical appointment 3, 11, 27, 41, 48, 53, 64, 66, 72, 148, 152–55, 160, 170–91, 353, 373, 375 [see appendices] Judicial administration 25, 50, 173 [see appendices] Judicial Appointments Commission 48, 53, 71, 160 Gaps in law 77 Judicial creativity 116–26 Geneva Conventions 111, 217 Judicial discipline 37, 48, 65, 178, 278 Gesetz des Wiedersehen 47 [see appendices] Global Code of Judicial Ethics 5, 364, Judicial ethics; tradition 371–373 370, 414 Judicial Independence & World Peace Global war 32, 94 (jiwp) ix conferences & actions xi Habeas corpus 108, 166, 328, 456 conferences in this volume xiii Her Majesty’s Courts and Tribunals Service  impact in adjudicated cases xvi 71 Judicial independence; elements 3, 25, 191 High Court of Australia 116–126 individual; tenure & salary 25, 39, Hong Kong—future of 296 177–179 Special Admistrative Region institutional, collective 3, 25, 272 (hksar) 279, 288–208 internal 393, 343 non-national judges 279 impartiality 31, 37, 44, 49, 57, 59, 65, 67, Human Rights Act 1998 28, 55, 162, 247 90, 150, 153–55, 242, 256, 263, 269, 275– Human rights (see also udhr; Bill of Rights)  76, 303, 344, 364–69 [see appendices] ix, xv, 3–8, 20–44, 66, 70, 94, 113, 116, reflection of society x, 3 119, 122, 132, 143, 150, 164, 166–68, 200, freedom of interpretation 47, 77 214, 292, 309, 321, 351, 366, 382 [and freedom of expression 36–39, 44, 67, 160, throughout Appendices] 390, 402, 434 Humanitarian laws 110 political interference 161–91 Judicial independence; factors Immigrants 92, 334 influencing 61, 116, 169 Immigration 69, 131, 151, 218, 298, 319, 333, historical evolution 61 340, 346, 351, cultural factors 151, 169–91 Implied rights (see Human Rights) threats 124, 179 Independent adjudication ix, 70–71, 277, 401 proximity to politics 62, 66, 169 Indirect discrimination 247, 264, 269 Judicial independence; specific countries Individual rights (see Human Rights) or effects Institutional Law on the Court of Eastern Europe 36 Arbitration 34 fascism 63 Intelligence 97, 103–06, 331,

472 Judicial independence; specific countries or effects (cont.) former communist and transition regimes 177, 305 Italy 61 lustration (purging) 38 Russia 37 Ukraine 37 Judicial liability 274 Judicial oath 117, 375 Judicial responsibility 277 Judicial selection (see judicial appointment) 148, 160 conflicts of interest 149 Judicial speech 39, 67 judicial wrongs 272 post-legislative scrutiny 54 pre-legislative scrutiny 54 public comments 57–58 Law of war (loac) 111–12, 135, 217, 330 Lay judges 275 Leggatt Report (2001) 71 Liability of judge 274 Lisbon Treaty 23, 44, 164, 359–60, 444 Litigation and arbitration 70, 123, 158, 233–61, 266, 315–17, 365 Limits of law moral precepts 79–85 set by law itself 85–87 set by developments 76–79 Lord Chancellor/ Secy of State for Justice (uk) 159 Lugano Convention Jurisdiction and Enforcement 247, 265 Managerial drive 50 Maastricht Treaty 23 Media, impacts & participation 42, 55, 123, 158, 253, 295, 336, 374, 390, 416 Mehadrin Line 83 Middle East 97, 336 Montesquieu 24, 47 Moral boundaries & law 79–85 Multicultural society 151, 335 Multi-national taxing 313 National courts 151 National security 95–99, 106, 113, 329

Index Native title 116, 123 Non-Article iii judge 70 Nonjudicial adjudication 69 Nonprofessional judges 153 Ordination 266 Pact of San José 166–67 Performance indicators 50 Peter Smith, J 161 Piracy 140, 214 Proportionality 96, 122, 199 Public confidence xvi, 49, 50–55, 123–26, 159, 303, 373, 375 [see appendices] Quality of justice 51 Reasonably appropriate and adapted test  122, 125 Recusal 34, 47, 159, 278 Religious law 79, 210, 212, 231 Religious symbols 88 Rendition 94–95, 101–09, 112, 327 Residence 97, 249, 264–68, 337–38, 421 Rights 222–239 fair trial 36, 51, 381 freedom of expression 36–39, 44, 160 [see appendices] peaceful assembly 41 ethnic & cultural protections 22, 88–93 Rule of law ix, 75, 114, 130, 146 Secy of State for Justice (uk) 159 Security of Costs 267 Separation of powers 3, 24, 229 Service of documents 268 Social science in courts 219–222 Sovereignty 29, 107, 109, 114, 116, 135, 143, 164, 208, 280, 285–310 Standards of Judicial Independence (see Appendices) 5 Mt. Scopus 25, 45 New Delhi 47 Montreal Declaration 27, 359 State liability for judicial acts 272–74 State secrets privilege 105–06, 328 Supra-national courts 162

473

Index Targeted killings 94–114 Technologies & change 77 organ donation 78 intellectual property 75 Terrorism 32, 77–79, 94–115, 137, 141, 163, 214, 327, 331, 340 Terrorist group or organisation 98, 104, 106, 109 Thomas Becket 47 Top courts 162 relations with supranational courts 163 Torture 32, 101–13, 139, 212–15, 280, 327–32 Trafficking 130–34, 140, 324–27, 338, 349 Transfer pricing 313

Transnational litigation 239, 241, 244 Tribunals, Courts and Enforcement Act 2007  71 un Charter 96, 110 Unified Tribunal System 71 Universal Declaration of Human Rights 22, 26, 32, 144, 167, 334, 414, 453 Unlawful enemy combatants 112 Unreasonable litigation 266 us Constitution 71, 94, 99, 103, 117, 321, 386 us Supreme Court 104, 110, 195, 219 War model 78, 94, 107, 109, 113