The Culture of Judicial Independence : Rule of Law and World Peace [1 ed.] 9789004257818, 9789004257801

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The Culture of Judicial Independence

The Culture of Judicial Independence Rule of Law and World Peace Edited by

Shimon Shetreet

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data The Culture of judicial independence : rule of law and world peace / Edited by Shimon Shetreet.   p. cm.  Includes bibliographical references and index.  ISBN 978-90-04-25780-1 (hardback : alk. paper) -- ISBN 978-90-04-25781-8 (e-book : alk. paper) 1. Judicial independence. 2. Rule of law. 3. Peace. I. Shetreet, Shimon, author editor of compilation.  K3367.C86 2014  340’.11--dc23               2014012724

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see brill.com/brill-typeface. isbn 978-90-04-25780-1 (hardback) isbn 978-90-04-25781-8 (e-book) Copyright 2014 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Global Oriental 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.

Contents Table of Cases ix List of Legislation xxiii Preface xxxiii Acknowledgements xxxviii List of Contributors xl

General

Part I

Chapter One General Introduction 3 Chapter Two Judicial Independence, Liberty, Democracy and International Economy 14 Shimon Shetreet Chapter Three Accountability of Judicial Service Commissions to the Law: The Case of South Africa 48 Christopher Forsyth Chapter Four Reflections on Judicial Independence: Past Achievements and Future Agenda 65 Marcel Storme

Part II Judicial Independence, Human Rights, Democracy, the Rule of Law and World Peace Chapter Five Judging the Independence and Integrity of Foreign Courts 73 Neil Andrews Chapter Six The Protection of Religious Liberty in the United States: The Supreme Court Jurisprudence 89 Maimon Schwarzschild Chapter Seven The Culture of Peace and Human Rights: The Development of Human Rights Protection in the European Union 99 Shimon Shetreet Chapter Eight Globalization of Human Rights and Mutual Influence between Courts: The Innovative Reverse Path of the Right to the Truth 107 Arianna Vedaschi

vi

contents

Part III Constitutional Position of Top Courts Chapter Nine The Independence of the Judiciary in Belgium 137 Marc Bossuyt Chapter Ten On Fairness 144 Sir Louis Blom-Cooper QC Chapter Eleven The Conceptual Definition of the Constitutional Court in Italy 154 Giuseppe Franco Ferrari

Part IV Relations Between the Judiciary and the Other Branches of Government Chapter Twelve The Scope of Judicial Review and the Rule of Law: Between Judicial Restraint and Judicial Activism 181 Sir Louis Blom-Cooper QC Chapter Thirteen Entering the Political Thicket: The Role of the Judiciary as an Arbiter in Relation to Making and Implementation of Public Policy 200 Anton Cooray Chapter Fourteen On Judges Writing Commentaries: Is It Appropriate for a Judge to Engage in Outside Activities? 217 Fryderyk Zoll Chapter Fifteen Procedural Guarantees of Independence and Impartiality of Judges in Russia 223 Sergey Nikitin Chapter Sixteen The Relationship of the Judiciary and Legislature in Australia 232 HP Lee

Part V Impartiality of the Judicial Process Chapter Seventeen Relations between the Court and the Parties in the Managerial Age 253 Neil Andrews

contents

vii

Chapter Eighteen Independence of Court Proceedings: Impartiality and Fairness 272 Dmitry Magonya Chapter Nineteen Recusal of Judges: A Commonwealth Survey of the Applicable Tests 280 Cyrus Das Chapter Twenty The Status of Codes of Judicial Conduct in Comparative Perspectives 292 Shimon Shetreet

Part VI International Courts and Cross Country Issues Chapter Twenty-One Judicial Independence in the Context of International Investment Law 301 Guiguo Wang Chapter Twenty-Two Judicial Impartiality in International Courts: Of Law and Corruption 318 Wayne McCormack Chapter Twenty-Three Arbitral Awards and Errors of English Law: Refining The Law-Making Function of The Judicial Appeal System 340 Neil Andrews Chapter Twenty-Four The Influence of the European Convention on Human Rights on Judicial Independence in Criminal Procedural Law in Switzerland 363 Gian Andrea Danuser

Part VII Judicial Selection Chapter Twenty-Five Recent Developments in Judicial Elections in the United States and their Impact on Impartiality of Judges 373 Chandra R. de Silva Chapter Twenty-Six Culture and Judicial Independence in Civil Procedure 387 Dmitry Maleshin

viii

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Chapter Twenty-Seven Constitutional Adjudication and Appointments to the uk Supreme Court 396 Sophie Turenne Chapter Twenty-Eight Appointment of Judges and Legal Responsibility of Judges: Guarantees of Independence in Russia 411 Sergey Nikitin Chapter Twenty-Nine The Bumpy Road Towards Judicial Independence: Past, Present and Future Prospects of Mainland China 419 Liu Hao Chapter Thirty Administrative Justice System in Italy 436 Giuseppe Franco Ferrari

Part VIII International Standards of Judicial Independence Chapter Thirty-One Judicial Independence and the Three Highest Courts in Austria 445 Walter H. Rechberger Chapter Thirty-Two Analysis of the Amendments to the Mt. Scopus International Standards of Judicial Independence  465 Shimon Shetreet

Part IX Text of the International Standards of Judicial Independence Appendix I – Mount Scopus International Standards of Judicial Independence 487 Appendix II – The New Delhi Code of Minimum Standards of Judicial Independence (adopted by the IBA New Delhi Convention 1982) 512 Appendix III – Universal Declaration on the Independence of Justice 524 In Memoriam: The Late HE Markus Buechel Former Prime Minister of the Principality of Liechtenstein 545 Index 549

Table of Cases A and others v. Secretary of State for the Home Department (House of Lords), [2004] UKHL 56 29 A & Others v. uk, and see the uk Supreme Court case Secretary of State for the Home Department v. AF & Others (2009) 475 A v. Secretary of the State for the Home Department [2005] 2 ac 68, 102 195 A v. United Kingdom (Application No. 3455/05), bailii: [2009] echr 301 475 ab Kurt Kellermann v. Sweden (26 October 2004) 139 Abiola v. Federation of Nigeria [1995] 3 l.r.c. 468 288 Acting Chairperson: Judicial Service Commission v. The Premier of the Western Cape Providence [2011] zasca 53 61 Adams v. Cape Industries [1990] 1 Ch. 433, c.a. 83 aes Ust-Kamenogorsk Hydrapower Plant llp v. Ust-Kamenogorsk Hydropower Plant jsc [2013] uksc 35; [2013] 1 w.l.r. 1889 359 Agrokompleks v. Ukraine (Application No. 23465/03) (unreported) given 6 October 2011, E.Ct.H.R. 80 Aguinda, re 241 F.3d 194, 201 (c.a.2 2001) 288 Agurdino Srl. V. Moldova (7359/06) [2012] stc 1; [2011] sti 3266, E.Ct.H.R. 79 ak Investment cjsc v. Kyrgyz Mobil Tel Ltd. [2011] ukpc 7, [2011] 1c.l.c. 205, p.c. 76 Akhmadova and Sadulayeva v. Russia no. 40464/02, 10 May 2007 121 Aksoy v. Turkey no. 21987/93 echr 1996-VI 120, 131 Aktas v. Adepta [2011] qb 894, c.a. 265 Al Karbuteli v. Minister of Defense 2 p.d. 5, h.c. 7/48 29 Al-Koronky v. Time-Life Entertainment Group ltd. [2006] ewca Civ. 1123, [2007] 1 Costs l.r. 57, c.a. 84 Allianz SpA etc. v. West Tankers (C-185/070 [2009] 1 a.c. 1138, e.c.j. 359 Almonacid-Arellano et al. v. Chile, Preliminary Objection, Merits, Reparations and Costs, Judgment of September 26, 2006, Series C No. 154 126 amec Civil Engineering Ltd. v. Secretary of State for Transport [2005] ewca Civ. 291, [2005] 1 w.l.r. 2339 350, 352 Amminstrazione delle Finanze dello Stato v. Simmenthal [1978] e.c.r. 629, Case 106/77 398 Anzualdo Castro v. Peru, Preliminary Objection, Merits, Reparations and Costs. Judgment of September 22, 2009. Series C No. 202 126 asm Shipping Ltd. of India v. ttmi Ltd. of England (‘The Amer Energy’) [2009] 1 Lloyd’s Rep. 293, Flaux J. 340 Association 21 December 1989 v. Romania no. 33810/07 and 18817/08, 24 May 2011 121 Astamirova and others v. Russia no. 27256/03, 29 February 2009 121

x

table of cases

Athletic Union of Constaninople v. National Basketball Association (No 2) [2002] ewca Civ 830, [2002] 1 w.l.r. 2863 [on s. 67(3)] and Virdee v. Virdi [2003] ewca Civ 41 [on s. 18(5)] Mousaka Inc v. Golden Seagull Maritime Inc [2002] 1 w.l.r. 395 347 Atlanta Decision, November 9, 1995 C-465/1993 169 Attorney-General v Jackson [2006] 1 ac 262 187 Attorney-General (nsw) v Trethowan (1931) 44 clr 394 234 Attorney-General (nsw) v Quin (1990) 170 clr 1 249 Auckland Casino Ltd v Casino Control Authority [1995] 1 nzlr 142 284 Austin v. Michigan Chamber of Commerce, 494 us 652 (1990) 377 Austrian Constitutional Court 05.10.1989, G 70/89, Nr. 12.185 457 Austrian Constitutional Court 12.10.1990, G 73/89 460 Austrian Supreme Court 06.06.1978 4 Ob 16/78 = sz 51/75 = ArbSlg 9.703 463 Austrian Supreme Court 08.04.1997, 1 Ob 2123/96d 461 Austrian Supreme Court 17.10.1995, 1 Ob 612/95 460 Austrian Supreme Court Legal Information System RS0008880 463 Austrian Supreme Court Legal Information System RS0040182 and RS0005394 461 Australian Building Construction Employees’ and Builders Labourers’ Federation v Commonwealth (1986) 161 clr 88 236 Australian Capital Television Pty Ltd v Commonwealth (actv case) (1992) 177 clr 106 241 Australian Communist Party v Commonwealth (1951) 83 clr 1 232 axa General Insurance Ltd v. Lord Advocate [2011] u.k.s.c. 46 400 Baker v Carr 369 us 186 (1962) 200 Bámaca-Velásquez v. Guatemala Merits. Judgment of November 25, 2000. Series C No. 70 123 Bámaca-Velásquez v. Guatemala Reparations and Costs. Judgment of February 22, 2002. Series C No. 91 130 Barrios Altos .Merits. Judgment of March 14, 2001. Series C No. 237 127 Baysayeva v. Russia no. 74237/01, 5 April 2007 121 Beit Sourik Village Council v. The Government of Israel pd 59(5) 807(2004), hcj 2056/04 30 Belgian Court of Cessasion Decision, 19 February 2010, Arr. Cass., 2010, n°. 114, pages 489–495 142 bge 112 Ia 290, 294; bge 113 Ia 172 ff; bge 114 Ia 50 ff 369 bge 114 Ia 54, 56, 60, 65; Swiss Code of Criminal Procedure of Fifth Oktober 2007, sr 312.0 369 Bhd & Anor v Raphael Pura (High Court) Civil Suit No. S2-23-42 (1996) xxxvii Blake v. Guatemala, Merits. Judgment of January 24, 1998. Series C No. 36 122, 128 Blanco-Romero et al. v. Venezuela. Merits, Reparations and Costs. Judgment of November 28, 2005. Series C No. 138 124, 131

table of cases

xi

blct (13096) Ltd. v. J. Sainsbury plc [2003] ewca Civ 884, [2004] 1 c.l.c. 24; [2004] 2 P. & c.r. 3 348, 349 Bodil Lindqvist, November 3, 2003 C-101/01 169 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 clr 651 243 Boumediene v. Bush, 553 u.s. 723 (2008) 28 Broken Hill Proprietary v Dagi [1996] 2 vr 117 241 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland (45036/98) (2006) 42 ehrr 1; 19 bhrc 299, E.Ct.H.R. 85 Buckley and others (Sinn Fein) v Attorney-General and another [1950] 1 ir 67, 81 186 Buckley v. Valeo, 424 us 1 (1976) 376 Burton v Honan (1952) 86 clr 169 233 Buyuk Camlica Shipping Trading and Industry Co Inc v. Progress Bulk Carriers Ltd. [2010] ewhc 442 (Comm), [2011] Bus. l.r. D99, Gavin Kealey q.c. (Deputy High Ct. Judge) 342, 343 C v. D [2007] ewca Civ 1282, [2008] 1 Lloyd’s Rep. 239 355 Çakici v. Turkey no. 23657/94 echr 1999-IV 120 Campbell and Fell (28 June 1984) 139 Canada (Prime Minister) v. Khadr, 2010 scc 3 28 Canadian Pacific Ltd. v. Matsqui Indian Band [1995] 122 d.l.r. (4th) 129 285 Cantoral-Huamaní and García-Santa Cruz v. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of July 10, 2007. Series C No. 167 126, 131 Caperton v. A.T. Massey Coal Co, 556 us 868 (2009) 382 Case Concerning Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) 2008 i.c.j. 12 (May 23) 324 Cass, Grand Chamber, dec. no. 8987/2009 440 Cass, Grand Chamber, ord. 27336 of 18.5.2008 440 Castillo Paez v. Perù. Judgment of November 3, 1997. Series C No. 34 130 Castillo Paez v. Perù. Reparations and Costs. Judgment of November 27, 1998. Series C No. 43 130 Cetelem s.a. v. Roust Holdings Ltd. [2005] ewca Civ 618, [2005] 1 w.l.r. 3555 344, 347 cgu International Insurance plc v. Astra Zeneca Insurance Co Ltd. [2006] ewca Civ 1340, [2007] Bus. l.r. 162; [2007] 1 All e.r. (Comm) 501; [2007] 1 Lloyd’s Rep. 142; [2007] c.p. Rep. 4; [2006] 2 c.l.c. 441; [2006] h.r.l.r. 43 344, 346, 348, 349 Chandler v. Judicial Council of the Tenth Circuit of the us, 398 us 74 24 Charkaoui v. Canada, 2007 scc 9 28 Chartbrook Ltd. v. Persimmon Homes Ltd. [2009] ukhl 38; [2009] 1 a.c. 1001 352 Cheney v. us District Court of Columbia 541 u.s. 913 [2004] 288 Cherney v. Deripaska [2008] ewhc 1530 (Comm), [2009] ewca Civ 849 276

xii

table of cases

Cherney v. Deripaska (No. 2) [2009] ewca Civ 849, [2009] 2 c.l.c. 408 84 Chevron Corporation (usa) and Texaco Petroleum Company (usa) v. Ecuador, uncitral Arbitration, Final Award, 31 August 2011 317 Chief Constable of the North Wales Police v Evans [1982] 1 wlr 1155, hl 207 Chiovenda, Satta; Civil Cassation, dec. no.21585 of 2009 439 Chu Hoi Dick & Another v Secretary of Home Affairs [2007] hkec 1471 211 Chu Kheng Lim v Minister for Immigration (1992) 176 clr 1 236 Chu Woan Chyi & Others v Director of Immigration [2007] hkec 553 211 Chu Yee Wah v Director of Environmental Protection [2011] 5 hklrd 469, ca 208 Citizens United v. Federal Election Commission, 558 u.s. 50 (2010) 375, 377 Clarke v. Marlborough Fine Art (London) Ltd. [2002] 1 w.l.r. 1731 256 Clayton v Heffron (1960) 105 clr 214 234 Clean Air Foundation Ltd & Another v Government of hksar [2007] hkec 1356 202, 207 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  xxxvii Clyde & Co v. Bates van Winkelhof [2011] ewhc 668 (qb), Slade J 270 Colegrove v Green 328 us 549 (1946) 200 Contreras et al. v. El Salvador. Merits, Reparations and Costs. Judgment of 31 August, 2011. Series C No. 232 122 Copeland v. Smith (Practice Note) [2000] 1 w.l.r. 1371, c.a. 257 Council of Civil Service Unions v Minister of State for Civil Service [1985] ac 374 30, 205 Council of State, ch. VI, dec of 17.6.2003, no. 3447 440 cpio (Central Public Information Officer) Supreme Court v. Subhash Chandra Agrawal CLXII Delhi Law Times 135 (2009 ) Per Judge S. Ravindra Baht 294 Cyprus v. Turkey no. 25781/94 echr 2001-IV 129 D v Director of Immigration [2013] hkec 428, cfa 166 Daly v Secretary of State for the Home Department; [2001] 3 All e.r. 433 [2001] 2 wlr 1622, hl 206 Dato’ Tan Heng Chiew v. Tan Kim Hor [2006] 1 c.l.j. 577 283 Daventry District Council v. Daventry & District Housing Ltd. [2011] ewca Civ 1153, [2012] 1 w.l.r. 1333 353 Davis Contractors Ltd. v. Fareham u.d.c. [1956] a.c. 696, h.l. 360 Debled v. Belgium (22 September 1994) 139 De Cubber v Belgium, Merits, App no 9186/80, Case No 8/1983/64/99, A/86, (1985) 7 ehrr 236, [1984] echr 14, ihrl 48 (echr 1984), 26th October 1984, European 369 Decision of the Italian Constitutional Court, no. 272 of December 6, 2012 438 Demorca v. Opportunity Equity Parnters Ltd. [2007] 3 l.r.c. 1 p.c. 283 Dimes v. Grand Junction Canal [1852] 10 e.r. 301 284

table of cases

xiii

Durand y Ugarte. Merits. Judgment of August 16, 2000. Series C No. 68 127 Durand and Ugarte v. Peru. Reparations and Costs. Judgment of December 3, 2001. Series C No. 89 123 Durham Holdings v New South Wales (2001) 205 clr 399 241 Eastgate v Rozzoli (1990) 20 nswlr 188 234 Ebner v Official Trustee in Bankruptcy (M131 of 1999) xxxvii Egan v Willis (1998) 195 clr 424 233 Ellsberg v. Mitchell, us Court of Appeals for the District of Columbia Circuit (1986) 112 El-Masri v. Tenet 437 F. Supp. 2d (E.D.Va. 2006) 110 El-Masri v. the Former Yugoslav Republic of Macedonia [gc] no. 39630/09, 13 December 2012 107 El-Masri v. United States 479 F. 3d (4 Cir. 2007) 110 El-Masri v. United States 552 us 947 (2007), cert. denied 114 Employment Div. Dept of Human Resources v. Smith, 49 us 872 (1990) 93 English Churches Housing Group v. Shine [2004] ewca Civ 434 270 Erich Stauder v. City of Ulm, Sozialamt, Case 29/69 [1969] e.c.r. 41 (EUR-Lex) 102 Evan Rees et al v Richard Alfred Crane [Appeal From the Court of Appeal of Trinidad and Tobago], Privy Council, [1994] 2 ac 173 xxxvii Ex parte Pinochet Ugarte (No. 2), House of Lords, [1999] 1 All er 577 23 Farm Assist Limited (in liquidation) v. The Secretary of State for the Environment, Food and Rural Affairs (No. 2) (2009) [2009] ewhc 1102 (tcc), [2009] b.l.r. 399; 125 Con. l.r. 154 219 Federal Constitutional Court (BVerfG), decision from 30 June 2009, 1 BvR 893/09 219 Fillipini v. San Marino (dec. 26 August 2003) 139 Findlay v. The United Kingdom, 1997-I, no. 30 47 Fisher v Austria (37950/97) [2001] echr 348 (29 May 2001) 476 Flaminio Costa v. enel [1964] e.c.r. 585, Case 6/64 398 Fortis, Hof von Cassatie von Belgie,, P.11.1750.W. 142 Freedom Under Law v. jsc (52/2011) [2011] zasca 59 55 Frontier Petroleum Services Ltd. v.The Czech Republic, uncitral, Final Award, 12 November 2010 317 Funnell v Whangarei Schools Board [1973] ac 660 at 679 146 gea Group Aktiengesellschaft v. Ukraine, icsid Case No. ARB/08/16, Award, 31 March 2011 310 Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011. Series C No. 221 124, 131 Geogas sa v. Trammo Gas Ltd. (‘The Baleares’) [1993] 1 Lloyd’s Rep. 215, c.a. 355 German Federal Constitutional Court, Unterhaltspflicht bei fehlgeschlagener Sterilisation oder Fchlerhafter genetischer Beratung, njw 1998, 519 460

xiv

table of cases 

German Federal Court (bgh), decision from 13. February 1995,AnwZ (B) 77/94, in: njw-rr 1995, p. 888 219 German Federal Court (bgh), decision from 10. October 2011, AnwZ (B) 10/10, in: njw 2012, p. 615 219 Ghaidan v. Godin-Mendoza [2004] u.k.h.l. 30 398 Goiburú et al. v. Paraguay. Merits, Reparations and Costs. Judgment of September 22, 2006. Series C No. 153 131 Goldberg v. Kelly, 397 u.s. 254 (1970) 163 Goldman v Weinberger, 475 us 503 (1986) 95 Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, Objections, Merits, Reparations and Costs. Judgment of November 24, 2010. Series C No. 219 123, 131 Gomillion v. Lightfoot 364 us 339 (1960) 200 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 us 418 (2006) 93 Government of usa v. Montgomery (No. 2) [2004] ukhl 37, [2004] 1 w.l.r. 2241, h.l. 85 Green v Blake [1948] ir 242 at 268 145 Grieves v. the United Kingdom (16 December 2003) 139 Halpern v. Halpern (No. 2) [2007] ewca Civ 291 269 Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) 28 Hamdi v. Rumsfeld, 542 us 507 (2004) 28 Helow v. Secretary of State for the Home Department [2008] 1 wlr 2416 23, 294 Henry Boot Construction Ltd. v. Alstom Combined Cycles Ltd. [2005] ewca Civ 814, [2005] 1 w.l.r. 3850 352 Herut, forum coexistence in the Nege 43 Hirst v. United Kingdom (No. 2) (74025/01) (2006) 42 e.h.r.r. 41 399 Hlophe v Constitutional Court of South Africa 57 Hlophe v Freedom Under Law and Others cct 46/11 61 Hlophe v Premier of the Western Cape Province 61 Hughes and Vale Pty Ltd v Gair (1954) 90 clr 203 234 Hysan Development Co Ltd v Town Planning Board [2012] hkec 1266 202 Iftakhar Khan v President of the Fiji Islands, HBJ007/00L (High Court of Fiji Lautoka) [2002] nzar 393; 2000 nzar lexis 90 xxxvii In re Inquiry Concerning a Judge (Young), 1999 ut 81 (1999) 329 Interfoto Picture Library Ltd. v. Stiletto Visual Programmes Ltd. [1989] q.b. 433, c.a. 357 Investors Compensation Scheme v. West Bromwich Building Society [1998] 1 w.l.r. 896, hl 352, 354 Imakayeva v. Russia no. 7615/02, 9 November 2006 121 ImpregiloS.p.A. v Islamic Republic of Pakistan, icsid Case No. ARB/03/3, Decision on Jurisdiction, 22 April 2005 306 Ipek v. Turkey no. 25760/94 echr 2004-II 120 Italian Constitutional Court 1956 no. 1 156

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Italian Constitutional Court 1960 no. 13 154 Italian Constitutional Court 1964 no. 14 168 Italian Constitutional Court 1965 no. 98 167 Italian Constitutional Court 1969 no. 15 163 Italian Constitutional Court 1970 nos. 68, 69, 70 172 Italian Constitutional Court 1971 nos. 64, 169 171 Italian Constitutional Court 1972 nos. 10, 199 171 Italian Constitutional Court 1973 nos. 34, 142, 176, 183 168, 171 Italian Constitutional Court 1974 nos. 17, 54, 259 169, 171 Italian Constitutional Court 1975 no. 251 171, 172 Italian Constitutional Court 1976 nos. 172, 202 171 Italian Constitutional Court 1978 no. 16 172 Italian Constitutional Court 1979 no. 117 171 Italian Constitutional Court 1981 no. 148 173 Italian Constitutional Court 1982 no. 28 173 Italian Constitutional Court 1983 nos. 215, 223, 226, 252 173 Italian Constitutional Court 1984 nos. 170, 245 168, 173 Italian Constitutional Court 1985 nos. 113, 164 168, 173 Italian Constitutional Court 1986 nos. 137, 178 173 Italian Constitutional Court 1987 nos. 266, 286, 616 173 Italian Constitutional Court 1988 nos. 146, 217 155, 173 Italian Constitutional Court 1989 nos. 232, 310 168, 173 Italian Constitutional Court 1991 nos. 47, 168, 243, 366 155, 165, 174 Italian Constitutional Court 1992 no. 379 174 Italian Constitutional Court 1993 nos. 10, 26, 38, 443, 462, 463, 464, 474, 478 163, 174 Italian Constitutional Court 1994 nos. 1, 2, 210, 218, 308, 384 168, 174 Italian Constitutional Court 1995 nos. 11, 94, 438, 509, 536 154, 168, 174 Italian Constitutional Court 1997 nos. 14, 42 174 Italian Constitutional Court 2000 nos. 10, 11, 31, 51 175, 176 Italian Constitutional Court 2001 nos. 73, 225 155, 165 Italian Constitutional Court 2002 nos. 263, 304, 306, 379, 407 165, 174, 175 Italian Constitutional Court 2003 nos. 41, 46, 303 175, 176 Italian Constitutional Court 2004 nos. 2, 14, 24, 25, 32, 120, 154, 272, 284, 347, 348, 372, 378, 379 164, 165, 174, 175 Italian Constitutional Court 2005 nos. 45, 49, 108,163, 245, 250, 252, 385, 432, 451, 469 164, 174, 175, 176 Italian Constitutional Court 2006 nos. 4, 12, 61, 80, 200, 209, 244, 280, 324, 394 164, 174, 175, 176 Italian Constitutional Court 2007 nos. 77, 182, 290, 348, 349, 367, 369, 378, 390, 392, 396, 430, 454, 464 163, 164, 166, 174, 175, 176

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Italian Constitutional Court 2008 nos. 15, 17, 154, 155, 214, 306 163, 174, 176 Italian Constitutional Court 2009 nos. 11, 106, 241, 311, 317 163, 175, 176 Italian Constitutional Court 2010 nos. 3, 188, 197, 211, 315 175, 176 Italian Constitutional Court 2011 nos. 24, 29, 174 176 Italian Constitutional Court 2013 nos. 1, 13, 168 165, 175 Itochu Corporation v. Johann M.K. Blumenthal gmbh & Co kg [2012] ewca Civ 996; [2013] 1 All e.r. (Comm) 504; [2012] 2 Lloyd’s Rep. 437; [2012] 2 c.l.c. 864 349 J. Nold, Kohlen- und Baustoffgrohandlung v. Commission, Case 4/73 [1974] ecr 491 103 Janowiec and others v. Russia no. 55508/07 and 29520/09, 16 April 2012 121 Johnston v. Chief Constable of the Royal Ulster Constabulary, Case C-222/84, [1986] ecr 1651 103 Joint Stock Co. Aeroflot - Russian Airlines v. Berezovsky [2012] ewhc 3017 (Ch), Floyd J. 80 Jones v Kaney [2011] 2 ac 398 190, 191, 192 Kable v Director of Public Prosecutions (1996) 181 clr 51 238, 248 Kadi, September 3, 2008 C-402/05 169 Kaya v. Turkey no. 22729/93 echr 1998-I 120, 128 Kirk v Industrial Relations Commission (nsw) (2010) 239 clr 531 243 Koya v State [1998] fjsc 2 284 Kuesinka v. Russia, App No. 29492/05n EurCtHR (2005) 36 Kurt v.Turkey no. 24276/94 echr 1998-III 120, 123 La Cantuta v. Peru. Merits, Reparations and Costs. Judgment of November 29, 2006. Series C No. 162 126, 131 Lai Tak Shing v Director of Home Affairs [2006] hkec 1873, ca 212 Langa v Hlophe, [2009] zasca 36 57 “Las Dos Erres” Massacre v. Guatemala. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 24, 2009. Series C No. 211 126 Leung v Secretary of Justice [2006 ] hkec 1763, ca. 208 Liselotte Hauer v. Land Rheinland-Pfalz, Case 44/79, [1979] ecr 3727 103 Liyanage v R [1967] 1 ac 259, pc 203 Liyanage v The Queen [1967] 1 ac 259 185, 203 Locabail Ltd. v. Bayfield Properties Ltd. & Associated cases [2000] 1 All e.r. 65 19, 285, 286 Local Government Board v Arlidge [1915] ac 120 at 138 145 Local Government Byelaws (Wales) Bill 2012 – Reference by the Attorney General for England and Wales [2012] u.k.s.c. 53 400 London Underground Ltd. v. Citylink Telecommunications Ltd. [2007] ewhc 1749 (tcc), [2007] 2 All e.r. (Comm) 694; [2007] blr 391; 114 Con lr 1, Ramsey J. 354, 355 Mail and Guardian Limited v Judicial Service Commission [2009] zagpjhc 29 59 Majlis Perbandaran Pulau Pinang v. Sykt. Sg. Glugor Cooperative [1999] 3 c.l.j. 65 283

table of cases

xvii

Malaysia v. Singapore, 2003 i.c.j. 324 Man O’War Station Ltd. v. Auckland City Council [2002] 3 n.z.l.r. 577 283 Mapiripán Massacre” v. Colombia. Merits, Reparations and Costs. Judgment of September 15, 2005. Series C No. 134 13 Markin v. Russia, Application No. 30078/06 476 Massacres of El Mozote and nearby places v. El Salvador. Merits, Reparations and Costs. Judgment of October 25, 2012. Series C No. 252 107, 131 Maxwell v Department of Trade and Industry [1974] 1 wlr 583 147 McCarthy ex p [1924] 1 kb 256 at 259, [1923] All er Rep 233 287 McConnell v. fec 540 u.s. 93 (2003) 377 McDonald v Cain [1953] vlr 411 234 McGraw-Hinds (Aust.) Pty Ltd v Smith (1979) 144 clr 633 232 McLean v Workers’ Union [1929] 1 Ch 602 at 624 144 m.d.u. v. Italy (dec. 28 January 2003) 139 Medcalf v. Mardell [2003] 1 a.c. 120, h.l. 257 Medova v. Russia; Art. 41 echr 131 Merchant International Co. Ltd. v. Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy [2012] ewca Civ 196, [2012] 1 w.l.r. 3036; [2012] 2 All e.r. (Comm) 1; [2012] c.p. Rep. 25; [2012] 1 c.l.c. 396, c.a. 73, 82 Mereworth v Ministry of Justice [2011] ewca Civ 1796, ca 204 Metropolitan Properties Ltd. v. Lannon [1968] 3 All e.r. 304 282 Miller v Miller [2006] ukhl 24, at para 4 153, 196 Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 clr 273 237 Mondev International v. United States, icsid Case No. ARB(AF)/99/2, Award, 11 October 2002 317 Morel v. France (6 June 2000) 139 Morris v. United Kingdom, Nr. 2689/65, European Court of Human Rights, 26.02.2002 449 National Federation of Independent Business v Sebelius us 567 us __ (2012) 201 Nationwide News Pty Ltd v Wills (1992) 177 clr 1 240 Neira Alegria Reparations and Costs .Judgment of September 19, 1996. Series C No. 29 126 Ng Ka Ling and Others v Director of Immigration [1999] 1 hkc 291, cfa 207 Ng Ngau Chai v Town Planning Board [2007] hkec 1207 208 Nicaragua v. United States, 1986 i.c.j. 323 Nicholas v The Queen (1998) 193 clr 173 236 Niemietz v. Germany, Series A, no. 251 (1992) 16 ehrr 97 104 Nold, May 14, 1974 C-4/73 169 North Range Shipping Ltd. v. Seatrans Shipping Corporation [2002] 1 w.l.r. 2397, ca 347

xviii

table of cases 

Nottinghamshire County Council v Secretary of State for the Environment [1986] 1 All er 199; [1986] ac 240, hl 184, 206 Office of Government Commerce v Information Commissioner [2008] ewhc 737 204 Omega Omega Spielhallen v. Bonn, Case C-36/02 [2004] ecr I-9609 103 Omnibridge Consulting Ltd. v. Clearsprings (Management) Ltd. [2004] ewhc 2276 (Comm), Siberry q.c. (deputy High Court judge) 343, 353 Orhan v. Turkey no. 25656/94 echr 2002-IV 120 Othman v. the United Kingdom, no. 8139/09, 17 January 2012 116 P v. S and Cornwall County Council, Case C-13/94 [1996] ecr I-02143 103 Pabla Ky v. Finland (22 June 2004) 139 Padovani (26 February 1993) 139 Pellegrini v. Italy [2002] ehrr 44, E.Ct.H.R. 85 Pennington Exparte [1975] 2 All e.r. 78 282 Piersack v. Belgium (Application No. 8692/79) [1982] echr 139, 276, 449 Pinochet No. 2 [1999] 1 All e.r. 577 282 Plaintiff S157/2002 [2003] hca 2, (2003) 211 clr 476 242 Plama v Bulgaria, Decision on Jurisdiction, 8 February 2005, paras.118-120 and 132; Bayindir v Pakistan 306 Plonim v. Minister of Defense 54 (1) p.d. 721, dnp 7048/97 29 Plymouth C.C. v. D. R. Jones (Yeovil) Ltd. [2005] ewhc 2356, Coulson J. 354 Polyukhovich v Commonwealth (1991) 172 clr 1 236 Porter v. Magill [2002] 1 All e.r. 465, [2001] 2 wlr 37 283 Porter v. Magill [2002] 2 ac 357 23, 294 Pravednaya v. Russia (Application No. 69529/01) 18 November 2004, E.Ct.H.R. 79 President of Republic of South Africa v. South African Rugby Football Union [1999] (4) s.a. 147 285 Pretty [2002] 1 ac 800 186 Procola v. Luxembourg, A326 14570/89 (1995) 47, 296 Public committee against torture in Israel v. State of Israel, h.c. 5100/94, 53(4) p.d. 617 29 Public committee against torture v. The Government of Israel, hcj 769/02 29 Public Prosecutor v Mohamed Ezam Bin Mohd Nor, Criminal Trial No 45-06 of 2001 [2001] 3 mlj 34 xxxvii R (Alconbury Development Ltd & Others) v Secretary of State for the Environment, Transport and the Regions [2001] ukhl 23; [2001] 2 wlr 1389, hl 210 R (Gentle and Another) v the Prime Minister [2006] ewca Civ 1689, ca 206 R (on the application of Chester) v. Secretary of State for Justice, u.k.s.c. 2012/0151 400 R ( Jackson) v. Attorney-General [2005] u.k.h.l. 56 400 R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] ukhrr 76 205

table of cases

xix

R (on the application of Brooks) v. Parole Board [2008] ca 47 R (on the application of Girling) v Parole Board and another [2007] qb 783, ca 203 R (on the application of Medical Justice) v. Secretary of State for the Home Department [2011] ewca Civ 269, [2011] 1 w.l.r. 2852 347 R (on the application of mm, Majid and Javed) v. Secretary of State for the Home Department [2013] ewhc 1900; [2013] wlr (D) 280 202 R (on the Application of Rob Evans) v Her Majesty’s Attorney General [2013] ewhc 1960 (Admin), 12] 204 R v Baker, 3 Burrows 1266 184 R. v. Barker, 1762, 3 Burr. 1265 184 R v Bow Street Metropolitan Stipendiary Magistrate et al, ex parte Pinochet Ugarte (No. 2) (House of Lords) [1999] 1 all er 577, 2 wlr 27 xxxvii, 23, 294 R v Chaytor [2011] 1 ac 684, sc 204 R v Davis [2008] 1 ac 1128, hl 203 R v dpp ex p Kebilene & Others [2000] 2 ac 326, hl 210 R v Foreign Secretary, Ex p Everett [1989] qb 811 206 R v. Gough (1993) 2 All e.r. 724 281 R v Hickman; Ex parte Fox and Clinton (1945) 70 clr 598 242 R v Hillingdon Borough Council, ex parte Puhlhofer 1986] ac 484 197, 198 R v Hinds [1977] ac 195 at 215 185, 203 R v Home Secretary, ex parte Fire Brigades Union [1995] 2 ac 513 188, 215 R v Kidman (1915) 20 clr 425 236 R v Loumoli (High Court) [1995] 2 nzlr 656, 1995 nzlr lexis 729 xxxvii R v Race Relations Board [1975] 1 wlr 1686 147 R v. S (rd) [1997] 118 c.c.c. (3d) 353 285 R v. Secretary of State for Foreign and Commonwealth Affairs [2009] ewca Civ 158, All er (D) 138 (Dec) 29 R v. Secretary of State for Foreign and Commonwealth Affairs [2010] ewca Civ 65, All ewhc 3316 er (D) 118 (Feb) 29 R v. Secretary of State for Transport, ex parte Factortame Ltd. 398 R v Smurthwaite [1994] 1 All er 898 152 R. v. Valente 2 c.c.c. (3d) 417, at 423 (1983) 498 Rasul v. Bush, 542 us 466 (2004) 28 Re A (Children) [2011] ewca Civ 1205, [2012] 1 w.l.r. 595; [2012] c.p. Rep. 6; [2012] 1 f.l.r. 134; [2012] 1 f.c.r. 379; [2012] Fam. Law 8, at [16] 257 Re hk [1967] 2 qb 617 146 Re Lowther and the Queen, Lowther v Prince Edward Island, 118 dlr (4d) 665 xxxvii Re Medicaments and Related Classes of Goods (No. 2) [2001] 1 wlr 700 23, 294 Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex part Lam (2003) 214 clr 1 237

xx

table of cases 

Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] ac 1136 234 Refah v. Turkey (Application nos. 41340/98, 41342/98, 41343/98 and 41344/98) 476 Republican Party v. Kelly, 63 F.Supp.2d (1999) 376 Republican Party of Minnesota v. White, 536 u.s. 765 (2002) 374, 375, 376 Republic Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005) 380 Rondel v Worsley 191 Roquette Fr‫ט‬res (2002) 104 Royal & Sun Alliance Insurance plc v. bae Systems (Operations) Ltd. [2008] ewhc 743 (Comm), [2008] 1 Lloyd’s Rep. 712; [2008] 1 c.l.c. 711; [2008] Bus. l.r. D127, Walker J. 345, 356, 360 Rutili v. Ministre de l’Interieur, Case 36/75 [1975] ecr 1219 103 SaipemS.p.A. v The People’s Republic of Bangladesh, icsid Case No. ARB/05/7, Decision on Jurisdiction, 21 March 2007 302, 303, 304, 305, 306, 311, 314, 315 SaipemS.p.A. v The People’s Republic of Bangladesh, icsid Case No. ARB/05/7, Award, 30 June 2009 302, 303, 304, 305, 306, 311, 314, 315 Salaman (dec. 22 June 2004) 139 SaliniCostruttori s.f.a. and Italstrade s.p.a. v. Kingdom of Morocco, icsid Case No. ARB/00/4, Decision on Jurisdiction, 16 July 2001 303 Scarlet Extended, November 24, 2011 C-70/10 169 Schiesser v. Switzerland 364, 367, 368 Schmidberger v. Austria, Case C-112/00 [2003] ecr I-5659 103 Schnitzer v. Chief Military Censor 42(4) p.d. 617, h.c. 680/88 29 Schuler (L) ag v. Wickman Machine Tool Sales Ltd. [1974] a.c. 235, H 360 Seepersad v Attorney General of Trinidad and Tobago [2013] 1 ac 659, pc 202 Serrano-Cruz Sisters v. El Salvador. Merits, Reparations and Costs. Judgment of March 1, 2005. Series C No. 120 130 Sheffield United Football Club Ltd. v. West Ham United Football Club plc [2008] ewhc 2855 (Comm); [2009] 1 Lloyd’s Rep. 167 359 Shell Egypt West Manzala GmbH v. Dana Gas Egypt Ltd. [2009] ewhc 2097 (Comm), Gloster J. 355, 360 Sherbert v. Verner, 374 us 398 (1963) 93 Slutsker v. Haron Investments Ltd & Anor [2012] ewhc 2539 (Ch) 276 Sofianopoulos v. Greece (dec. 12 December 2002) 139 SociétéOuestAfricaine des BétonsIndustriels (soabi) v Senegal, icsid Case No. ARB/82/1, Award, 25 February 1988 303 South African Commercial Catering Workers Union v. Irvin & Johnson Ltd. [2000] 3 s.a. 705 280 South Australia v Totani (2010) 242 clr 1 238 Southwark London Borough Council v. Kofi-Adu [2006] ewca Civ 281, [2006] hlr 33, c.a. 263

table of cases

xxi

Spring v Guardian Mutual Assurance [1995] 2 ac 296 191 Sramek v. Austria (gc, 22 October 1984) 139 State v Hodges, 695 s.w. 2d 171 (Tenn 1985) 95 Stauder, November 12, 1969 C29 169 Stephens v West Australian Newspapers (1994) 182 clr 211 241 Stewart v Secretary of State for Scotland, Extra Division, (1996) slt 1203 xxxvii Stoke on Trent City Council v B & Q [1991] 1 ac 49; [1990] 2 c.m.l.r. 377 208 Stork & Co. v. High Authority of the European Coal and Steel Community, Case 1/58, [1959] ecr 17 102 Street Children (Villagran-Morales et al.) v. Guatemala, Merits. Judgment of November 19, 1999. Series C No. 63 122 Stubbs v. ag [2010] 4 l.r.c. 103 283 Sub-Committee on Judicial Accountability v Union of India (Writ Petition (Civil) No. 491 of 1991) (1991) 4 scc 699 xxxvii Sumukan Ltd. v. Commonwealth Secretariat [2007] ewca Civ 243, [2007] Bus. l.r. 1075; [2007] 3 All e.r. 342; [2007] 2 All e.r. (Comm) 23; [2007] 2 Lloyd’s Rep. 87; [2007] 1 c.l.c. 282 345, 350, 351, 357 Summers v. Fairclough Homes Ltd [2012] uksc 26, [2012] 1 w.l.r. 2004 264 Surefire Systems Ltd. v. Guardian ecl Ltd. [2005] ewhc 1860 (tcc), [2005] b.l.r. 534, Jackson 355 Surratt and others v. Attorney General of Trinidad and Tobago [2008] 1 a.c. 655, pc 202 Suratt v Attorney-General of Trinidad and Tobago, [2007] ukpc 55 (uk) 44, 479 Sutherland v United Kingdom (The Times, 13 April 2001), echr 208 Tanrikulu v. Turkey no. 23763/94 echr 1999-IV 120 Taş v. Turkey no. 2396/94, 23 October 1999 129 Te Deum, The Court of Cassation, P.12.0730.N/1 140 The 19 Merchants v. Colombia. Merits, Reparations and Cost. Judgment of July 5, 2004. Series C No. 109 130, 131 Thint (Pty) Ltd and Zuma v National Director of Public Prosecutions [2008] zacc 13 (cc) 53 Thoburn v. Sunderland City Council [2002] e.w.h.c. 195 (Admin) 397 Thoman (10 June 1996) 139 Tikoniyaroi v. State [2012] 2 l.r.c. 280 284 Timurtas v. Turkey no. 23531/94 echr 2000-VI 120 Tiu Tojín v. Guatemala 126 Torch Offshore llc v. Cable Shipping Inc [2004] ewhc 787 (Comm), [2004] 2 All e.r. (Comm) 365; [2004] 2 Lloyd’s Rep. 446; [2004] c.l.c. 433, Cooke J. 342, 344 Transfield Shipping Inc v. Mercator, ‘The Achilleas’ [2008] ukhl 48, [2009] 1 a.c. 61 360 Trujillo-Oroza v. Bolivia. Reparations and Costs. Judgment of February 27, 2002. Series C No. 92 123

xxii

table of cases 

Trustees of Christian Brothers v Cardone (Federal Court) (1995) 130 alr 345 xxxvii Trustees of Edmond Stern Settlement v. Simon Levy [2007] ewhc 1187 (tcc), Judge Coulson qc 352 United States v. Danielczyk, 683 F. 3d 611 (2012) 382 United States v. Reynolds 345 us 1 (1953) 111 United States v. Will, 449 us 200 (1980) 492 Union de Pequenos Agricultores v Council of the European Union [2003] qb 893 209 Union Steamship Co of Australia Ltd v King (1988) 166 clr 1 240 Valente v the Queen (Supreme Court of Canada) 1985 scr Lexis 71 xxxvii Varnum v. Brien, 763 nw 2d 862 - Iowa: Supreme Court (2009) 384 Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4 122, 129, 130 Vernon v. Bosley (No. 2) [1999] q.b. 18, c.a. 256 Victoria v Commonwealth (pma case) (1975) 134 clr 81 235 Vladimir Berschader and MoïseBerschader v The Russian Federation; Ros Invest Co uk Ltd. v The Russian Federation; Siemens v Argentina 306 vtb Capital Plc v. Nutritek International Corp & Ors [2011] ewhc 1887 (Comm) 276 W v Registrar of Marriages [2013] hkec 716, cfa 210, 215 Webb v. R [1994] 122 a.l.r. 41 280, 281 West Coast Hote v. Parriash, 300 u.s. 379 (1937) 37 Wettstein v. Switzerland (21 December 2000) 139 White Industries Australia Limited v. The Republic of India, uncitral Case, Final Award, 30 November 2011 308 Wisconsin v. Yoder, 406 us 205 (1972) 93 Yoav Yitzhak v.Aharon Barak President of the Supreme Court 54(2), hcj 1622/00 P D 54 293 Yasa v. Turkey no. 22495/93 echr 1998-VI 120 Yukos Capital sarl v. ojsc Rosneft Oil Company [2011] ewhc 1461 (Comm) 276 Yukos Capital Sarl v. ojsc Rosneft Oil Co. [2012] ewca Civ 855, [2013] 1 All e.r. 223; [2013] 1 All er (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2 c.l.c. 549, c.a. (reversing Yukos Capital Sarl v. ojsc Rosneft Oil Co. [2011] ewhc 1461 (Comm), [2012] 1 All e.r. (Comm) 479; [2011] 2 Lloyd’s Rep. 443; [2011] 2 c.l.c. 129) 82 Zambrano Vélez et al. v. Ecuador. Merits, Reparations and Costs. Judgment of July 4, 2007. Series C No. 166 124, 127

Zuckerfabrik Decision, November 17, 1993 C-134/92 169

List of Legislation Australia Administrative Decisions (Effect of International Instrument) Bill 1995, s. 4, s. 4(a), s. 4(b) 237 Commonwealth of Australia Constitution Act, s. 7, s. 24, s. 57, s. 73, s. 75, s. 75(b) 241 Community Protection Act 1994 (nsw) 238 Con. l. 1/1948 157, 160 Con l. 1/1953 157 Con. l. 2/1967 170 Con. l. 1/1989 161 Con. l. 3/2001 159 Con. l. 87/1953 157 Constitution Act 1902 (nsw) s. 56 249 Constitution (Amendment) Act 1992 (No. 106) 249 Council of Chief Justices of Australia Guide to Judicial Conduct, 2002 22 Courts Legislation Amendment (Reserve Judicial Officers) Act 2013 (Vic) 248 Courts Legislation Amendment (Judicial Complaints) Act 2012 (Cth) 247 Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth) 248 House of Representatives Standing Order 75 and 78 246 Human Rights Act, 1998 18, 26, 40, 185, 187, 188, 190, 196, 206, 397, 398, 401, 407, 467, 474, 475 Industrial Relations Act 1996 (nsw) s. 179(1) 243 Inquiries Act 2005 147 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth) 247 Local Courts Act 1982 (nsw) 248 Section 8 (7A) of the Australian International Arbitration Act of 1974 146 Senate Standing Order 193(3) 246

Austria Austrian Administrative Court Act (erwaltungsgerichtshofgesetz 1985) 450 Austrian Act governing the Service of the Judiciary (Richter-und Staatsanwaltschftsdie nstgesetz) 448 Austrian Civil Code (Allgemeines Burgerliches Gesetzbuch) 458 Austrian Civil Procedure Code (Zivilprozessordmung) 459

xxiv

list of legislation

Austrian Federal Constitutional Act (Bundes-Verfassungsgesetz) 445 Austrian Federal Constitutional Act (Bundes-Verfassungsgesetz), Federal Gazette I 2013/114 456 Austrian Judicature Act (Jurisdiktionsnorm) 450 Austrian Supreme Court Act (Bundesgesetz uber den Obersten Gerichtshof) 450 Austrian Constitutional Court Act (Verfassungsgerichtshofgesetz 1953) 450

Belgium Article 828 of the Judicial Code 138 Belgian Constitution of 1831 137, 138

Canada Canadian Constitution Act, 1982 43 Canadian Judicial Council Ethical Principles for Judges, 1998 22

China Instruction of the Central Committee of Communist Party of China on Abolishing the Six Codes of the Kuomingtang and Confirming the Judicial Principles of the Liberated Areas (1949) 421 The Constitution of the People’s Republic of China (1954) 421, 422, 423, 432 The Organic Law of the People’s Courts (1954) 421 The Organic Law of the People’s Procuratorates (1954) 421 The Constitution of the People’s Republic of China (1975) 422 The Constitution of the People’s Republic of China (1982) 423, 424, 426, 427, 429, 431, 432, 433, 434 The Organic Law of the People’s Courts (1979) 422 The Organic Law of the People’s Courts (1983) 423 The Organic Law of the People’s Procuratorates (1983) 423 The Law of Judges (1995) 423, 429 The Law of Public Procurators (1995) 423 The Law of Supervision by the Standing Committees of the People’s Congresses at All Levels (2006) 427 The Organic Law of the Local People’s Congresses and the Local People’s Governments 427 The Rules of Procedure for the Standing Committee of the National People’s Congress (1987) 427

list of legislation

xxv

The Rules of Procedure for the National People’s Congress (1989) 427 The Law of Deputies to the National People’s Congress and to the Local People’s Congresses at Various Levels (1992) 428 Several Provisions Concerning the Power of the Court President and Presiding Judges in Examining and Verifying Cases 430



European Union

Art. 1(2)(d) of the eu Jurisdiction Regulation (Council Regulation 44/2001 of 22 December 2001 on ‘jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’) 76 Article 6 of the European Convention on Human Rights 40, 45, 73, 74, 79, 82–85, 147, 345, 357 Article 10 of the European Convention on Human Rights 151 ‘Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters’: Official Journal L. 136, 24/05/2008 P 0003 – 0008 267 European Convention on Human Rights 274 European Convention on Human Rights, Article 5 364, 365, 367, 368, 269 European Convention on Human Rights, Article 6 40, 45, 73, 74, 79, 82–85, 147, 345, 357, 369

France French Constitution 32 Constitutional Act no. 2008-724 of July 23, 2008 32

Germany German Code of Civil Procedure of 1877 388 German Civil Procedure Code (Zivilprozessordnung) 447 German Constitutional Act (Grundgesetz) 453, 457



Hong Kong

Air Pollution Control Ordinance (Hong Kong) 208 Antiquities and Monuments Ordinance (Hong Kong) 211

xxvi

list of legislation

Basic Law of the Hong Kong Special Administrative Region 206 Crimes Ordinance (Hong Kong) 208, 209 Hong Kong Bill of Rights Ordinance 207, 210 Immigration Ordinance (Hong Kong) 146 Matrimonial Causes Ordinance (Hong Kong) 210 Marriage Ordinance (Hong Kong) 210 Village Representative Elections Ordinance (Hong Kong) 212

Italy 26-38/1993; 14-42/1997 174 Art. 7 of the Administrative Procedure Code 440 Art. 112 of the Ad. Proc. Code; Lgs. d. no. 163/2006, art. 241; l.288 of December 24, 2007, Arts. 3.19 and 3.20 441 Article 103 of the 1948 Constitution 436 Dec 263/2003; Dec 379/2003 175 Dec 226/2008; Dec. 31-51/2000; 41-46/2003; 45-49/2005; 15-17/2008; 24-29/2011 176 Decisions 311 and 317 167 Delegation statute no. 69/2009 437 Instance decisions 1146/1988 155 Legislative decree no. 28/2010 437 Legislative decree no. 28/2010, Article 5.1 438 Legislative decree no. 53/2010 441 Legislative decree no. 104/2010 437 Legislative decree no. 104/2010, Article 6.2 439 Legislative decree no. 104/2010, Article 12 439 Ord. 103/2008; Dec. 14 May 1974 C-4/73; Dec. 12 November 1969 C-29/69; Dec. 17 November 1993, C-134/92; Dec. 9 November 1995, C-465/93 169 1/1948 l. Court Constitutional Italian Constitutional Court l. 1/1953 157 Italian Constitutional Court l. 2/1967 170 Italian Constitutional Court l. 1/1989 161 Italian Constitutional Court l. 3/2001 159 Italian Constitutional Court l. 87/1953 157



Italian Constitutional Court Ordinances

Italian Constitutional Court Ordinance 2005 nos. 31, 353, 354, 404 175 Italian Constitutional Court Ordinance 2006 nos. 161, 368 175

l ist of legislation

xxvii

Italian Constitutional Court Ordinance 2007 nos. 124, 125, 337, 338 175 Italian Constitutional Court Ordinance 2008 nos. 8, 103, 334 168, 174



Italian Court of Cassation

Italian Constitutional Court Cassation 2004 Sez. Un., nos. 1338, 1339, 1340, 1341 167

Malaysia Article 4 of the Federal Constitution 364 Article 58 of the Federal Constitution 230

Peru Perù, Supreme Decree 065-2001-PCM 126

Poland Art. 10 of the Constitution from 1997 220 Art. 86 Ustawy o Ustroju Sądów Powszechnych (Statute on the Structure of Judiciary), Statute from 27 July 2001, Official Gazette 2001 no. 98 pos. 1070 220

Russia Arbitration Procedural Code of the Russian Federation, s. 21 (1), 22, 24 (1), p. 8; s. 4, 8–9, p. 9 278 Civil Procedural Code of the rsfsr 1923, s. 5; Civil Procedural Code of the rsfsr 1964, s. 14 277 Civil Procedure Code of the Russian Federation. 2002 228 Civil Procedural Code of the Russian Federation, s. 16 (1), 17, 19, p. 8; s. 3, 12, p. 9 278 Commercial Arbitration Procedure Code of the Russian Federation, 2002 225, 228 Constitution of the Russian Federation 1993, s. 15 (4) amended by laws No. 6-FKZ and No. 7-FKZ 2008, p. 4, 5 274 Criminal Procedure Code of the Russian Federation, 2001 225, 226

xxviii

l ist of legislation

Federal Constitutional Law No. 1-FCL “On Arbitration Courts in the Russian Federation” of 28 April 1995, paragraph 2, article 13; paragraph 6, article 58 of the Law of the rsfsr “On Judicial Administration of the rsfsr” 230 Judicial Independence Standards 223, 227 Plenum of the Supreme Court of the Russian Federation, Decree No. 23 “On Judicial Decisions” of 19 December 2003. Bulletin of the Supreme Court of the Russian Federation (2004) 2 230 Russian Code of Civil Procedure of 1864 393 Russian Code of Civil Procedure of 1964 393 Russian Code of Civil Procedure of 2002 393



South Africa

Judicial Services Commission Amendment Act, 20 of 2008 63 Section 178(1) of constitution 51, 55 Section 178(k) of constitution 61



United Kingdom

Access to Justice Act 1999 256 Arbitration Act 1996 340, 341, 342, 343, 345 Bill of Rights of 1689 234 Ceylon Act of 1962 185 c.p.r. 35.4(1) to (3); c.p.r. 52.3(1) 263, 264 Constitutional Reform Act 2005, ss. 28 and 30; Constitutional Reform Act 2005, s. 30; Constitutional Reform Act 2005, s. 26; Section 27A (2) (a) and (b), Constitutional Reform Act 2005; Crime and Courts Act 2013, Sch. 3, para. [5] 402 Constitutional Reform Act 2005 18, 39, 44, 45, 66, 296, 396, 397, 402, 403, 404, 406, 408, 467 Coroners and Justice Act of 2009 194 Courts and Legal Services Act 1990 256 Crime and Courts Act 2013, Sch. 13, paras [1–2], [4], [5], [20] 402, 403, 406, 408 Cross-Border Mediation (eu Directive) Regulations 2011/1133 267 c.p.r. 22.1(1)(a) 256 c.p.r. 32.14 256 Equality Rights Act 1996 270 Equality Act 2010 270 Freedom of Information Act (uk) 204

l ist of legislation

xxix

Government of Wales Act 2006 399 High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996/3215C.P.R. 62.1(3); p.d. (61), para. 2.3(2) 345 Housing Act 1996 198 Housing (Homeless Persons) Act 1977 197 Legal Aid, Sentencing and Punishment of Offenders Act 2012 256 National Economy Act of 1931 295 Northern Ireland Act 1988 399 Order 53 of the Rules of the Supreme Court 182, 184 Police and Criminal Evidence Act 1984 151 Representation of the People Act 1983 399 Rule 13 of the Inquiry Rules 2006 148 Supreme Court Guide to Judicial Conduct, 2009 23 Scotland Act 1998 399 Tribunals, Courts and Enforcement Act 2007, ss. 50-52 44, 402, 479



United Nations

United Nations, Human Rights Council Resolution 12/12, 12 October 2009 108 United Nations, Human Rights Council Resolution 9/11, 24 September 2008 108 United Nations, International Convention for the Protection of All Persons from Enforced Disappearance, 2006 108 United Nations, Set of principles for the protection and promotion of human rights through action to combat impunity, 2005 108 United Nations, Vienna Convention on Consular Relations, 1963 116 Article 34(2), uncitral Model Law on International Commercial Arbitration 1985 (as amended in 2006) 341 Universal Declaration of Human Rights 431



United States of America

26 usc 3127 (2006); 10 usc 774 (2006); 42 usc 2000e-1 94 28 u.s.c. §331 (2000) 42 Act of Aug. 7, 1939, ch. 501, 53 Stat. 1223 (1939) 42 Act of June 22, 1870, ch. 150, 16 Stat. 162 (1870) 42 Act of Mar. 3, 1849, ch. 98, 9 Stat. 395 (1849) 42 Air Safety Act, 2005 30 Bipartisan Campaign Reform Act (McCain-Feingold Act) 2002 377

xxx

l ist of legislation

Ethics in Government Act of 1978 (Public Law 95–251) 294 Federal Election Campaign Act, 1971 376 Free Exercise Clause 90, 93 Judiciary Act, 1789 24 Judicial Service Commission Constitution 51, 52, 59, 63 Pub. L. No. 103-141, 107 Stat.1488 (codified at 42 usc 2000bb to 2000bb-4 (2006)); City of Boerne v. Flores, 521 us 507 (1997) 93 Minnesota Constitution, Art. VI, § 7 375 Religious Freedom Restoration Act of 1993 93 United States Constitution 21, 37, 236 us Constitution’s Compensation Clause u.s. Const., Art. III, §1; us v. Hatter (99-1978) 532 u.s. 557 (2001) 203 F.3d 795; Evans v. Gore, 253 u.s. 245, 253 (1920); O’Malley v. Woodrough, 307 u.s. 277 (1939) 492



Conventions and Treaties

American Convention on Human Rights, 1969 123, 128, 129 Australia-India bit 309 Australia–India bit, Article 1 (iii) 309 Australia–India bit, Article 4 (2) 309 Bangladeshi Arbitration Act of 1940, Section V 315 Bangladesh–Italy bit, Article 5 307 Bangladesh–Italy bit, Article 9 305 Bangladesh–Italy bit 305 Canada’s model bit (2004), Article 1 313 Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms (or European Convention of Human Rights), 1953 106, 115, 120, 128, 129, 132, 151, 166, 175 Energy Charter Treaty 302 European Constitution 105 European Convention on Human Rights in 1978 182 Germany–Ukraine bit (1993) 311 Germany–Ukraine bit (1993), Article 1(1)(e) 311 icsid Convention 302, 305, 306, 311, 315 icsid Convention, Article 25 304, 311 India–Kuwait bit, Article4 (5) 309 Japan–Singapore epa, Article 72(a)(v) 313 Lisbon Treaty 100, 104, 106 Maastricht Treaty of 1992 100, 102

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New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 307 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Article II 307 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Article 5 316 Nice Treaty of 2001 100, 102 The International Covenant on Civil and Political Rights 274 The Montreal Declaration 1983 465, 466, 469 Treaty of Amsterdam of 1997 100, 102 Treaty establishing a Constitution for Europe, 16 December 2004, o.j. C 310/01 105 Treaty Establishing the European Community 106 Treaty on European Union 106 Universal Declaration of the Independence of Justice 1983 466, 469



Rules, Codes, and Standards

American Bar Association Cannons of Ethics, 1924 22, 292 American Bar Association Model Code of Judicial Conduct 327 California Cannons of Ethics, 2003 22, 293 Canadian Judicial Council, Ethical Principles for Judges (1998) 293 Code of Conduct for u.s. Judges, 1973 22, 292 Council of Chief Justices of Australia, Guide to Judicial Conduct (2002) 293 Guide to Judicial Conduct 294 International Project on Judicial Independence Mt. Scopus Standards 472 International Commission of Jurists 327 Minnesota Code of Judicial Conduct; Minnesota Rules of Board on Judicial Standards 4(a)(6), 11(d) (2002); Minnesota Rules of Professional Conduct 8.2(b) (2002); Minnesota Rules on Lawyers Professional Responsibility 8-14, 15(a) (2002) 375 Model Code of Judicial Conduct, 2011 22 North Carolina Code of Judicial Conduct, Canon 7 (amended Apr. 2, 2003) and the Georgia Code of Judicial Conduct, Canon 7B (amended Jan. 7, 2004); Canon 5 B (1) (as amended Dec. 22, 2003); for a discussion see Chandonnet, op. cit. pp. 596–601; F.3d 738 (8th Cir. 2005)at 755-6, 759, 761-2; 309 F.3d 1312 (Ga. 2002) 380 Standard 402 (b) of the aba Standards for Approval of Law Schools 2013–2014, American Bar Association, Chicago Illinois 2013 219 Texas Code of Conduct 22, 293 The Judicial Ethical Rules (Israel) 293

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The New Delhi Code of Minimum Standards of Judicial Independence 1982 465, 466, 467, 469, 512–523 Ministerial Code (uk) 2010 294 Utah’s Rule 2.11(A) (4) adopted effective April 1, 2010 382 Model Code of Judicial Conduct 2011 292 Mt. Scopus Standards of Judicial Independence of 2008 465, 466, 472, 476, 478, 481 Mt. Scopus Standards of Judicial Independence of 2008, Article 1.3 476, 477 Mt. Scopus Standards of Judicial Independence of 2008, Article 4.10 480 Mt. Scopus Standards of Judicial Independence of 2008, Article 7.12 479 Mt. Scopus Standards of Judicial Independence of 2008, Article 9A 478, 482 Mt. Scopus Standards of Judicial Independence of 2008, Article 9B 481 Mt. Scopus Standards of Judicial Independence of 2008, Article 4.10 480 Mt. Scopus Standards of Judicial Independence of 2008, Article 7.12 479 Mt. Scopus Standards of Judicial Independence of 2008, Article 7.1 479 Universal Declaration of the Independence of Justice 1983 469

Preface This volume, Culture of Judicial Independence: Rule of Law and World Peace, is a natural academic continuation of the two previous volumes, Judicial Indepen­ dence: The Contemporary Debate, edited by Professor Shimon Shetreet and Chief Justice Deschenes (1985), and The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges edited by Professor Shimon Shetreet and Professor Christopher Forsyth (2012). The focus of this volume is the culture of judicial independence, the rule of law, and world peace. This volume, the third in the trilogy of volumes on judicial independence, offers analysis, insights and opinions from academics, judges and practitioners across jurisdictions – both national and international – on the subject of judicial independence, providing both an in-depth and a broad analysis of this important subject. The three volumes are the work of the International Project of Judicial Independence of the Association of Judicial independence and World Peace (jiwp) (www.jiwp.org). The International Project of Judicial Independence is co-sponsored by the Hebrew University of Jerusalem Faculty of Law and University of Cambridge Public Law Centre. The creation of a culture of judicial independence is of central significance both for national domestic legal systems, as well as for the international courts and tribunals. The judiciary must be both independent and impartial. Both requirements are necessary for fair adjudication. Both conditions are necessary in order to insure the rule of law and to maintain the protection of human rights. It is to be noted also that the prevailing line of thought on judicial 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 maintaining ethical traditions and code of judicial conduct.1 1 Shetreet, Creating a Culture of Judicial Independence: The Practical Challenge and the Conceptual and Constitutional Infrastructure, in, Shimon Shetreet and Christopher Forsyth (Eds), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges 17 (2012).

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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.2 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 globalization 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. For over three decades 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, Malaysia, Switzerland, China – have joined forces in an international project on judicial independence. In the course of this project, the experts studied and developed conceptual and theoretical aspects of judicial independence in national and international levels. These innovative concepts include the concepts of institutional judicial independence, internal judicial independence, judicial diversity and the fair reflection of society in the judiciary have become widely-understood and valued concepts. In addition, the members of the jiwp association developed detailed standards of judicial independence, dealing with different aspects of this matter applicable to both national and international judges. Members of the Association have also been active in the Culture of Peace Project and in the Religions for Peace Organisation International (rpo Inter­ national) and have organized numerous conferences all around the world, including in Trento, Gaflei (Liechtenstein), Rhodes, Aqaba, Amman, and Casablanca. The Association believes that justice and peace go hand in hand 2 L. Neudorf, Shimon Shetreet and Christopher Forsyth (Eds), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, Leiden: Martinus Nijhoff, 2012, 76 Modern Law Review, 181–184 (2013).

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and mutually reinforce each other. The Culture of Peace’s vision calls for strengthening peace by basing it on four foundations: security and political peace, economic peace, cultural or fundamental values peace, and religious peace.3 Over the last decade, the Association has been extremely active in a project led by the Hebrew University Faculty of Law and the University of Cambridge Centre of Public Law, and in cooperation with many universities, it has organized ten 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. The next International Conferences on Judicial Independence are planned to be held in Moscow in May 2014, and will be hosted by Moscow State University of Law and Russian Academy of Justice and supported by Art De Lex law firm, which sponsors the conference and in Osnabrück, Germany in October 2014 at the University of Osnabrück. The conferences over the years have led to significant contributions in the field of judicial independence. Following the Jerusalem conference, the JIWP Association published the Mount Scopus International Standards of Judicial Independence 2008.4 In 2012, the academic studies and research works of the members of the Association were published in Culture of Judicial Independence: Conceptual Foundations and Practical Challenge edited by Shimon Shetreet and Christopher Forsyth (Martinus Nijhoff: 2012). After the adoption 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 provisions to the Standards since its original adoption. These amendments include provisions on judges chairing commissions of inquiry, culture of judicial independence, selection of chief justices, the relationship between international and supernatural courts, and top national courts, adjudicatory officers.5 3 See Shetreet, “Peace Today: Reflections on Four Foundations of Culture of Peace” in Prince Nikolaus Von und Zu Liechtenstein and Cheikh Gueye (eds.), Peace and Intercultural Dialogue, Universitaetverlag, Heidelberg and International Academy of Philosophy: 2005, pp. 195–205; Shetreet, Chapter 6, this volume. 4 http://www.jiwp.org/mt-scopus-standards/c14de. 5 See the following added Articles to the Mount Scopus International Standards: Articles 1.3, 1.4, 4.10, 7.12, 9A, 9B.

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The present volume of Culture of Judicial Independence: the Rule of Law and World Peace, edited by Shimon Shetreet, the third volume of the Judicial Independence Project, co-sponsored by the Hebrew University of Jerusalem faculty of law and the Centre of Public Law of the University of Cambridge, uk, reflects the research and studies presented at the four conferences held in the framework of The International Project on Judicial Independence of which the undersigned is the General Coordinator. The conferences upon which this volume is based are: (1) The International Conference on Judicial Independence: Culture of Judicial Independence at University of Vienna, 19–21 May, 2011, co-chaired by Prof. Walter Rechberger and Prof. Shimon Shetreet, focusing on judicial independence as the essential element for economic order. (2) The International Conference on Judicial Independence and Globalization at City University of Hong Kong, 21–23 March, 2012, cochaired by Prof. Anthony Cooray and Prof. Shimon Shetreet, focusing on the globalization of judicial independence. (3) The International Conference on Judicial Independence: Impartiality and Fairness of the Judicial Process at University of Ghent, 18–20 October, 2012, co-chaired by Prof. Marcel Storme and Prof. Shimon Shetreet, focusing on the impartiality and fairness of the judiciary. (4) The International Conference on Judicial Independence: The Rule of Law and World Peace at University of San Diego, 9–10 August, 2013, co-chaired by Prof. Maimon Schwarzschild and Prof. Shimon Shetreet, focusing on Judicial Independence: The Rule of Law and World Peace. The Standards adopted and the studies published by the members of the jiwp Association have promoted judicial independence inter alia by increasing understanding and awareness of the direct connections between an inde­ pendent and impartial judiciary, and the rule of law, democracy, liberty, freedom and peace among the public, in political circles and within the legal profession. The principle of judicial independence is one of the fundamental values of the administration of justice. These values include procedural fairness, 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. It is with great satisfaction that it may be noted that the works of the International Project of Judicial Independence received world wide recognition

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from jurists and supporters of judicial independence, the rule of law, and world peace. 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.6 The study of judicial independence is significant for all jurisdictions, in that contemporary, detailed debate is required. This is necessary in order to create modern, comprehensive standards for both national and international judges. In order for standards to remain relevant and 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. After the standards had been adopted, review and revision led to a number of central Amendments that are analysed in detail in this volume.7 Shimon Shetreet Mt. Scopus, Jerusalem October 2013 6 The following is a small sampling of the cases in which the works of the project have been relied upon: European Court of Human Rights: Baka v. Hungary, Application No. 20261/12, paragraph 61 (27 May 2014), Australia: Trustees of Christian Brothers v Cardone (Federal Court) (1995) 130 ALR 345, Ebner v Official Trustee in Bankruptcy (M131 of 1999), Clenae Pty Ltd et al v Australia and New Zealand Banking Group Ltd (M2 of 200), High Court of Australia, 176 A.L.R. 644; [2000] HCA 63, [1999] 4 MLJ 650, INSAS, Bhd & Anor v Raphael Pura (High Court) Civil Suit No. S2-23-42 (1996); Canada: Re Lowther and the Queen, Lowther v Prince Edward Island, 118 DLR (4d) 665, Valente v the Queen (Supreme Court of Canada) 1985 SCR Lexis 71; England: R v Bow Street Metropolitan Stipendiary Magistrate et al, ex parte Pinochet Ugarte (No. 2) (House of Lords) [1999] 1 ALL ER 577, 2 WLR 27, Evan Rees et al v Richard Alfred Crane [Appeal From the Court of Appeal of Trinidad and Tobago], Privy Council, [1994] 2 AC 173; Fiji: Iftakhar Khan v President of the Fiji Islands, HBJ007/00L (High Court of Fiji Lautoka) [2002] NZAR 393; 2000 NZAR LEXIS 90 ;India: Sub-Committee on Judicial Accountability v Union of India (Writ Petition (Civil) No. 491 of 1991) (1991) 4 SCC 699; Malaysia: Kuala Lumpur, 25th February 2009; New Zealand: Public Prosecutor v Mohamed Ezam Bin Mohd Nor, Criminal Trial No. 45-06 of 2001 [2001] 3 MLJ 34, R v Loumoli (High Court) [1995] 2 NZLR 656, 1995 NZLR LEXIS 729; Scotland: Stewart v Secretary of State for Scotland, Extra Division (1996), SLT 1203. 7 Shetreet, Chapter 31 of this volume.

Acknowledgements This volume is the work of the International Project of Judicial Independence of the jiwp Association co-sponsored by University of Cambridge Public Law Centre and the Hebrew University of Jerusalem Faculty of Law. This project on judicial independence has been supported by numerous foundations, academic institutions, and distinguished scholars. First and foremost, I wish to express my thanks to the distinguished scholars, judges, and practitioners who have taken part in the adoption and amendment of the Mount Scopus Standards on Judicial Independence and in the International Project of Judicial Independence. I am deeply indebted to the jurists who took part in the four international conferences of judicial independence at the University of Vienna (2011), the City University of Hong Kong (2012), the University of Ghent (2012), and the University of San Diego (2013). I am grateful also to the distinguished jurists that will take part in the upcoming conferences, which are planned to be held in Moscow (2014) and at the University of Osnabrück in Germany (2014) as well as to the hosting institutions of the coming conferences: Moscow State University of Law and Russian Academy of Justice and the University of Osnabrück. I am also deeply indebted for the academic contributions of the distinguished jurists who take part in this volume. I am grateful to the members of the Advisory Editorial Board of this volume: Professor Christopher Forsyth, Professor Marcel Storme, and Professor Anton Cooray. Thanks are due to the Officers of the International Association of Judicial Independence and World Peace, the jiwp Association, for their devoted efforts to promote judicial independence through the work of the Association. We mourn the untimely passing away of the Vice President of the JIWP Association H.E. Markus Buechel. I am grateful to my colleagues at the University of Cambridge, Christopher Forsyth, Neil Andrews, James Crawford and David Feldman. They helped me in developing the idea to embark upon the latest round of the International Project of Judicial Independence, culminating in the Mt. Scopus Standards of Judicial Independence. This idea was developed during my term as the Herbert Smith Visiting Professor at the Faculty of Law at the University of Cambridge and as Senior Academic Visitor at Clare College. The University of Cambridge, Centre of Public Law, and the Hebrew University, Harry and Michael Sacher Institute of Comparative Law, co-sponsored the international project on judicial independence, and I am grateful to

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them for their support. Special thanks are due to the Sacher Family Trust, which supported the project all along. I wish to express my deep gratitude to Mr. Daniel Jacobson and the Jacobson Foundation at the Hebrew University, 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. I wish to express my deep gratitude to the universities that have hosted the conferences on judicial independence, the basis for this volume. I wish to thank Professor Walter Rechberger of the University of Vienna, who hosted the Seventh conference in 2011. I also wish to thank Dean Wang Guiguo of the Hong Kong City University and Professor Anton Cooray for hosting the Eighth conference in 2012, Dean Piet Taelman and Professor Marcel Storme of the University of Ghent for hosting the Ninth conference in 2012, and Dean Stephen Ferruolo and Professor Maimon Schwarzschild of the University of San Diego for hosting the Tenth conference in 2013. Finally, I am grateful to the University of San Diego School of Law and the S.J. Quinney College of Law at the University of Utah for their support in the preparation of the manuscript of this volume. Shimon Shetreet Mt. Scopus, Jerusalem October 2013

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. Sir Louis Blom-Cooper QC was called to the Bar by the Middle Temple in July 1952, and was made a Bencher of the Inn in 1978. He took silk in 1970, and was a Deputy High Court Judge from 1992 to 1996, as well as a Judge of Appeal in the Court of Appeal of Jersey and of Guernsey from 1989 to 1996. Publications include Final Appeal: A Study of the House of Lords in its Judicial Capacity (1972), co-authored with Gavin Drewry, The Court of Appeal (2007), with Gavin Drewry and Charles Blake. Baron Marc Bossuyt (Ghent, 9 January 1944), ll.d. (Ghent); Dr. sc. pol. (Geneva); Dr. h. c. (Hasselt); President Constitutional Court Belgium; Emeritus Professor (Antwerp); Honorary Commissioner General for Refugees; former Chairperson of the un-Commission and un-Sub-Commission on Human Rights; Member of the Committee on the Elimination of Racial Discrimination. Anton Cooray of City Law School, City University London, was until recently Professor of Law and Associate Dean of Law at City University of Hong Kong. He specializes in comparative public law and is the editor of Asia Pacific Law Review, the first Asia based law journal to be indexed in ssci. Gian Andrea Danuser born in 1947, studied law and sociology of law at State University Milan, Italy, and at University of Zurich, Switzerland, lic. iur. (University Zurich) 1971, clerk at Zurich District Court 1971, 1972, practicing barrister in Zurich since 1974, secretary of the International Association of Judicial Independence and World Peace. Cyrus Das llb(Hons) phd is a senior legal practitioner at the Malaysian Bar and an Adjunct Professor of Law. His specialties are administrative and

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constitutional law. He was a former President of the Malaysian Bar Council and presently Honorary Life President of the Commonwealth Lawyers Association. Chandra R. de Silva is Professor of History and Vice Provost for Faculty Development at Old Dominion University. He has written extensively on contemporary education, ethnicity, politics and law. Giuseppe Franco Ferrari is a tenured professor of comparative public law at “L. Bocconi” University, Milan; former tenured professor at Teramo (1986–1990) and Pavia (1990–1999). He is also president of the Italian Association of Public Comparative and European law – dpce – (1999 till nowadays), member of the committee of the Italian Association of Comparative law (aidc), editing director of dpce review. He is co-editor of the manual “Diritto pubblico comparato”, Rome (2009) and editor of “Diritto pubblico dell’economia,” Milan (2010, 2013). He has been member of the Committee of experts on public administration of the UN Economic and Social Council (2002–2007). Christopher Forsyth is Professor of Public and Private International Law in the University of Cambridge and Extraordinary Professor of Law in the University of Stellenbosch. From 1997 to 2010 he was Director or Assistant Director of the Centre for Public Law. He is the author with the late Sir William Wade QC of Administrative Law (10th ed, oup 2009) a standard work on the subject recognised as authoritative by courts throughout the common law world. He has written many books and articles in learned journals on all aspects of public law and private international law. His ph.d thesis was published as “In Danger for their Talents: A study of the Appellate Division of the Supreme Court of South Africa from 1950” (Juta & Co, 1985). He has advised several governments on thorny issues of administrative and constitutional law. He is a practicing barrister, a Bencher of the Inner Temple, and sits as a Recorder in the Crown Court in England. Liu Hao is Director of Institute of Aviation Law and Standard of Beihang University (buaa) and Deputy Director of National Research Center of ATM Law and Standard in China. He is also a fellow of Law School of Beihang University (buaa).

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Hoong Phun (“HP”) Lee holds the Sir John Latham Chair of Law at Monash University. Professor Lee’s publications include The Australian Judiciary (2nd ed. Cambridge University Press, 2013) (co-author) and Judiciaries in Comparative Perspective (Cambridge University Press, 2011) (editor). Wayne McCormack (B.A. Stanford University, J.D. University of Texas) is the E.W. Thode Professor of Law at the University of Utah. He has written widely in constitutional law and international criminal law with emphasis on counter-terrorism. Dmitry Magonya is the Managing Partner of art de lex Law Firm (Russia), concentrating on civil (arbitration) procedural law and corporate and competition law. Mr. Magonya also oversees Social Responsibility and Pro Bono, including professional higher education projects. Dmitry Maleshin Professor of Civil Procedural Law at Moscow State Lomonosov University. He has been a Visiting Scholar at Yale Law School (2004) and Harvard Law School (2008). He is a member of the Council of International Association of Procedural Law and the International Law Association Civil Litigation Committee; International Society of Legal Scholars; Russian Association of International Law; etc. Member of a number of official drafting groups concerning civil procedure and education legislation. Member of Academic council of Federal Bailiff Service, Federal Notary Public Chamber, Moscow Arbitrazh Court, etc. Author of more than 100 academic publications in Russian, English and French. He has written on Russian civil procedure, comparative civil procedure, law and culture. Sergey V. Nikitin Doctor of Law, Professor, Honoured Jurist of the Russian Federation, ProRector of the Russian Academy of Justice, Member of the Higher Qualification Commission of Judges of the Russian Federation. Academic interests – judicial control over legal acts, judicial evidence, bankruptcy legislation. Walter H. Rechberger is Professor of Law at the Vienna University School of Law where he acted as dean from 1999 to 2006, currently he is head of the Department of Civil Procedure (Institut für Zivilverfahrensrecht). He got degrees of honorary

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doctor from the University of Pècs, Hungary and the University of Athens, Greece and is member of the Council of the International Association of Procedural Law. Maimon Schwarzschild is Professor of Law at the University of San Diego, and Affiliated Professor at the University of Haifa. He has recently been Visiting Professor at the University of Paris (Sorbonne) and at the Hebrew University in Jerusalem. He is an English barrister and an American lawyer; he is an associate member of Landmark Chambers, London. Shimon Shetreet LLB, LLM, Hebrew University, MCL, DCL, University of Chicago holds the Greenblatt chair of public and international law at the Hebrew University of Jerusalem, Israel and is past chairman of the Sacher Institute of Legislative Research and Comparative Law. He was a member of the Chief Justice Landau Commission on the Israeli Court System, 1980, and a Judge on the Standard Contract Court (1981–88). He is the author and editor of a number of books, including Judges on Trial (1976), Judicial Independence: The Contemporary Debate with Chief Justice Jules Deschenes (1985), “The Role of Courts in Society” (1988), National Security and Free Speech (1991), Pioneers in Tears: Anthology on North African Jewry (1991), Justice in Israel (1994), Women in Law (1998), The Good Land between Power and Religion (1998), Law and Social Pluralism (2002), On Adjudication (2004), Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, with Christopher Forsyth (Martinus Nijhoff Publishers, 2012), Uniform Civil Code: The Challenge of Implementing Uniform Civil Code for India, with Hiram Chodosh (2013), and Judges on Trial: Independence and Accountability of the English Judiciary with Sophie Turenne (2013). His book Judges on Trial: A Study of the Appointment and the Accountability of the English Judiciary (1976) was relied upon by the House of Lords in the Pinochet Case in January 1999 and by the courts in many other countries. He served as General Coordinator, International Bar Association Project for the New Delhi Code of Minimum Standards of Judicial Independence 1980–1982 In recent years Professor Shetreet together with Professor Christopher Forsyth was the head of the International Project on Judicial Independence which held ten international conferences. Professor Shetreet held high public offices. Between 1988 and 1996 he served as Member of the Knesset the Israeli Parliament. He was a cabinet minister in the Rabin Government and in Peres Cabinet (1992–1996). He served as senior deputy Mayor of Jerusalem (1999–2003). He is the President, International Association

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of Judicial Independence and World Peace (www.jiwp.org), and President, International Culture of Peace Project. In December 2010 Professor 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 in recent years Herbert Smith Visiting Professor, University of Cambridge 2008, 2010, Senior Academic Visitor, Clare College 2010, delivered the KK Nambyar Lecture 2009 New Delhi and Chennai, 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 is the Director of Institute Procedural and European Law. He graduated from Ghent University in 1952 and got post graduate degrees from University of Paris and London School of Economics. Barrister at the Gent Bar since 1952, Prof.em. Gent and Antwerp, Honorary President of the International Association Procedural Law, Former President of the Belgian Academy of Sciences and Arts, Former Member of the Belgian Parliament. He has published many books, including Burden of Proof, General Principles of Law, and numerous articles. Sophie Turenne ma (Cantab.), ph.d (Paris II Panthéon-Assas), Associate Lecturer, Faculty of Law, University of Cambridge; Fellow of Murray Edwards College. Dr Turenne’s publications include Le juge face à la désobéissance civile. Etude en droits américain et français comparés (2007) and Judges on Trial. The Independence and Accountability of the English Judiciary (2013), co-authored with Shimon Shetreet. Arianna Vedaschi is Associate Professor of Public Law at Bocconi University, Milan. She is the author of À la guerre comme à la guerre? La disciplina della guerra nel diritto costituzionale comparato (Giappichelli 2007); Istituzioni europee e tecnica

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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 widely written 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. Guiguo Wang is Chair Professor of Chinese and Comparative Law, City University of Hong Kong; Chairman of the National Committee (HK) and Titular Member of the International Academy of Comparative Law; Chairman of the Hong Kong WTO Research Institute; Honorary Advisor to the Ombudsman of Hong Kong; Vice President of the Chinese Society of International Economic Law and an experienced arbitrator. Fryderyk Zoll is Professor at the Jagiellonian University in Cracow. Mercator Professor at the University of Osnabrück (from 1.10.2010). Member of the International Academy of Comparative Law. Member of the Acquis Group on the Existing eu Contract Law. Director of the Centre for the Foreign Law Programs at the Jagiellonian University. Head of the Curriculum Team for the National School of Judiciary.

Part one General

∵

Chapter one

General Introduction The work of the International Project of Judicial Independence of the International Association of Judicial Independence (jiwp Association), which for nearly ten years has been co-sponspered by the Hebrew University Faculty of Law and the University of Cambridge Public Law Centre, has produced three volumes on judicial independence, the present one being the third one in this trilogy. This trilogy of volumes is in addition to numerous other publications that the members of the project have published. In the previous two volumes on judicial independence,1 and in this volume Culture of Judicial Independence: Rule of Law and World Peace as well as in the other publications, and in the international standards they authored,2 the members of the jiwp Association have introduced innovative concepts of 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 over thirty years 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 well over three 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 1 Judicial Independence: The Contemporary Debate, edited by Professor Shimon Shetreet and Chief Justice Deschenes (Martinus Nijhoff 1985), and The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges edited by Professor Shimon Shetreet and Professor Christopher Forsyth (Martinus Nijhoff 2012). 2 Mount Scopus Standards, Appendix I, this Volume Part IX; The Montreal Declaration, Appendix III, Id.; and the New Delhi Code of Minimum Standards of Judicial Independence, Appendix II, Id.

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_002

4

Chapter one

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. The first International Conference on Judicial Independence was held in Jerusalem at the Hebrew University of Jerusalem in March of 2007 and it was chaired by Professor Shimon Shetreet and Professor James Crawford. Its focus was on judicial independence in international law.3 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, Professor Marcel Storme, and Professor Christopher Forsyth, and Professor Shimon Shetreet.4 The third International Conference on Judicial Independence was held in March 2008 at Jerusalem at the Hebrew university of Jerusalem and was co-chaired by Professor Christopher Forsyth and Professor Shimon Shetreet. The conference focused on the Constiutional Position of the Judiciary.5 The fourth International Conference on Judicial Independence was held in the Jagiellonian University in Krakow Poland in November 2008 and was co-chaired by Professor Fryderyk Zoll and Professor Shimon Shetreet. The conference focused on the analysis and challenges of the implementation of the Mt. Scopus International Standards of Judicial Independence.6 The fifth International Conference on Judicial Independence was held at the University of Cambridge, U.K. in August of 2009. It was co-chaired by Professor Christopher Forsyth and Professor Shimon Shetreet. The conference focused on conceptual foundations and practical challenges of Judicial Independence.7 The sixth International Conference on Judicial Independence was held at the University of Utah in Salt Lake City (October 2010) and was co-chaired by 3 http://www.jiwp.org/ji-jerusalem-conference-2007/c1v6k. 4 For the full program, see http://www.jiwp.org/ji-vadouz-conference-2007/c1ww7. 5 For the full program, see http://www.jiwp.org/ji-conference-jerusalem-2008/cl5c. 6 For the full program, see http://www.jiwp.org/ji-conference-krakow-2008/c21e8. 7 For the full program, see http://www.jiwp.org/ji-conference-cambridge-2009/c1umr.

General Introduction

5

Professor Hiram Chodosh, Professor Wayne McCormack, and Professor Shimon Shetreet. The conference focused on the analysis of challenges of implementing judicial independence in multicultural socieities and in times of crisis.8 The seventh International Conference on Judicial Independence was held at the University of Vienna in Vienna in May 2011 and was co-chaired by Professor Walter Rechberger and Professor Shimon Shetreet. The conference focused on judicial independence as an essential element for economic order.9 The eighth International Conference on Judicial Independence was held at the City University of Hong Kong in Hong Kong in March 2012 and was cochaired by Professor Anton Cooray and Professor Shimon Shetreet. The conference focused on the globalization and judicial independence.10 The ninth International Conference on Judicial Independence was held at the University of Ghent in Ghent, Belgium in October 2012 and was co-chaired by Professor Marcel Storme and Professor Shimon Shetreet. The conference focused on the impartiality and fairness of the judicial process.11 The tenth International Conference on Judicial Independence was held at the University of San Diego in San Diego, California in August 2013 and was cochaired by Professor Maimon Schwarzschild and Professor Shimon Shetreet. The conference focused on judicial independence, rule of law, and world peace.12 It is to be noted also that the prevailing line of thought on judicial 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.13 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. 8 9 10 11 12 13

For the full program, see http://www.jiwp.org/ji-conference-utah-2010/cnn0. For the full program, see http://www.jiwp.org/ji-conference-vienna-2011/c1uyy. For the full program, see http://www.jiwp.org/ji-conference-hong-kong-2012/cgve. For the full program, see http://www.jiwp.org/ji-conference-ghent-2012/c1x5g. For the full program, see http://www.jiwp.org/ji-conference-san-diego-2013/c1nww. Shetreet, Creating a Culture of Judicial Independence: The Practical Challenge and the Conceptual and Constitutional Infrastructure, in, Shimon Shetreet and Christopher Forsyth (Eds), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges 17 (2012).

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The ­legislative p ­ rovisions offer a detailed regulation of the basic constitutional principles. The courts add to the constitutional infrastructure and the legislative provisions, c­ omplimentary interpretations and jurisprudence on different aspects of the conduct of judges, operations and courts. The ethical traditions and code of judicial conduct cover the judge’s official and non-­ official spheres of activities, and shield the judge’s substantive independence from dependencies, associations, and even less intensive involvement, which might cast doubts on judicial neutrality. It should be emphasized that the culture of judicial independence includes not only formal aspects and arrangements provided for in constitutional ­provisions or in statutory regulations, but also includes informal aspects which develop by tradition, practice, and conventions over the years in each jurisdiction.14 International law plays a significant role in creating the culture of judicial independence in domestic law. I have elsewhere described this process as the normative cycle of the international and national law in the area of judicial independence.15 International law influences domestic law by virtue of 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 recent example is the Mt. Scopus International Standards on Judicial Independence (“Mt. Scopus Standards”).16 This volume is divided into nine parts: Part I, General; Part II, Judicial Independence, Human Rights, Democracy, The Rule of Law and World Peace; Part III, Constitutional Position of Top Courts; Part IV, Relations Between the Judiciary and the Other Branches of Government; Part V, Impartiality of the Judicial Process; Part VI, International Courts and Cross Country Issues; Part VII, Judicial Selection; Part VIII, International Standards of Judicial Independence; and Part IX, International Texts. on Judicial Independence. 14

15

16

See book review on the second volume in Modern Law Review. See Leone Neudorf, 76 The Modern Law Review pp. 181–184 (the volume was referred to as “a significant contribution to the comparative literature on judicial independence” and “a tremendous resource for a wide audience of lawyers and scholars.” 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). Mt. Scopus International Standards of Judicial Independence (Mar 19, 2008), as amended, Appendix I, Part IX of this volume.

General Introduction



7

Part I: General

Part I focuses on the significance of judicial independence and the integrity of the court. This part contains an analysis of a number of central issues regarding judicial independence and accountability. This Part contains chapters by Shimon Shetreet, Christopher Forsyth, and Marcel Storme. Chapter 1, is the general introduction. Chapter 2 by Shimon Shetreet, analyses the significance of judicial independence for a democratic government, for the maintenance of human rights, for the protection of liberty and for the rule of law. Judicial independence is also vital for the operation of trade and investments on international and domestic levels. The chapter emphasizes the need for promotion of substantive human rights. However they must be coupled with effective machineries of justice that ensure the enforcement of the right, and ensure fairness and procedural rights as vital complementary protection of human rights. The chapter also outlines the elements of culture of judicial independence which are both f­ ormal and informal.17 Chapter 3 by Christopher Forsyth, Accountability of Judicial Service Commissions to the Law, outlines the story of Judge Hlophe’s alleged misconduct while in his capacity as a judge, and the problems within the Judicial Service Commission’s system that prevented the necessary adequate accountability. The chapter addresses the issue revolving around institutions set up to address judicial misconduct, particularly the Judicial Service Commission in South Africa. It discusses the importance of accountability in the law and the integrity due by judges. It discusses different standards that should be adopted in order to provide accountability and promote judicial independence in courts. The Judicial Services Commission, which has an unenviable role as the authority, must find that a judge has been guilty of “gross misconduct” before that judge may be removed from office. It has been failing in this task. This is of profound and disconcerting consequence for the South African judiciary as a whole and constitutional government in that country. This chapter points to the possibility that the judiciary itself will, in its own interests and the interests of the polity as a whole, insist upon the jsc adopting proper standards and disciplining errant judges. Chapter 4 by Marcel Storme, Reflections on Judicial Independence, explores certain issues regarding independence and impartiality in international courts, as well as the accountability and fairness of judges. The chapter proposes that the jiwp association should embark upon a project to draft a global written Code of Ethical Conduct for judges and also the association devote studies and 17

Cf. Neudorf, book review, 76 Modern Law review 181 9 2013.

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Chapter one

conferences to the issue of online justice and online dispute resolution which has become significant in recent years in the digital age. Professor Storme registers a warning against the pressures of media in the quest for justice.

Part II: Judicial Independence, Human Rights, Democrarcy, the Rule of Law, and World Peace

This Part contains chapters by Neil Andrews, Maimon Schwarzschild, Shimon Shetreet, and Arianna Vedaschi. Chapter 5 by Neil Andrews, Judging the Independence and Integrity of Foreign Courts, explores the application of judicial independence and the principle of adjudicative finality in evaluation by English courts of a foreign court’s exercise of jurisdiction. Judicial independence and the principle of adjudicative finality make up the rule of law, which concerns the integrity of courts. The chapter analyses cases in which the English courts face the decision of adopting foreign court decisions on judicial independence, and other related topics. Chapter 6 is written by Maimon Schwartzschild, The Role of the us Supreme Court in the Protection of Religious Liberty: How Much Autonomy Do You Want? It poses the question of how much legal autonomy and exemption from otherwise applicable laws ought to be given to religious groups, given the fact that certain religious communities may not thrive without such provisions. The chapter discusses conflicts that arise between the exercise of religious freedom and other constitutional provisions. The chapter follows the changes in the history of religious constitutional issues and the U.S. Supreme Court’s role in determining the limits of what is permissible. Chapter 7 by Shimon Shetreet, Culture of Peace and Human Rights: The Development of the Human Rights Protection in the European Union, discusses the European Union’s commitment to human rights and how it has strengthened the culture of peace and rule of law. It explores the history of the European Union’s change in focus from the economy based organization to an organization committed to the values of human rights. The chapter presents potential issues the Union faces in the years to come. The chapter also outlines the foundations of culture of peace: political and security peace, economic peace, cultural peace, (maintaining the values of rule of law, human rights, and judicial independence) and religious peace. Chapter 8 by Arianna Vedaschi, The Globalization of Human Rights and Mutual Influence Between Courts: The Innovative Reverse Path of the Right to the Truth, analyses the famous case of El-Masri v. Macedonia, in which the European Court of Human Rights demonstrated its attitudes toward the

General Introduction

9

far-reaching enforcement of the right to the truth. The discussion addresses the innovative reverse path followed by the Court’s decision, from its development in the early fifties to the start of further reasoning aimed at establishing a stronger, well-defined role for the right for truth in Europe.

Part III: Constitutional Position of Top Courts

This Part contains chapters by Marc Bossuyt, Louis Blom-Cooper, and Giuseppe Ferrari. Chapter 9 by Marc Bossuyt, Independence of the Judiciary in Belgium, explores the recent developments in Belgium that are relevant to the independence of the judiciary. It discusses the recent attempts of recusal of the highest court judges of the land. It also discusses a recent high-profile case, the Fortis case, which raised doubts about the respect of the government in Belgium for the independence of the judiciary. Chapter 10 by Louis Blom-Cooper, On Fairness, explores the meaning of fairness in form, definition, and principle. It provides background as to the “natural justice” spoken of in historical times and continues to discuss cases and legislation that have interpreted the extent of action needed to ensure fairness in reaching legal decisions. Chapter 11 by Giuseppe Franco Ferrari, The Conceptual Definition of the Constitutional Court, explores the genesis of the Italian Constitutional Court, which according to the Italian concept is not part of the judiciary, but an organ of the constitution. The chapter delves into the composition and function of the Court, the decisions made within it, and the effects of the decisions. It also compares the Court with transnational courts in Europe, and provides an overview of its legitimation.

Part IV: Relations between the Judiciary and the other Branches of Government

This Part contains chapters by Louis Blom-Cooper, Anton Cooray, Fryderyk Zoll, Sergey Nikitin, and Hoong Phun Lee. Chapter 12 by Louis Blom-Cooper, The Scope of Judicial Review, Judicial Activism, and Judicial Restraint, discusses the balance between the distributions of separate powers within the government. Particularly, it focuses on the judicial limits on activism and restraint as defined through the chang­ing times by case law and legislation. It introduces the contemporary debate in the uk

10

Chapter one

that is centered on the Rule of Law. It observes a number of points about the scope of judicial review in a democratic society displaying an increasing desire for more transparency and fairer adjudication of social issues. Chapter 13 by Anton Cooray, Entering the Political Thicket: The Role of the Judiciary as an Arbiter in Relation to Making and Implementation of Public Policy, discusses the tension in the judiciary’s role in controlling exercising judicial review and controlling the legislative and executive branches of the government, especially in the interplay between the two branches in modernday disputes. The chapter explores the meaning and usage of the separation of powers doctrine and reviews cases in Hong Kong that demonstrate the question of judicial roles in legislative and administrative action, and how the independence of the judiciary still exists within the system. Chapter 14 by Fryderyk Zoll discusses the issue of extra judicial activities by judges and focuses on judges writing commentaries. He asks the question: is it appropriate for a judge to do other things? and replies with a suggestion to review the present practice in civil law practice of judges writing commentaries while sitting on the bench. Chapter 15 by Sergey Vasil’evich Nikitin, Guaranteeing Procedural Independence and Impartiality of Judges in Russia, discusses the procedural remedies that the law provides to carry out the needs of justice. It stresses the procedure of judge recusal and other aspects of ensuring judicial independence and impartiality when rendering decisions. The chapter also analyses the Russian laws that govern this area of judicial review. Chapter 16 Hoong Phun Lee, The Relationship of the Judiciary and Legis­ lature in Australia, provides an excursion on the interaction between the judiciary and the legislature against the backdrop of the rule of law. It focuses on judicial intervention on the law-making process, legislation impact on specific court decisions, protecting the integrity of state courts, restricting parliamentary intrusions into fundamental guarantees, parliamentary attempts to restrict courts’ jurisdiction, accountability of the judiciary to parliament, and the parliamentary restructuring of courts.

Part V: Impartiality of the Judicial Process

This Part contains chapters by Neil Andrews, Dmitry Magonya, Cyrus Das, and Shimon Shetreet. Chapter 17 by Neil Andrews, Relations Between the Court and the Parties in the Managerial Age, discusses how civil justice is now expected to be a more civilized form of contest, where litigants and their lawyers are expected to avoid opportunistic tactics and instead approach civil proceedings

General Introduction

11

cooperatively. Further, legal representatives’ overriding responsibility is to the interests of justice rather than their client. The chapter also argues that the court is no longer required simply to adjudicate at trial, with modern courts required to promote a range of cost-effective dispute resolution processes. Chapter 18 by Dmitry Magonya, Independence of Court Proceedings: Impartiality and Fairness, discusses the connection between civil procedure reform and the reconsideration of goals and objectives of the civil procedure. Common values of procedural systems across the globe call for the recognition of fundamental norms, such as court independence, the right of justified court proceedings, and the reasonable timeframe for the resolution of cases. The chapter explores the Russian civil procedure system, its elements and effectiveness, and Russia’s unique experience of adopting and developing institutes of the continental system. Chapter 19 by Cyrus Das, Recusal of Judges: A Commonwealth Survey of the Applicable Tests, explores the standards for determining the recusal of judges and bias, which are often founded upon the subjective standpoint of the judge’s perception of a reasonable and informed observer. It analyses judicial recusal and bias determination systems used by different countries, and also weighs the pitfalls and benefits of each system. Chapter 20 by Shimon Shetreet, The Status of Codes of Judicial Conduct in Comparative Perspectives, discusses different codes of judicial conduct adopted by countries across the globe. It analyzes the shift from oral tradition of judicial ethics to a written code of judicial conduct, discusses the status of the code of ethics, and examines the considerations which shape the standards of judicial conduct.

Part VI: International Courts and Cross Country Issues

This Part contains chapters by Guiguo Wang, Wayne McCormack, Neil Andrews, and Gian Andrea Danuser. Chapter 21 by Guiguo Wang, Judicial Independence in the Context of Inter­ national Investment Law, discusses the values of judicial independence and its role in regulating judges’ obligations in international issues. It specifically focuses on the international trade and investment world and explores international cases relating to trade and investment. Chapter 22 by Wayne McCormack, Judicial Impartiality in International Courts: Of Law and Corruption, presents the argument that the promotion of the rule of law requires the abandonment of professional standards by which a judge is assessed according to his performance on the basis of principle above national preference.

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Chapter 23 by Neil Andrews, Arbitral Awards and Errors of English Law: Refining the Law-Making Function of the Judicial Appeal System, discusses Section 69 of the Arbitration Act, which confers power to challenge the award before the Commercial Court on the basis of an error of English law. It presents international controversies concerning Section 69 challenges and the section’s workings and provisions. Chapter 24 by Gian Andrea Danuser, The Influence of the European Convention on Human Rights on Judicial Independence in Criminal Procedural Law in Switzerland, discusses changes of Swiss law. It illustrates the interaction of opinions and decisions between the European Court of Human Rights and the Swiss Federal Court over questions of Judicial Independence in the field of criminal procedural law by analyzing judgments by these courts.

Part VII: Judicial Selection

This Part contains chapters by Chandra de Silva, Dmitry Maleshin, Sophie Turenne, Sergey Nikitin, and Liu Hao. Chapter 25, by Chandra de Silva, Recent Developments in Judicial Elections in the United States and their Impact on the Impartiality of Judges, discusses the expectation that judges are to be impartial arbiters of legal disputes. The chapter discusses the link between primaries of judges in judicial impartiality and discuses the societal, personal, and legal constraints that limit the judge’s ability to be as open as the expectation requires regarding his views on adjudicating cases. In response to this issue, current safeguards to impartiality are explored as presented in the United States. Chapter 26 by Dmitry Maleshin, Culture and Judicial Independence in Civil Procedure, explores civil procedure and its changes in different parts of the world under the pressures of cultural diversity. It also explores the contraposition of cultural diversity being a source of judicial independence diversity between judicial systems of different countries. Chapter 27 by Sophie Turenne, Constitutional Adjudication and Appoint­ ments to the uk Supreme Court, discusses the interactions between the constitutional role of the uk Supreme Court today and the judicial selection process for appointment to the uk Supreme Court. It concludes with a suggestion that the current process and criteria for appointments ensure the right balance between merit and democratic accountability. Chapter 28 by Sergey Vasil’evich Nikitin, Appointment of Judges and Legal Responsibility of Judges: Guarantees of Independence in Russia, discusses the Russian system that guarantees judicial independence in relation to the legal,

General Introduction

13

economic, administrative, and other means. It explores the structure of the Russian judiciary as a starting point for discussing the judicial independence created by it. Chapter 29 by Liu Hao, The Bumpy Road Towards Judicial Independence: Past, Present, and Future Prospects of Mainland China, discusses judicial independence as it was introduced to China in the second half of the 18th century. The chapter explores the development and characteristics of the system of judicial independence in modern China, deficiencies of judicial independence in mainland China, and suggestions for potential judicial reform. Chapter 30 by Giuseppe Ferrari analyses the administarative justice system in Italy and its recourse to mediation and arbitration.

Part VIII: International Standards of Judicial Independence

Chapter 31 by Walter Rechberger deals with the relations of top courts in Austria. It also discusses the concepts of independence and impartiality in the Austrian Civil Procedure. Chapter 32 by Shimon Shetreet, Analysis of Recent Amendments to the Mt. Scopus International Standards of Judicial Independence, analyses the recent amendments to the Mt. Scopus International Standards of Judicial Independence after their adoption in 2008. The amendment passed in 2011 and 2012 include: The relations between top national courts and international and supranational courts, Administrative Adjudicators, Limits on judges’ consultations, expressly provided procedure for selection of Chief Justices, Culture of the judicial independence, and guidelines regarding public inquiries by judges. The chapter also outlines the focus issues for the next conferences of the International Project of Judicial Independence: The Legal profession and judicial Independence, The Global Judicial Ethics Code and the Online Justice or the Online Dispute resolution (odr).

Part IX: Text of the International Standards of Judicial Indepence

Appendix I contains the Mt. Scopus International Standards of Judicial Independence (2008) (Consolidated 2013). Appendix II contains the New Delhi Code of Minimum Standards of Judicial Independence (adopted by the IBA New Delhi Convention 1982). Appendix III contains the Montreal Universal Declaration on the Independence of the Justice System (1983).

Chapter TWO

Judicial Independence, Liberty, Democracy and International Economy* Shimon Shetreet† I

The Significance of Judicial Independence: In General

Judicial independence is a core value of the justice system. It is essential for democratic government, vital for maintaining human rights, indispensable for the protection of liberty and the rule of law, and it is essential for operating trade, economy, and investments both domestic and international. It is generally accepted that judicial independence is a central foundation for democracy, liberty, and orderly economy. A recent statement of the importance of judicial independence was made in the Mt. Scopus International Standards of Judicial Independence (2008):1 An independent and impartial judiciary is an institution of the highest value in every society and an essential pillar of liberty and the rule of law. The objectives and functions of the judiciary shall include: To resolve disputes and to administer the law impartially between persons and between persons and public authorities; To promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and to ensure that all people are able to live securely under the rule of law.2 * This Article is based on The 10th Fiat Justitia Lecture delivered on 11 Feb. 2013 at Monash University Melbourne. I am grateful to the patron the Hon. Michael Black AC, former Chief Justice of the Federal Court of Australia. I am indebted to Dean Brian Horigan and to the conveners Prof. HP Lee, Sir John Latham Professor of Law, and Professor Marilyn Pittard, Professor of Law, all from Monash University Faculty of law. † Shimon Shetreet, LLB, LLM, Hebrew University, MCL, DCL, University of Chicago, holds the Greenblatt Chair of Public and International Law at the Hebrew University of Jerusalem. He is the past chairman of the Sacher Institute of Legislative Research and Comparative Law, author and editor of many books and articles, and president of the International Association of Judicial Independence and World Peace. Email: [email protected]. 1 http://www.jiwp.org/#!mt-scopus-standards/c14de. 2 http://www.jiwp.org/#!mt-scopus-standards/c14de.

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_003

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There are numerous issues regarding the meaning of judicial independence and the necessary elements for maintaining the independence of the judiciary as a whole and the independence of judges as individuals. In 1985 I stressed the importance of placing equal emphasis on the promotion of substantive human rights as well as the institutional framework underlying the machinery of justice which enforces them; one passage remains particularly noteworthy:3 It is important to emphasize the interdependence between the protection of human rights and the independence of judges and other officers in charge of the administration of justice. In the last 36 years, since the Universal Declaration of Human Rights, the international community has made a giant step towards the crystallization of substantive human rights. They were embodied in numerous international treaties, global and regional, general and specialized. No doubt, the efforts to promote and develop transnational jurisprudence of substantive human rights must continue with the same vigour and resoluteness. But, an important part of the agenda of the international community and its human rights agencies must be devoted to ensure effective mechanism of enforcement of human rights both in domestic and international systems of justice. For substantive human rights are worthless without an effective mechanism for their enforcement. The enforcement of rights is assured by an independent and impartial tribunal. For substantive human rights enforcement is assured by an independent and impartial tribunal. The establishment of clearly stated international standards on the meaning of judicial independence will enhance the promotion of human rights. The emerging transnational jurisprudence as discussed in…this volume, will no doubt contribute to the furthering of human rights in the years to come.4 It is important to recognize the contribution of international treaties and the international professional and academic standards to the promotion of judicial independence. In the 2010 preface to Judiciaries in Comparative Perspective, Professor H.P. Lee stressed the importance of sharing transnational human experience on the role of judiciaries in society and emphasized that ‘[v]aluable lessons can be learned from the experience of other liberal 3 Shimon Shetreet Introduction in S. Shetreet and J. Deschenes, Editors, Judicial Independence: The Contemporary Debate (Martinus Nijhuff Publishers, 1985). 4 Id.

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Shetreet

democracies how to ensure that the judiciary can continue to play a pivotal role as an independent and impartial entity in a robust democracy’.5 Indeed he has personally taken an important position in comparative writings and in the International Project of Judicial Independence conducted by the International Association of Judicial Independence and World Peace. Lord Mckay, Lord Chancellor of England, stressed the importance of the independence of the judiciary: ‘Judicial independence requires that judges can discharge their judicial duties in accordance with the judicial oath and the laws of the land, without interference, improper influence or pressure from any other individual or organisation’,6 and Lord Irvine, LC said: ‘The independence of the judiciary is a cornerstone of Britain’s constitutional arrangements.  . . If judges depend on the goodwill of their government for their continuing employment, they may find themselves unable to resist political or other improper influence in individual cases. So, judges must have security of tenure. They must be able to undertake their responsibilities and exercise their discretion without fear or favour. Their appointments and careers must be developed on the basis of objective criteria to avoid any suggestion of favouritism or preferment in return for favours rendered’.7 In modern times, the judiciary is expected to engage not only in the resolution of private law disputes and in judicial review of government executive actions; rather, and particularly after the Second World War, the judiciary is expected to be the constitutional organ that resolves constitutional issues regarding individual rights. The judiciary has also found itself at the heart of drawing lines of demarcation of powers between the three branches of government and to draw these lines in the face of ever changing economic, political, social, and global conditions. The models of constitutional adjudication vary from jurisdiction to jurisdiction and from one system of government to another. However, the main challenge of society is to ensure compliance with judicial rulings. One of the cornerstones of the rule of law is judicial review of government action. In the words of the late Sir David Williams: When we speak of judicial review as a cornerstone of good governance there is a medley of considerations, often conflicting, which need to be 5 HP Lee, Ed., Judiciaries in Comparative Perspective, p. xxxvii, Cambridge University Press (2010). 6 HL Deb vol 576, col 196 WA, 16 Dec 1996. 7 Lord Irvine’s address at the Commonwealth conference of 1998, J. Hatchard and P. Slinn (eds), Parliamentary Supremacy and Judicial Independence: A Commonwealth Approach (London: Cavendish Publishing limited, 1999) 167.

Judicial Independence, Liberty, Democracy, and Int. Economy

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taken into account. The contributions to this volume show the complexity of the subject and that both comparative constitutional laws are crucial – though not without a need for caution. Historically the courts and the administrators unquestionably have some important and differing staring points, and the areas of difference might be identified as ‘secrecy or openness in government; a preference for rules rather than a case by case approach; a demand for speed and finality rather than the slowness of adjudication and endless appeals; conflicting views as to relying on expert or informed judgment; and the wider concern that external control through the courts may unduly restrict freedom of executive action.8 The only way in which judges are able to effectuate judicial review over other branches of government in any meaningful way is through the rigid adherence to judicial independence. II

Three Phases of Historical Development in the Principle of Judicial Independence

Both domestic and international law played a significant role in developing the principle of judicial independence. Elsewhere I have suggested that there were three phases of judicial independence, using England as a case study. It is important to note that the interrelationships between domestic law, international human rights law, and professional international standards have had a normative effect on the culture of judicial independence throughout the three phases of development. It is my view that there has been a cycle of normative and conceptual impact of national law on international law and, subsequently, the impact of international law on national law. The United Kingdom provides a most instructive illustration of this phenomenon.9 The first phase is characterized by the domestic development of the c­ oncept of judicial independence, the second by the seeping of this concept into the international scene, and the third by the re-domestication of newly 8 See Williams, Thems from the Volume, Effective Judicial Review As A Cornerstone for Good Governance, Edited by C. Forsyth and others 423 at p. 428 (2010). 9 Shetreet, The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges, 10 Chicago Journal of International Law, p. 273 (2009).

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Shetreet

­reformulated international principles of judicial independence, with significant and dramatic results. The first phase occurred in England with the original conception of judicial independence in the Act of Settlement in 1701. The second phase was evident when England’s concepts regarding judicial independence first entered the international scene and from there moved into the domestic arenas of other countries. For instance, England served as the theoretical model for Montesquieu’s separation-of-powers doctrine. Also, the Founding Fathers of the United States Constitution used England as their dominant model in formulating the Constitution’s Article III, which is the foundation of American judicial independence. They added to the constitutional provision of Article III a compensation clause to protect the judges from diminution of their r­ emuneration during their term of office.10 Other common law countries, including Canada, Australia, and India, also adopted the British model of judicial independence. Lastly, in recent decades the third phase of judicial independence has come into play in the United Kingdom, as the country has been significantly influenced by judicial independence principles developed by international human rights constitutional documents. I refer to the significant impact of the jurisprudence of the European Court of Human Rights (‘ECtHR’) on the conceptual analysis of judicial independence in England and Scotland. This process began in the 1990s with cases heard by the ECtHR before the United Kingdom had adopted the Human Rights Act. Later, this process found dramatic expression in the application of the European Convention of Human Rights (echr) in the United Kingdom Human Rights Act 1998, which came into force in 2000. Whereas British national law had previously impacted the national law of other countries concerning the international law of judicial independence, the Human Rights Act 1998 and the British Constitutional Reform Act of 2005 signalled a shift, international law was now impacting British domestic law. The Constitutional Reform Act dramatically reformed government control over the administration of justice in England and Wales; importantly, it discontinued the exceptional position of the Lord Chancellor, one of the country’s oldest constitutional offices, who was entrusted with a combination of legislative, executive, and judicial capacities. The Lord Chancellor served as speaker of the Upper House of Parliament, the House of Lords, as a member of the executive branch and member of the senior cabinet, and as the head of the judiciary. The Constitutional Reform Act established new lines of demarcation between 10

Jonatan L. Entin, Getting What You Pay For: Judicial Compensation And Judicial Independence, Utah Law Review, 2011, p. 25.

Judicial Independence, Liberty, Democracy, and Int. Economy

19

the Lord Chancellor and the judiciary, transferring all the judicial functions to the Lord Chief Justice and entrusting the Lord Chancellor only with what are considered administrative and executive matters.11 Thus, the United Kingdom, where the first phase of judicial independence began over three hundred years ago, illustrates vividly the mutual impact of national and international law and jurisprudence in the area of judicial independence. It demonstrates a cycle of mutual normative impact and crossconceptual fertilization. In this process, concepts and ideas have become enriched as they have been implemented in successive judicial and political systems, as each system has enhanced and deepened the concepts and ideas it actualized. In addition to the United Kingdom’s instructive illustration, similar developments of conceptual cross-fertilization can be seen internationally – in European Union law, in civil law countries such as Austria, and in other ­common law jurisdictions as well. III

The Five Foundations of a Culture of Judicial Independence

It is important that the judiciary operate in an environment that I define as the culture of judicial independence.12 The culture of judicial independence requires five foundations which must be carefully considered and built by the legal and professional elite and by the political leadership. A recently published volume offers a detailed analysis of the ideas of culture of judicial independence. The volume is a result of the ongoing International Project of Judicial Independence and the series of international conferences conducted by the International Association of Judicial Independence and World Peace. The book, edited by Professor Christopher Forsyth and myself, contains contributions by distinguished scholars who consistently take part in the project. Among others they include: Tassaduq Jillani (Pakistan), Neil Andrews (Cambridge), H.P. Lee (from Moanash University), Marcel Storme (Ghent), Anton Cooray (City University of Hong Kong), Markus Bechel (Liechtenshtein), Hiram Chodosh (Utah Law school), Louis Blom Cooper (United Kingdom), Cy Das (Malaysia), Wayne McCormack (Utah), and Walter 11

12

For analysis of the United Kingdom see Neil Andrews, The United Kingdom’s Supreme Court: Three Sceptical Reflections Concerning the New Court, Utah Law Review, Volume 2011, Number 1, p. 9. See Shetreet, Creating A Culture of Judicial Independence, in Shetreet and Forsyth, Eds. of Judicial Independence: Conceptual Foundations and Practical Challenge, p. 17 ff. (Martinus Nijhoff 2012).

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Rechberger (University of Vienna). These contributions are in addition to the chapters written by editors Christopher Forsyth and Shimon Shetreet. The culture of judicial independence is created on five essential pillars: creating institutional structure, establishing constitutional infrastructures, introducing legislative provisions and constitutional safeguards, formulating adjudicative arrangements and jurisprudence, and maintaining ethical traditions and codes of judicial conduct. The culture of judicial independence in every jurisdiction is based on a number of levels: the institutional level, which regulates the matters relative to status of the judges and jurisdiction of the courts, and the constitutional level, which embodies in a constitution the institutional aspects and insures that the independence of the judiciary shall not be adversely affected by legislation or by executive action. An additional level, the legislative level, which regulates in detail the constitutional principles, and lastly the adjudicative level, which is the jurisprudence of the courts, provides for interpretation and additional elements in all the levels. From the review of the court decisions on the matter of judicial independence, it is possible to conclude the substantive elements that each country is providing for the rules to create culture of judicial independence and maintaining this culture. The emphasis on fostering a culture of judicial independence was recognized by the added paragraph 1.4 to the Mt. Scopus International Standards of Judicial Independence approved in the Ghent Conference of the JIWP Association conference in October 2012. This paragraph reads: Every society and all international bodies, tribunals and courts shall endeavour to build and maintain a culture of judicial independence that is essential for democracy, liberty, rule of law and human rights in domestic system of government and is a necessary foundation for world peace, orderly world trade, globalized markets and beneficial international investments. 1.4.1 The culture of judicial independence is created on five 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.13 Sections 1.4.2 through Section 1.4.6 give further details on the five foundations of a culture of judicial independence. 13

See http://www.jiwp.org/#!mt-scopus-standards/c14de.

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It must be emphasized that the culture of judicial independence is built both on formal and informal rules and traditions. International law plays a significant role in creating the culture of judicial independence in domestic law. The case of England illustrates very clearly the impact of international law on national law as well as to illustrate the earlier impact of the English law and constitutional principles of judicial independence on the United States Constitution and other legal cultures in developing judicial independence. I  have elsewhere referred to this process as the normative cycle of international and national law in the area of judicial independence.14 International law influences domestic law by virtue of international human rights treaties that provide for principles of fair procedures and for the right to be tried before an impartial and independent tribunal. In addition to international treaties, there are international standards that non-governmental and academic study groups have developed. A recent example includes the Mt. Scopus International Standards on Judicial Independence (‘Mt. Scopus Standards’) of the JIWP Association.15 The principle of judicial independence is a core value of the justice system in a liberal democracy.16 Judicial independence is one of the fundamental values of the administration of justice. These values also 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.17 The culture of judicial independence can only exist in a system based on separation of powers. After such is established, the constitution of judicial independence is not a matter of course. It is constantly subject to challenges, sometimes by other branches of government, and at other times as a result of varying internal developments. Those who are responsible for formulating and creating the culture of judicial independence are the political leaders, who are also responsible for preserving the culture after it is shaped. The role of the judges is expressed in adjudication, in court decisions, and in laying down appropriate ethical rules while making judicial selections and appointments. Sometimes, judges are 14 15 16 17

See Shetreet, supra note 9. Mt. Scopus International Standards of Judicial Independence (Mar 19, 2008). Shetreet, Core Value of judicial independence and Accountability in, HP Lee, Ed., Comparative Judiciaries ch 3 (2010). Neil Andrews, A Fresh Start: The Four Pillars of Civil Justice In culture of judicial independence in Shetreet and Forsyth, supra note 12, ch. 5.

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also involved in court administration and assist in the creation of constitutional infrastructure and constitutional framework necessary to maintain the judiciary. The culture of judicial independence in each jurisdiction must facilitate and insure judicial independence in the substantive adjudication of both public and constitutional law, as well as in the private law in all its aspects. In addition, the culture of judicial independence must insure institutional and administrative functioning of the judiciary as an institution as well as the substantive and administrative functioning of the individual judge. One of the foundations of a culture of judicial independence is having a code of judicial ethics. In most common law jurisdictions there has been a shift from unwritten judicial traditions on judicial conduct to a practice of written codes of judicial conduct. In the United States, the American Bar Association (‘ABA’) drafted a code of judicial conduct in 1924.18 The aba’s Revised Updated Code of Judicial Conduct is currently embodied in the 2011 Model Code of Judicial Conduct.19 There is also a written judicial code for Federal Judges adopted in 197320 and there are codes of Judicial Conduct in various individual states such as in California and Texas.21 In Canada, judges adopted the Principles of Judicial Ethics in 1998.22 In Australia, the judiciary adopted a Code of Judicial Conduct in 2002.23 The judicial code adopted in Australia in 2002 played a significant role in the later adoption of the Guide to Judicial ethics in the United Kingdom. In England, two codes of judicial conduct were adopted. The Guide to Judicial Conduct was adopted in 2008 by the Judges’ Council of England and

18 19

20 21

22 23

American Bar Association 1924 Cannons of Ethics – accessed at www.americanbar.org/ content/dam/aba/migrated/cpr/pic/1924_canons.authcheckdam.pdf. See the Model Code of Judicial Conduct 2011 – accessed at www.americanbar.org/ content/dam/aba/administrative/professional_responsibility/2011_mcjc_table_of_con tents.authcheckdam.pdf. See the Code of Conduct for US Judges 1973, as amended – accessed at www.uscourts.gov/ Viewer.aspx?doc=/uscourts/RulesAndPolicies/conduct/Vol02A-Ch02.pdf. See the California Cannons of Ethics 2003 – accessed at www.courts.ca.gov/documents/ ca_code_judicial_ethics.pdf, as well as the Texas Code of Conduct – Accessed at www .legalethicstexas.com/Ethics-Resources/Rules/Texas-Code-of-Judicial-Conduct.aspx. Canadian Judicial Council, Ethical Principles for Judges (1998) – accessed at www .cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf. Council of Chief Justices of Australia, Guide to Judicial Conduct (2002) – accessed at www.aija.org.au/online/GuidetoJudicialConduct.pdf. For the practice in Australia see Mr Justice Thomas’ study, Judicial Ethics in Australia (2nd ed., 1997).

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Wales, and applies to the English judiciary.24 A year later, in 2009, the United Kingdom Supreme Court adopted a Guide to Judicial Conduct.25 The Guide of Judicial Conduct in the United Kingdom and the other codes of judicial ethics have normative, not merely persuasive, value based on the fact that many of the provisions in the Guide are declaratory of already existing law, such as the law of bias,26 the rules are declarative of longstanding and established practices of judicial conduct that may not be breached regardless. Also the obligation to follow the Guide derives from the duties of the judicial oath.27 IV

Constitutional Protection of the Judiciary: The Significance of Providing the Highest Normative Safeguards

In the normative analysis of the regulation of judicial issues, it must be recognized that certain matters should be regulated in the constitution whereas others should be regulated by ordinary legislation. When a matter is regulated by ordinary legislation, the legislature can effect an amendment by simple majority. In contrast, protection granted by the constitution is modifiable only by constitutional amendment. Therefore, in order to better guard judicial ­independence and other fundamental values of the justice system, issues such as the terms of office for judges should be protected in constitutional provisions.28 24

See the Guide to Judicial Conduct (for General Courts) – accessed at www.judiciary.gov .uk/Resources/JCO/Documents/Guidance/guide-judicial-conduct-aug2011.pdf. 25 See the Guide to Judicial Conduct 2009 (UK Supreme Court) – accessed at www.supreme ­court.gov.uk/docs/guide_to_judicial_conduct.pdf. 26 For reliance on the existing law, please see Paragraph 3.7 of the UK Supreme Court Guide to Judicial Conduct. Recent United Kingdom cases include Porter v Magill [2002] 2 AC 357, Locobail (UK) Ltd v Bayfield Properties Ltd [2002] QB 451, Re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR 700 and Helow v Secretary of State for the Home Department [2008] 1 WLR 2416., R. v. Bow “Street Metropolitan Stipendiary Magistrate and others” ex parte Pinochet Ugarte (No. 2), House of Lords, [1999] 1 All ER 577, [1999] 2 WLR 272. see also S. Shetreet, Standards of Conduct of International Judges: Outside Activities, 2 The Law and Practice of International Courts and Tribunals 127 (2003). 27 The reference to the judicial oath is found in Chapter 1 of Australia’s Guide to Judicial Conduct, Paragraph 1.1; in Paragraph 2.2 of the UK Supreme Court Guide to Judicial Conduct; in the Guide to Judicial Conduct, England Judges’ Council, Forward and Paragraphs 2.2 and 2.3. 28 Shetreet, Judicial Independence: New Conceptual Dimensions and Contemporary Challenges, in Shetreet and Deschenes, Judicial Independence: the Contemporary Debate pp. 590–681, (1985).

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For example, the composition of the Supreme Court of the United States – how many judges sit in the court – is not constitutionally regulated and therefore the number of sitting judges has been changed by legislation.29 Amidst controversy over New Deal legislation, then President Franklin Roosevelt attempted to pack the court – increasing the number of judges – through ordinary legislation.30 As to the constitutional level of regulation of matters of the judiciary in Australia it has been suggested by Professor Mathew Groves and Professor H.P. Lee31 that Section  75(v) of the Australian Commonwealth Constitution entrenches separation of powers and the courts power of judicial review. Elsewhere I have identified six principles that should be defined as essential constitutional infrastructure for the protection of judicial independence. The first principle of constitutional protection of judicial independence is the rule against ad hoc tribunals. The second is a prohibition against intentionally stripping courts of their jurisdiction and diverting cases to other tribunals with a view to having those cases disposed of by tribunals that do not enjoy the same conditions of independence as the original courts. The third is the standard-judge principle, or the ordinary-judge principle, which requires that judges be selected to hear cases by a predetermined internal plan or assignment schedule prior to the commencement of the case. The fourth principle requires post-decisional independence of the judgment and its respect by the other branches of the government. The fifth principle is that judges must not be part of the administrative arm of the executive branch; rather, they should be viewed as independent constitutional or statutory officers of the state, and completely separate from the civil service. The sixth principle is that changes in the terms of judicial office should not be applied to present judges unless such changes serve to improve the terms of judicial service,32 or if the matters 29 30

31 32

The Judiciary Act 1789 initially sets the number of Supreme Court judges at six. In later years, the number was increased and decreased until it was finally settled at nine. See, for example, United States v Will 449 US 200 (1980); Chandler 398 US 74; J L Carson and BA Kleinerman, A Switch in Time Saves Nine: Institutions, Strategic Actors, and FDR’s Court-Packing Plan (Netherlands: Kluwer Publishers, 2002) 113 Pub Choice 301; M Nelson, ‘The President and the Court: Reinterpreting the Court-Packing Episode of 1937’ (USA: The Academy of Political Science publishers, 1988)103 Political Science Quarterly 267; GA Caldeira, ‘Public Opinion and The US Supreme Court: FDR’s Court-Packing Plan’ (1987) 81 American Political Science Review 1139. Matthew Groves and HP Lee, The Australian Administrative Law: Fundamental, Principles and Doctrines (2007). For a detailed analysis of Shetreet’s six constitutional principles for protecting judicial independence, see S Shetreet, ‘The Normative Cycle of Shaping Judicial Independence

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relate to economic austerity measures applicable to the general government or state officers.33 V

Contemporary and Historical Challenges of Judicial Independence; Conducting Mutually Respectful Dialogue with Other Branches of the Government

It must be recognized that the judiciary developed from a dispute-resolution mechanism to a significant social institution with an important constitu­ tional  role which participates with other institutions in shaping the life of its community. In the analysis of the relations between the judiciary and other branches of government, a number of topics should be recognized. The legislature should refrain from retroactive reversal of judicial decisions by legislation, or the introduction of delegated legislation by the executive in matters pending before the court. Also attention should be given to the preferred model of the proper relationship between the judiciary and the other branches of the government. Careful analysis demonstrates the need to develop principles for fine-tuning the judicial role in society. This process of fine-tuning should demarcate the proper boundaries between the judiciary and the other branches of government. Important rules for this process are the doctrine of justiciability and the right of standing. A complimentary test for fine-tuning the judicial function is the test of avoiding substantial interruption of the proper boundaries between judicial functions and functions of the other branches of the government. The judiciary must not interfere in a matter when such judicial intervention will bring about such a substantial interruption of relations between the branches of government. In recent decades there has been a substantial increase in the judicial role in society. With the increase in judicial role and greater judicial activism one can notice increased pressure on the political branches of government vis-à-vis the judiciary. What is needed is a dialogue between the judiciary and the other branches as well as mutual respect between the branches of government. Also called for is the fine-tuning of demarcation lines of power between the

33

in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges’ 10 Chicago Journal of International Law 275–332 (2009). Compare Mt. Scopus Standards on protection against salary reductions, Articles 2.20, 2.22 see shetreet and forsyth, supra note 13, at 504.

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branches. The increase in judicial power and the parallel pressure on the judiciary from other branches requires carful protection of institutional and individual independence of the judiciary. The greater constitutional role of the courts has presented a challenge to the judiciary. The United Kingdom declaratory model of constitutional adjudication of the constitutionality of statutes under the Human Rights Act of 1998 or the Canadian override procedure allow a lesser level of tension between courts and legislature. This is because both models leave the final word to the legislature.34 There are two types of challenges in the assessment of judicial independence. One is found in countries where the independence of the judiciary has not been fully achieved, these countries need to strive for the implementation of additional measures to promote the protection of judicial independence. The other challenge occurs when the independence of the judiciary has been achieved but the judiciary still needs to draw lines of powers between the judiciary and other branches of government. The first challenge exists in emerging democracies such as in post-communist East European countries. The second challenge exists in liberal democracies that have enshrined judicial independence. Also in the second group of countries there exists a greater judicial role in society and thereby greater tensions between the judiciary and other branches of governments.35 Russel and O’Brien divide the countries into a number of categories. One group has gone through a process of transformation from different forms of non-liberal regimes towards liberal democracy. This includes Russia, Eastern Europe, and Central America. The liberal democracy facing the challenge of careful demarcation of lines of powers between judicial and other branches of government are such countries as Australia, Western Europe, the United Kingdom, the United States of America, Israel, and Japan.36 VI

The Challenge of Wider Scope of Judicial Review of Counterterrorism and Security Decisions

The wider scope of judicial review of security decisions of the executive and the legislative branches both in constitutional adjudication and in administrative judicial review has often created tension between the judiciary and other 34

35 36

Simon Shetreet, Models of Constitutional Adjudication: A Comparative Analysis, In Ada Pellegrini Grinovner and Petronio Calmon, Editors, Papers presented at the XII Congress Of Procedural Law, 769–798 (Gen, Editora Forensa Rio de Janeiro, 2007). See Russel and O’Brien, Eds, Judicial Independence in the Age of Democracy, chapter 1 p. 3. See Russel and O’Brien, Id. p. 1–2.

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branches of government. International Law and Domestic Law have to face the very serious challenge of balancing between national security interests in the face of terror and the value of protecting suspected terrorists human rights. International jurisprudence in the beginning of this century following the 9/11 attacks evidenced complete acceptance of executive and legislative emergency measures against terror. However, in later years, courts showed a very strict approach toward such executive and legislative counterterrorism measures. The dilemma of shaping a proper attitude toward people of different cultures and religions has been made greater by this challenge, because the security threats and violent terrorist attacks, have been committed mainly by radical Islamic groups. In recent years a dialogue has begun to take place between the legislature and the courts concerning legislative measures introduced to fight terror organizations, particularly after the 9/11 attack. In this context the courts had to deal with judicial review of security decisions such as the detention of unlawful combatant’s, administrative detentions, target killing, and special investigative procedures. The general pattern in most jurisdictions has been to broaden the scope of judicial review of executive decisions in matters concerning national security. While in the past the scope was narrower and courts were reluctant to review decisions on security matters, in recent years the judicial approach has changed and courts do not hesitate to review executive and legislative decisions in national security matters. It is noteworthy that in spite of the increase in terror attacks in recent years the courts demonstrated readiness to review administrative discretion in security matters. In the last decade, numerous countries were subjected to terror activities. In addition to the 2011 attacks in the United States, attacks were directed at train stations in London in 2005, and in Madrid in 2004. In Asia, attacks took place in Bali and a very vicious attack was perpetrated against Bombay at the Taj Mahal Hotel. In 2012, there were attacks in Borgas, Bulgaria, Tolouz, and France. In addition, terror attacks take place in Afghanistan, Pakistan, and Iraq with regrettable frequency. In the first part of the last decade immediately after the 9/11 attacks the courts were impacted by the serious and grave results of these attacks. Legislatures enacted emergency measures and courts in Western countries generally followed the judicial policy of refraining from invalidating executive and legislative measures towards counterterrorism. This trend is illustrated in legislation that was issued in the first part of the last decade and in the court decisions responding to them.

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In the second part of the last decade a change in judicial policy has been noticeable at different points of time in different countries. The change witnessed the policy of judicial restraint in matters of counterterrorism transform into a more activist judicial policy willing to set aside legislation and executive measures. In the United States this line is reflected in the cases dealing with unlawful alien combatants, their adjudication before military commissions, and their detention in Guantanamo Bay. The case of Bomedienne in the United States Supreme Court illustrates this point well.37 The case of Binyum Muhamed in the United Kingdom Court of Appeals is in line with the activist approach in matters of security and counterterrorism. Also illustrative of this approach are cases adjudicated by the German Federal Constitutional Court and the Polish Constitutional Tribunal declaring unconstitutional an act authorizing the government to shoot down a hijacked plane. All these cases were handed down in the second part of this decade. In Rasul, the United States Supreme Court held that the detainees, who were detained as enemy combatants at Guantanamo were entitled to seek habeas corpus38 and that the United States court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned.39 In the case of Charkaui, Canada’s Supreme Court struck down an anti-terror law aimed at allowing detaining foreign suspects indefinitely without trial or filing charges on the basis of secret evidence, while orders to deport them were reviewed.40 Chief Justice Beverley McLachlin wrote: ‘The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process’. In 2002, Khader, a minor of Canadian citizenship, was arrested in Afghanistan by American forces. He was taken to Guantanamo, where he was held until 2004 without being given the right to contact people outside of the detention facility. In January 2010, the Supreme Court of Canada ruled that Khader’s rights had been violated.41 In the WikiLeaks case, security officers expressed 37 Boumediene v. Bush, 553 U.S. 723 (2008). 38 Id. 39 Rasul v. Bush. 542 U.S. 466 (2004; On other cases dealing with detention of alien unlawful combatants see Hamdi v. Rumsfeld, 542 U.S. 507 (2004) at 518, Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2793 (2006). K. Flanagan-Hyde, The Public’s Right of Access to the Military Tribunals and Trials of Enemy Combatants, 48 Ariz. L. Rev. 585 (fall, 2006). 40 Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9. 41 Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44.

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grave concern on the difficulties posed by court decisions of Canada on the efforts to combat terrorism.42 In the United Kingdom the courts imposed restrictions by virtue of the United Kingdom Human Rights Act on administrative detention of persons suspected of terror.43 In the case of Bynyum Mohammad, he confessed to being a member of the Al Qaida terror organization, but he argued that his confession was extracted by extreme torture. Likewise he argued that United Kingdom officials knew that the confession was extracted from him by torture and nevertheless used the testimony taken from him. The United Kingdom did not admit that its authorities knew of the torture but it agreed to pay substantial sums to detainees who were transferred to Guantanamo.44 In Israel, there is a clear judicial policy to review security decisions. In the older line of cases the Supreme Court’s interference with security decisions was generally based on jurisdictional grounds, procedural grounds, or bad faith situations.45 However, beginning in the late 1980’s the Supreme Court ruled that security matters are equal to any other matter for the purpose of judicial review of legality of the action.46 Based on this judicial policy, the Israeli Supreme Court interfered in numerous decisions of security authorities. The court adjudicated and often set aside executive decisions on security matters and military operations. Among these many cases it is noteworthy to mention the decisions regarding target killing,47 the unlawful competence to hold detainees as ‘bargaining cards’,48 the legality of investigative methods,49 and the limits on physical measures applied in an

42 http://www.cbc.ca/canada/story/2010/11/29/wikileaks-canada-csis-judd-cable.html. 43 A and others v Secretary of State for the Home Department (House of Lords) [2004] UKHL 56. http://www.hmso.gov.uk/acts/acts1998/19980042.htm. 44 For series of judgments on the case see: EWCA Civ 65 R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] All ER (D) 118 (Feb); EWHC 3316 (Admin) R (on the application of Aamer) v Secretary of State for Foreign and Commonwealth Affairs [2009] All ER (D) 138 (Dec); EWCA Civ. 158 R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs. also see:http:// news.blogs.cnn.com/2010/11/16/britain-will-compensate-guantanamo-detainees/. 45 For Example, in H.C. 7/48 Al Karbuteli v. Minister of Defense 2 P.D. 5, The High Court invalidated an order for administrative detention because an advisory board had not been set up as required under the relevant statutory provision. 46 H.C. 680/88 Schnitzer v. Chief Military Censor 42(4) P.D. 617 see particularly p. 639. 47 HCJ 769/02 the public committee against torture v. The Government of Israel. 48 DNP 7048/97 Plonim v. Minister of Defense 54 (1) P.D 721. 49 H.C. 5100/94 Public committee against torture in Israel v. State of Israel 53(4) P.D. 617.

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investigation, and on the demarcation of the security barrier between Israel and Palestine.50 The strict approach of the courts vis-à-vis counterterrorism measures which the legislature or the executive exercise is clearly illustrated by the decision handed down by the constitutional federal court of Germany on the shooting down of a hijacked plane. The court decided that the statute authorizing the shooting down of a hijacked plane was unconstitutional. The German government proposed the Luftsicherheitsgesetz (LuftSiG, the Air Safety Act) on 15 January 2005. Its purpose was in part to protect Germany from terrorist attacks from the skies and also to implement measures on security screenings for flights required by European Union regulation.51 The continuous tension between the judiciary and other branches of government as a result of the wider scope of judicial review of anti-terror and security measures require the careful management of these tensions so as to maintain a respectful dialogue between the branches. One can foresee that major terror events will again sway judicial policies in the direction of tipping the balance in favor of strict counterterrorist measures. VII

Defining the Role of Constitutional Tribunals in a Democratic Society

Significant development took place regarding the judiciary in different parts of the globe. In the post-World War II era, Europe saw the emergence of an independent judiciary in post-Facist Italy, Germany, and later Spain and Portugal. In all these jurisdictions the establishment of centralized constitutional courts introduced a culture of constitutional judicial review of statutes. The adoption of judicial constitutional review by a specialized high constitutional court or tribunal distinguishes Italy, Germany, Spain, and Portugal. However, another trend was dominating the judicial constitutional scene. Judges of the constitutional court were being elected by the political branches, unlike the regular judiciary, which utilizes a career judiciary. Sometimes the 50 51

HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel PD 59(5) 807(2004). Roy Stephen Brown, ‘Shooting Down Civilian Aircraft: Illegal, Immoral and Just Plane Stupid’ (2007) 20 Revue québécoise de droit international 57. The decision in UK and in other countries will not follow the German lime: Council of Civil Service Unions v Minister of State for Civil Service (Government Communications Headquarters) [1985] AC 374. See also UK Ministry of Justice, Review of the Executive Royal Prerogative Powers: Final Report (October 2009) available online at accessed 22 April 2010.

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special constitutional court is composed of a combination of representatives of constitutional officers of the state, speakers of legislative bodies, and heads of the executive and judicial branches. This was motivated partly by the desire not to use the normal process of judicial selection that is employed for the ordinary judiciary, which is a career judiciary with judicial hierarchical dominance over the judicial selection process. It was also in some jurisdictions motivated by the democratic restructuring of former dictatorship. The French Constitutional Council which exercises the power of judicial review of statutes in a pre-legislative stage is comprised of nine members, each of whom holds office for a non-renewable term of nine years. One third of the membership of the Constitutional Council shall be renewed every three years. Three of its members shall be appointed by the President of the Republic, three by the President of the National Assembly, and three by the President of the Senate. In addition to the nine members provided for above, former Presidents of the Republic shall be ex-officio life members of the Constitutional Council. The President of the Republic shall appoint the President of the Constitutional Council. He shall have a casting vote in the event of a tie.52 As reported by President Marc Bossyut, the President of the Constitutional Tribunal of Belgium,53 the courts in Belgium dismissed a challenge of the qualification of political members of the constitutional tribunal to sit on a case adjudicating the issue of a statute’s constitutionality. The Constitutional Court in Belgium is composed of twelve members; six of them are former politicians. There were some requests of recusal on the basis of bias,54 regarding the fact that the former politicians who sit in the court were involved during their term in legislative office with the legislative matters that are now adjudicated by the Constitutional Court. According to the Court, having participated as a member of parliament in the decisionmaking with respect to a particular legislative provision and then later sitting as a constitutional judge as a former politician in the capacity of a constitutional judge albeit as a former politician is not a cause for disqualification and is not to be compared to a judge sitting twice in a different capacity as a magistrate in adjudication of the same case. In the framework of a preliminary question, submitted to the Court by the highest administrative court (the Conseil d’etat), on the constitutionality of the 52 53 54

ARTICLE 56(1) of the French Constitution. See President Marc Bossuyt, The Independence of the Judiciary in Belgium, Ch. 9 of this volume. See Id.

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law on the financing of political parties, two associations requested the recusal of five judges of the Constitutional Court.55 In its judgment, the Court, referring extensively to several judgments of the European Court of Human Rights, rejected the request. The court did stress that the consequence of the application of the grounds of recusal may be that the court would become unable to function. The Court also stressed that it is composed in an equilibrated manner (linguistically, politically, and professionally) and that those equilibriums are a guarantee of its impartiality. The Court considers that sympathy, or even membership of a political party, or association not being political parties, does not imply automatically that the person concerned agrees with every answer that party or association may give on the multitude of questions raised in society and that, more in particular, membership of a Masonic lodge does not raise justified doubts on the objective impartiality of a judge, since his oath as a magistrate takes precedence over whatever social obligation.56 Few countries adopted pre-legislation constitutional review. In Italy, this type of review exists, but only regarding certain types of bills. In Norway, the legislature may ask for an opinion prior to legislating. In France however, this model has been adopted as a significant part of the legislative process. The main goal of this model is to ensure the consistency of draft legislation with the constitution prior to the legislation being enacted. Later developments in French constitutional practice allow both pre-legislative and post-legislative constitutional review.57 The European model of a centralised top constitutional tribunal adopted by France, Germany, Italy, and certain other countries resolves the issue of the selection of the judges to top constitutional courts by entrusting the power of judicial review not to the ordinary court system, but rather to constitutional 55 56

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157/2009 of 13 October 2009. In its most recent judgment in October 2011 (155/2011 of 13 October 2011.) in this matter, the Court rejects the request of recusal of a judge based on the existence of his links with the lawyers of parties before the Court in the framework of his academic activities, the Court recalls that judges may be authorized to exercise an academic activity and that the academic freedom, which occupies a prominent place at university and is an aspect of the freedom of expression, requires ample freedom to express their opinion. Relations of an academic nature with colleagues in a university which are lawyers of one or more parties before the Court are not sufficient to provide an objective justification for the concerns expressed by the application. See President Marc Bossuyt The Independence of the Judiciary in Belgium, keynote lecture at the 9th International Conference on Judicial Independence, Ghent, 18 October 2012, ch. 9 this volume. See articles 56 to 61–1 of the French constitution of 1958 as amended see Article 46 of the Constitutional Act no. 2008-724 of July 23, 2008.

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courts that meet requirements of democratic accountability by providing special procedures for selection of members of separate constitutional courts. This model was preferred in view of the recognition that constitutional adjudication requires a wider value-oriented approach, and in view of the fact that the European career judiciary in the ordinary court system cannot ensure democratic accountability in an adequate manner.58 Normally, the process of electing members of the separate constitutional court has a greater political role than the process of appointment in the ordinary system, which is purely professional and generally based on the career judiciary.59 It is noteworthy to mention the accepted view in Italy is that the top constitutional tribunal is an organ of the constitution and does not truly belong to the judicial branch. VIII

The Continuous Struggle for Protecting Judicial Independence

The independence of the judiciary is not attained in a one-time action. It is a continuous and dynamic process that struggles to protect and maintain the individual and institutional position of the judges in the face of challenges presented by ever changing events and developments. A quick journey around the world shows that the judiciary has faced challenges in many jurisdictions. These jurisdictions include countries with long traditions of judicial independence such as Australia and the United States as well as countries with more recent transitional periods such as Russia, Bulgaria, and South Africa. Taking Australia as the first point of our journey it has been suggested by Professor John M. Williams writing in 2001 that the Australian reaction to a more activist and politically prominent High Court also highlights the attempts to reverse High Court decisions recognizing the rights of Australia’s indigenous peoples.60 Though this has increased public discussion of the kind of judicial appointments commission under consideration in the United Kingdom which was in fact introduced in 2005, no Australian government has shown any 58

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federal of office of term the for limitation time of absence the regarding criticism the for reason the is This justices. See Judith Resnik, ‘Judicial Selection and Democratic Theory: Demand, Supply and Life-Tenure’, 26 Cardozo Law Review, 579 (2005) Stras, David R. and Scott, Ryan W., ‘Retaining Life Tenure: The Case for a Golden Parachute’. Washington University Law Quarterly, Vol. 83, 2006. S. Shetreet and J Deschenes, Judicial Independence: The Contemporary Debate (1985): John Bell, Judiciaries Within Europe: A Comparative Review (Cambridge 2006). See Williams, Judicial independence in Australia, in Russell and O’brien, supra note 35, at P. 173.

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s­erious interest in such a reform. Professor Williams noted that senior Australian judges, in a country remarkably ill-prepared for the age of judicial activism, by issuing their own declaration on the principles of judicial independence, give the sense of being a judiciary virtually under a state of siege. In Australia the Minister of Justice or his equivalent, is responsible for administrative personnel, but in all matters pertaining to the business of the court, they are responsible to the Chief Justice. Court buildings are the responsibility of the Minister and the Department is responsible for public buildings. The exception is the High Court of Australia, which is solely responsible for its own administrative personnel and buildings. Section 72(iii) of the Australian Constitution provides that the justices of the High Court and of the other courts created by the parliament ‘…shall receive such remuneration as the parliament may fix; but the remuneration shall not be diminished during their continuance.’ As the Hon. Justice M.D. Kirby recorded in 1985,61 in 1981 the Prime Minister requested the justices of the High Court of Australia to agree to accept a reduction in their salaries because of the economic situation at the time. The justices refused, although they made separate individual arrangements.62 Concerns about the pressures from other branches on the judiciary were voiced by judges in Australia.63 The authors Enid Campbell and H.P. Lee quoted Justice Hope and Justice Kirby sounding concerns.64 Importantly, these authors noted: ‘There is a growing concern over what some perceive to be attempts by the other organs of government to erode the standing and the independence of the judicial institutions’.65 A strong commitment to judicial independence has been built into South Africa’s new democratic constitution. The constitution provides for a judicial system that combines a European-style constitutional court with the English 61 62 63 64

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Kirby, Australia in Shetreet and Deschenes, Judicial independence supra note 5, at 8. J. Bennet, Keystone of the Federal Arch (History of the High Court of Australia), Canberra, A.G.P.S., 1980, 46. H.P. Groves and Professor Mathew Lee, Australian Administrative Law: Fundamentals, Principles and Doctrines (2007). Quoting Justice RM Hope’s Statement on his retirement from the Court of Appeal in New South wales in 1990 from the court; Challenges to, indeed attacks upon the integrity, and at times the independence, of judges have increased significantly in the last ten years Campbell and Lee, The Australian judiciary, p. 1 (2001 Cambridge U Press). Enid Campbell and HP Lee, The Australian Judiciary, (2nd ed. 2012). In a paper I published in 1986 I was critical of the New South Wales Judicial Officers Act. See The Limits of Judicial Accountability: A Hard Look at the Judicial Officers Act, 1986, 10 New South Wales Law Journal 4–16, (1987).

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common law system of magistrates and superior courts, the latter staffed by experienced barristers. This system is facing a tremendous challenge. It must provide the stability and reassurance South Africa needs at a time of a rapid social and political change. At the same time, as a powerful institution whose personnel will for some time come predominantly from the white minority, it must also show that it is responsive to the needs of the ordinary South African. The key institution for balancing judicial independence and accountability in the new South Africa is the Judicial Service Commission (‘JSC’). The jsc plays the lead role in judicial selection and other personal matters. Its openness and pluralistic composition provide some assurance of independence and responsiveness in judicial administration, though the jsc is vulnerable to the political agenda of the governing party. The jsc appears to be the common law analogue of the national judicial councils in the civil law countries of Western Europe.66 Professor Forsyth submitted a highly critical report on the operation of the jsc regarding misconduct of a judge’s intervention in the proceedings against President Zuma which had been conducted in a court other than his own.67 This incident brought about the adoption of an amendment to the Mt. Scopus Standards approved in Vienna in 2011, which reads as follows: 7.12. Except in cases of legitimate consultations a Judge shall not approach other judges not sitting with him on the same panel on pending cases. There are direct attacks on courts following court decisions. This is illustrated by events in Bulgaria and Russia. The ruling majority in Bulgaria responded to a Constitutional Court ruling against the Communist Party by cutting the court’s budget. This created a situation where bad remuneration, combined with poor working conditions, make it difficult to attract well qualified candidates to judicial service.68

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Hugh Corder, Seeking Social Justice? Judicial Independence and responsiveness in a Changing South Africa in Peter H. Russell and David M. O’brien editors, Judicial Independence In the Age of Democracy: Critical Perspectives From Around the World, pages 201–203 (University Press of Virginia, 2001). C Forsyth, The Failure of Institutions: The South African Judicial Service Commission and the Hlophe Saga in Shetreet and Forsyth, Culture of Judicial Independence, ch. 3 (2012). see also ch. 2 This Volume. A.E. Dick Howard, Judicial Independence in Post-Communist Central and Eastern Europe, in Peter H. Russell and David M. O’brien editors, Judicial Independence In the Age of Democracy: Critical Perspectives From Around the World, pages 95, 97 (University Press of Virginia, 2001).

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Russia provides a salient example of a system that has challenged the concept of judicial independence. The greatest challenge to Russian judicial independence is the close relationship between the executive branch and the judiciary,69 resulting in a lack of sufficient judicial independence. This challenge can be seen by subjective case assignments and reassignments, and the pressures exerted on judges by both the executive branch and higher ranking judges.70 One such example of an interference with judicial independence in Russia can be seen in the Zorkin-Yeltsin affair. After the collapse of the Soviet Union, Chief Justice Valery Zorkin led the constitutional court in several cases involving the Post-Soviet era political transition. These cases were controversial, and included both an invalidation of President Yeltsin’s decrees and a finding that Yeltsin’s actions were unconstitutional. In response to these and other decisions, Yeltsin shut down the constitutional court. However, the court’s perspective was notably different after reopening; it began to regularly agree with government actions.71 Justice Kirby’s 1985 report contained strong criticism of Australia’s Chief Justice in 1975.72 Even in the United States there have been challenges to judicial independence. The assaults on the court from congress have spanned throughout history. The strongest, and maybe most known, is the Roosevelt ‘Court Packing Plan’.73 President Roosevelt saw his New Deal Legislative plan 69

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Jackson Dihel. In Russia ‘Legal Nihilism as Usual’ Wash Post A17 (July 28, 2008); Peter H. Solomon and Todd S. Fogelsong, Courts in Transition in Russia: The Challenge of Judicial Reform 47–49 (westview 2000). Fuhrmann and Bowring, Diagnostic View of the Court System in Russia at 5. Another case that demonstrates judicial independence problems in Russia can be viewed in the case Kuesinka v. Russia, App No 29492/05nEur Ct HR (2005). For further details see Shimon Shetreet The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges. 10 Chicago Journal of International Law, p. 273 (2009). ‘Criticism of the former Chief Justice of Australia, by successive leaders and members of the Australian Labour Party, followed his decision to tender advice to the Governor – General immediately prior to the dissolution of the Commonwealth Parliament in November 1975. This criticism has been frequent, bitter and widely published, both in parliament and outside. However, there is a probably a distinction in the public mind between the conduct of the Chief Justice as a judicial officer and his conduct in tendering advice to the Chief Exceutive’. Michael Kirby, Australia, in Shimon Shetreet and Jules Deschenes, Judicial independence: The Contemporary Debate, 8 at 15 (1985). See William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford Univ. Press, 1995).

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repeatedly ­frustrated and disrupted by the Supreme Court; sixteen New Deal Laws were struck down during a 13-month period. Therefore, President Roosevelt devised a plan to pack the Court and add one justice for every current member of the Court who served ten years and who did not retire at the age of seventy, the addition was limited to a total of six, thus potentially creating a court of fifteen. The proposition raised large opposition because it was perceived as an attack on the Court. The Court’s reaction to the ‘Packing Plan’ manifested in two ways. First, the Court dramatically reversed its position regarding New Deal Legislation. The first and most important decision was approving a Washington state minimum wage law for women and children on March 29, 1937.74 Secondly, Justice Willis Van Deventer retired on May 18, 1937, opening the way for Roosevelt’s first court appointment. The appointment of loyal New Deal senator Hugo L. Black turned the Supreme Court to a liberal majority. After these two developments there was no need to continue the court packing plan. The senate recommended it to its judiciary committee where it was buried. Professor Abraham drew an interesting lesson from this historical showdown. He wrote that even though it seems Roosevelt won his battle against the Supreme Court, the struggle over the aborted bill indicated that the country preferred the judiciary over the other two branches.75 Another issue in the United States was the diminution of judicial salaries. The basic principle that judicial salaries may not be reduced seems well established, and the prospect of punitive or discriminatory taxes directed at the judiciary appears remote. The most challenging issue relating to judicial compensation concerns cost of living increases. Under existing doctrine, it is not clear that the simple failure to approve such increases violates the Compensation Clause of Article III of the United States Constitution because those increases might not have vested until the day they actually would take effect. On the other hand, the statutory change, which requires explicit congressional approval for judicial pay raises, does pose troublesome constitutional questions. Under this arrangement, only judges must obtain legislative authorization for cost of living adjustments, while the ­differential treatment might well rise to the level of discrimination against

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West Coast Hote v. Parriash, 300 U.S 379 (1937). For details see Henry J. Abraham The Pillars and Politics of Judicial Independence in the United States, in Peter H. Russell and David M. O’Brien, editors Judicial Independence In the Age of Democracy: Critical Perspectives From Around the World (University Press of Virginia, 2001) pages 32–33.

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the judiciary that the Supreme Court has found to contravene the Com­ pensation Clause.76 IX

Maintaining Proper Balance between Independence and Accountability

The importance of an independent judiciary is reflected in the legitimate expectations of a democratic society that effective judicial remedies will be available both in private law disputes as well as in public interest questions. The business community and private individuals look to the court for effective remedies in private law disputes. Society also expects to have effective judicial review of government decisions (i.e. administrative law review). As suggested by the late Sir David Williams, judicial independence is, of course, an accepted and even expected idea. But the continuing academic discourse and legal controversy refer to the difficulties. Sir David mentioned that the entire issue of the Journal of the American Academy of Arts and Sciences for Fall 2008 was devoted to judicial independence, and the opening contribution asks why and from what. The writer, Linda Greenhouse, emphasizes the question ‘from what’. We expect the judges to be protected from overt political pressure and retaliatory dismissal. But judges are also expected to be accountable and to be restricted by certain duties and responsibilities. Judges are expected to be guided by precedent. Judges are subject to the obligation of respecting the roles of the co-equal branches of government, and they owe a duty to keep the norm of impartiality.77 Lord Brown analysed the so called unaccountability of United Kingdom judges, due to the fact that superior judges may by law and practice be removed only upon an address of both Houses of Parliament.78 Lord Brown does not see this as a lack of democratic legitimacy. Rather, Lord Brown sees the protected 76 77

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Jonathan L. Entin, Getting What You Pay For: Judicial Compensation and Judicial Independence, 2011 Utah Law Review 25. See the papers in the same issue by former Justice Sandra Day O’Connor and by Justice Stephen Breyer. Stephen Burbank of the University of Pennsylvania Law School asserted in another paper in that issue that judicial independence ‘is merely the other side of the coin from judicial accountability’, but he added that judicial accountability should be owed in part to the people’s representatives ‘who appropriate the funds for the judiciary and whose laws the courts interpret and apply’. The papers are available at http://www .amacad.org/content/publications/publication.aspx?d=803. C. Forsyth et al, Effective Judicial Review as a Cornerstone of Good Governance (2010), p. 208.

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status of the judiciary as serving a valuable democratic role: judges ‘are better placed than government to secure minority rights and interests and to safeguard the enduring values which all too easily are lost sight of in times of national danger or in the face of popular prejudice’. A recent expression of the commitment to the principle of judicial independence in the United Kingdom is Section 3 of Constitutional Reform Act 2005 which provides that: ‘The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary’. It also prohibits attempts to influence judicial proceedings: ‘The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary’. It also requires the political leaders to respect judicial independence. It provides that: ‘The Lord Chancellor must have regard to (a) the need to defend that independence; (b) the need for the judiciary to have the support necessary to enable them to exercise their functions; (c) the need for the public in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters’.79 In Justice French’s foreword to the 2nd edition of the Australian Judiciary he quotes a statement made by Justice R.M. Hope on the pressures of judicial independence: While judges and the judicial system must be sufficiently robust to be subject to informed criticism, the attrition of continual uninformed and unjustified criticism can cause great harm to the system itself. In recent times, Lord Chancellors frequently emphasized the importance of judicial independence.80 It is noteworthy that in 1973 Tony Jolowicz rightly emphasized the principle of judicial independence stating that: ‘Without a judiciary which can and will administer law fairly and fearlessly between the parties, no other guarantee given to the litigants by the law is likely to be of value’.81 In addition to Section 3 of the Constitutional Reform Act 2005 which is 79 80

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For an Analysis see Shetreet and Turenne, Judges on Trial: Independence and Accountability of the English Judiciary, ch. 1 (Second ed. 2013). See, Lord Mckay LC (HL Deb vol 576, col 196 WA, 16 Dec 1996), and Lord Irvine LC printed in J Hatchard and P Slinn (eds), Parliamentary Supremacy and Judicial Independence: A Commonwealth Approach (London: Cavendish Publishing limited, 1999) 167. JA Jolowicz in M Cappelletti and D Tallon (eds), Fundamental Guarantees of the Parties in Civil Litigation (Milano, 1973), 121.

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an ordinary Act of parliament, the United Kingdom Human Rights Act 1998 incorporates into United Kingdom law at a higher normative level the provisions of Article 6 of the ECHR which provides for the right to be tried by an impartial and independent tribunal. X

Maintaining Balance between Basic Values of the Justice System: Containing the Pressure for Undue Emphasis on Efficiency (‘Money for Value’)

The proper administration of justice is dependent upon the adherence to certain fundamental values that lie at the foundations of most judicial systems. These values include: procedural fairness, efficiency, accessibility, public confidence in the courts, judicial independence, and the value of constitutionality (in the sense of the constitutional protection of the judiciary). Each of these values allows the courts to fulfil their main function, which is the resolution of disputes.82 These fundamental values are interrelated. Sometimes they strengthen one another, being one the result of, or the condition to, the existence or the application of the other, while at other times there may be a tension between them. A proper legal system is one that advances each of these values on its own, and achieves a suitable balance between them whenever they conflict. The recent decades saw prevailing emphasis on efficiency considerations at the expense of the other basic values.83 XI

Self-Governance of the Judiciary: Greater Administrative Independence to Protect Institutional Independence

In 1985, I referred to the situation that The centralization of the responsibility and supervision of court administration has raised the issue of the relationship between the judiciary and the executive, and made it necessary to examine and delineate the boundaries of the scope of executive control on judges, courts and 82 Shetreet Fundamental Values of the Justice System, 23 The European Business Law Review 61–76 (2012). 83 Shetreet, The Administration of Justice: Practical Problems, Value Conflicts and. Changing Concepts, 13 UNIVERSITY OF BRITISH COLUMBIA LAW REVIEW, pp. 52–80 (1979).

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judicial administration, and court financing. It was also necessary to review the rules, traditions, and practices governing the conduct of judges off the bench, in the various areas of activities.84 In view of this I suggested that: A modern conception of judicial independence cannot be confined to the individual judge and to his substantive and personal independence, but must include collective independence of the judiciary as a whole. The concept of collective judicial independence may require a greater measure of judicial participation in the central adminis­ tration of the courts including the preparation of budgets for the courts, and depending on ones view of the nature of judicial independence, the extent of judicial participation may range from consultation, joint responsibility with the executive, or exclusive judicial responsibility.85 The culture of judicial independence in each jurisdiction must facilitate and ensure judicial independence in the substantive adjudication. This is true both in public and constitutional law, as well as in the private law in all its aspects and branches. In addition, the culture of judicial independence must ensure institutional and administrative functioning of the judiciary as an institution as well as the substantive judicial decision-making and administrative functioning of the individual judges. The process of building self-judicial governance is long and gradual. This process may make significant changes in the judicial branch and might demand changes and cooperation of the other branches of government. The development of self-judicial governance in the United States federal judiciary is a good example of this gradual process for building a culture of judicial independence.86 It took one hundred and forty years for the United States federal judiciary to go from being under total control of the executive to attaining a level of self-judicial governance.

84

Shetreet, The emerging Transnational Jurisprudence on Judicial Indepndence, Shetreet and Deschenes, supra note 59, ch 33, at p. 393(1985). 85 Id. 86 For a detailed description of this process, see: Markus Zimmer, ‘Judicial Independence in Central and East Europe: The Institutional Context’ (2006–2007) 14 Tulsa. J. Comp. & Int’l L 53–87, at pp. 62–69.

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In the beginning of the process, the administration of the federal judiciary and the courts was governed by the Treasury Department.87 Later, in 1849, ­governance over the judicial branch was entrusted to the Department of the Interior.88 In the next stage, in 1870, governance was transferred to the Department of Justice.89 Seventy years later, in 1939, responsibility for the administration of courts and judges was transferred from the executive to the judicial branch.90 A few years later, in 1948, the judicial conference of the United States was established.91 The process of building self-judicial governance has to be gradual, as it requires a long process of education, both on the professional and political level. Self-judicial governance means control over the judicial system by the judiciary. This control includes budgeting, financial managing, managing human resources, and management of a large system. It also includes the professional management, such as managing case assignments, engaging in rulemaking regarding procedures of the courts, and enforcing these procedural rules. Likewise, judicial self-governance includes the development and enforcement of judicial ethics and the code of conduct. In order for the judiciary to engage in self-governance, it should have a wide diversity of abilities. Administrative abilities are required for managing the system of justice. Self-governance also requires the judiciary to act in coordination with the other branches of government though. In addition to these abilities, self-judicial governance requires a judiciary with financial qualifications. Another area of responsibility in the administration of courts is security and safety. One of the central issues in which conflict arises between the judicial and executive branch is the responsibility for the courts’ administration. In this matter, a number of central points should be noted. An important principle is that the executive should not have control of judicial functions or matters regarding the judicial process, such as case assignment, scheduling of trials, judges vacations, and the determination of specific judges’ salaries. Whereas the executive cannot have control of matters at the court level, it may have control of the central level and powers over court administration. This includes budgeting, housing of courts, and the like. The control exerted by the executive at the central level of court administration and judicial matters must be 87 See: Act of Mar. 3, 1849, ch. 98, 9 Stat. 395 (1849) 88 Ibid. 89 See: Act of June 22, 1870, ch. 150, 16 Stat. 162 (1870). 90 See: Act of Aug. 7, 1939, ch. 501, 53 Stat. 1223 (1939). 91 See: 28 U.S.C. §331 (2000).

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e­ xercised with the utmost care for judicial independence, to avoid adverse effects on matters that relate directly to judges and judicial affairs.92 In Israel there is a wide debate on the normative level of the provisions relative to judicial independence in the basic law: the judiciary and in the ordinary legislation.93 It has been suggested that even when ordinary legislation regulates matters relative to judges and courts, they should be viewed as norms of higher level than ordinary legislation. Thus, it has been argued that judicial independence, being one of the fundamental principles of the system of government, enjoys a higher normative value even while it is ­regulated in regular normative legislation. This approach is supported by recourse to international law and jurisprudence on the subject in various jurisdictions.94 XII

Insuring Decisional Independence of Administrative Adjudicators

Another important issue which deserves careful attention is the role and position of administrative tribunal judges and administrative judges hearing cases in administrative agencies. There is an on-going debate in the United States on what is referred to in England as the ‘tribunal judiciary’ and in the United States as ‘administrative judges’. The issue is to what extent the existing practice of administrative judges acting within administrative agencies can be defined as impartial and independent.95 It is possible that other jurisdictions 92

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Mt. Scopus Standards of Judicial Independence provide that: 2.12 Judicial matters are exclusively within the responsibility of the Judiciary, both in central judicial adminis­ tration and in court level judicial administration. Appendix I, Part IX, this Volume. Also see: Shetreet, ‘Judicial Independence: New Conceptual Dimensions and Contem­ porary Challenges’, in Shetreet and Deschenes, note 5 above, at pp. 611–612. See Basic Law: The Judiciary, and see Section 15(c) which regulates the jurisdiction of the high court of justice to adjudicate any matters which it sees necessary to give remedy for the sake of justice and which are not in the jurisdiction of any other court or any other tribunal. See the case of Herut, and the case of The Forum co-existence in the Negev, see Shetreet, Culture of Judicial independence In Israel: Institutional and Substantive Aspects of The justice System in Historical Perspectives, 10 Law and Business 525–583, (2009), at pp. 25. (Hebrew). See: Barak, Interpretation in Law – Constitutional interpretation (Hebrew. Nevo 1993), Vol. 3, pp. 411–435; Shetreet, Normative Cycle, note 11 above. Also see: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Art. 11(d). See Jeffrey S. Lubbers, The Federal Administrative Judiciary: Establishing an Appropriate System of Performance Evaluation for ALJs, 7 Admin L J Am U 589, 613–617 (Fall 1993/

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will follow the United Kingdom’s lead in the form of its legislation providing that judicial independence must be guaranteed to ‘tribunal judiciary’.96 Scholars should pay heed to the issue of judicial independence not only as it applies to superior judges, which is admittedly the level most relevant to the rule of law and human rights, but also to lower court judges, tribunal judges, administrative judges, and other judicial officers. This is critical, for the issue of judicial independence is equally important to the citizen whose matter is adjudicated before one of these levels as it is to the person whose case is heard before a supreme court. It seems that the development of the culture of judicial independence is moving in this direction.97 The 8th International Conference on Judicial Independence held in Vienna by the International Association of Judicial Independence and world Peace decided to add Article 9A to the Mt. Scopus Standards, which deals with important aspects of insuring independence and impartiality for administrative adjudicators.98 Administrative adjudicators are defined as ‘Administrative officers exercising judicial functions in agencies but are not part of the regular court system’ (Article 9A.1). Article 9A provides that, in general, the standards applied to national judges will also be applicable to administrative adjudicators (9A.2). It also imposes a duty on the executive to base their appointment on merit considerations (9A.3), allows probationary periods (9A.4), and evaluation of their performance (9A.10). The section emphasizes that administrative adjudicators may only be removed for cause (9 A.6), and their salary cannot be reduced except as a general economic measure, and that the executive cannot interfere in their decisional independence (9A.9). The section also provides that administrative adjudicators shall not exercise or be assigned non-adjudicatory functions in the same or a related matter in which they perform adjudicatory functions and that there must be a right of appeal on decisions of the administrative adjudicators (9A.8).99

Winter 1994); James P. Timony, Performance Evaluation of Federal Administrative Law Judges, 7 Admin L J Am U 629, 641 (Fall 1993/Winter 1994). 96 Tribunals, Courts and Enforcement Act 2007, ch 15 (2007) (UK), available online at (visited Apr 23, 2009). Section 1 amended the Constitutional Reform Act 2005. 97 Suratt v Attorney-General of Trinidad and Tobago, [2007] UKPC 55 (UK). See also Sir David Williams QC, ‘Themes from the Volume’ in Christoper Forsyth, Mark Elliott and others, Eds., Judicial Review as A Cornerstone of Good Governance, p. 423 (2010). 98 http://www.jiwp.org/#!mt-scopus-standards/c14de. 99 For the full text of Article 9A see Appendix I, Part IX.

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The New Face of the Contemporary Judiciary

A number of patterns emerge when examining the development of the judiciary in England over the last two decades. I have been working over the last three years with my co-author Dr Sophie Turenne of Cambridge University on a second edition of Judges on Trial which was originally published three decades ago. The patterns which clearly emerged generate a fairly new image of the judiciary in England. The patterns reflect the constitutional aspect of certain parts of the judiciary and legal system, greater diversity in judicial appointments, professionalization and formalization of the judiciary, increased managerial accountability, and a greater transnational and European impact. These patterns are shared by judiciaries in other parts of the world as well. There have been several historical developments since the Act of Settlement of 1700 which fundamentally impacted the English judiciary, particularly the Human Rights Act of 1998 and the Constitutional Reform Act of 2005. There has been an important procedural reform in the judicial proceedings that I refer to as the ‘Woolf reform’. The Constitutional Reform Act of 2005 (cra) provided for a separation of judicial functions from the executive in England. It also provided an express provision that Ministers must uphold the continued independence of the judiciary. Although there had been a tradition of judicial independence with the Lord Chancellor in later years, before the passing of the cra, there were anxieties that Britain would be found to be in violation of Article 6 of the ECHR following the case of Pocola v Luxembourg. This, combined with personal tensions within the Cabinet and a power struggle between the Lord Chancellor’s Department and the Home Office, led to the abolition of the Lord Chancellor’s position as it existed before. No doubt there is a clear expectation for a greater diversity in judicial appointments in England. In fact, a significant constitutional change was introduced in the cra to this effect. That was the creation of the Judicial Appointments Commission. The need to restore public confidence in the judiciary led Parliament to require the Judicial Appointments Commission to weigh the need for diversity in judicial selection.100 Yet, under the old system vacancies were quickly filled, and the Judicial Appointments Commission has been criticized for being excessively bureaucratic with a process that suffers from long delay and lengthy procedural requirements.

100 For a detailed analysis see Sophie Turenne, ch. 27, this volume. On the English Judicary in general see Shetreet and Turenne, Judges on Trial, (Second Ed. 2013).

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We expect the judicial selection process to respect the principle of fair reflection of society. In view of the fact that the judicial branch of government has gone far beyond being a mere dispute-resolution institution, it cannot be composed with total disregard for the makeup of society. Likewise public confidences in the courts require that the principle of fair reflection be respected. Another development of the English judiciary is the formalization and professionalization of the judiciary changes in the patterns in the governance of the judiciary. The new methods of governance in hm Courts Service, based on the 2004 and 2008 concordat, led to the model of shared administration of justice between the judiciary and the Ministry of Justice. A ‘quiet revolutionary step’ has been the ‘mini-concordat’, whereby the Judicial Office for England and Wales was created, giving support to the Lord Chief Justice in its administrative role. It is likely to grow further, as the professionalization of the judiciary develops further and the administrative responsibilities of the judiciary keep on expanding. In addition, the development of the judiciary’s internal governance mechanisms should be recognized, as well as the revival of the Judicial Council in 1988 and the greater involvement or representation of the judiciary in various institutions, such as the Criminal Justice Board, and before the Ministry of Justice. Another important factor is the increased emphasis on the proper training of judges. The Judicial Studies Board is not only a body that has greatly developed the range of information offered to judges over time, it also contributes to the ‘modernization of the attitude of the judiciary’. The trend towards formalization has brought about a shift from unwritten traditions of judicial conduct to a written Guide to Judicial conduct in England and abroad. In England, the Guide for Judicial Conduct in general was issued by the United Kingdom Supreme Court and formulated for its members like the Code of Judicial Conduct. Another important development is the introduction of judicial appraisal. Appraisal is often used in other systems to support promotion; it raises a dual concern, however, of undue interference with judicial decisions and of abdication of responsibility when peers heavily base promotions on appraisals. The dramatic changes in the administration of justice have brought about the substantial growth in responsibilities of the Lord Chief Justice, under the cra, in the management of the judiciary. This is particularly needed as the norms, standards, and practices in the area of management of the judiciary determine the way in which judges relate to each other and achieve a sense of collective independence. While the Lord Chancellor is responsible for the administrative functioning of the courts, the Lord Chief Justice is responsible for the judicial function of the courts, including the deployment of individual

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judges and the judicial business of the courts, such as the allocation of work within the courts. Further powers, such as judicial discipline, have also been transferred to him. The greater managerial role of many senior judges means spending more time away from judging and implies that one may now require many different skills from a judge. The above mentioned managerial role builds upon the 1999 Woolf reforms. Recent decades saw the emergence of a greater transnational impact on domestic judiciaries. The growing effect of Europeanization on the English judiciary cultures of judicial independence are built on both domestic and international fronts, and in their more advanced stages consist of a combination of national and international law and jurisprudence. The case study of principles of judicial independence in England illustrates how the English judiciary is open to outside influences, and yet retains its own character. One should recognize the influence of the European case law regarding England under Article 5 and 6 of the echr, including the case of Findlay (1997) on the British Court Martial and Procola v Luxemburg.101 XIV Conclusion We took a fairly long journey into the path of challenges that contemporary judiciary face today, but it is clear that judicial independence must remain a high priority for protection and enhancement. It is essential for liberty and democracy and it is vital for the rule of law both on the domestic and transnational level. 101 Findlay v. The United Kingdom, 1997-I, no. 30. Procola v. Luxembourg, A326 14570/89 (1995). See also to R v Parole Board (2008) (on the application of Brooke and the definition of an ‘independent tribunal’). See Shetreet, supra note 9.

Chapter three

Accountability of Judicial Service Commissions to the Law The Case of South Africa* Christopher Forsyth** I Introduction This paper tells the tale of the difficulties being faced by the courts and the Judicial Service Commission in South Africa over a case of alleged serious misconduct by a senior judge.1 It is a case of personal tragedy, spoiled reputations and ruined careers. But on a more sinister level it suggests, if the allegations are true, a lack of probity and integrity in at least one South African judge. And even worse than this, it seems that the constitutional institution set up to address judicial misconduct – the Judicial Service Commission – is proving inadequate to the task. But the record of the courts, particularly at the appellate level, is more positive. As will be explained below, the Judicial Service * I am particularly grateful to Tom Pascoe for his able assistance in preparing this manuscript for publication. ** Christopher Forsyth is Professor of Public and Private International Law in the University of Cambridge and Extraordinary Professor of Law in the University of Stellenbosch. From 1997 to 2010 he was Director or Assistant Director of the Centre for Public Law. He is the author with the late Sir William Wade QC of Administrative Law (10th ed, OUP 2009) a standard work on the subject recognised as authoritative by courts throughout the common law world. He has written many books and articles in learned journals on all aspects of public law and private international law. His phd thesis was published as “In Danger for their Talents: A study of the Appellate Division of the Supreme Court of South Africa from 1950” (Juta & Co, 1985). He has advised several governments on thorny issues of administrative and constitutional law. He is a practicing barrister, a Bencher of the Inner Temple, and sits as a Recorder in the Crown Court in England. 1 I have previously dealt with this same topic in “The Failure of Institutions: The South African Judicial Service Commission and the Hlophe Saga” in Shereet and Forsyth, The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges (2012) at 69–84. Naturally, I shall draw on this earlier account to explain the latest developments. In particular Sections I, II and III of this article are drawn from “The Failure of Institutions” at 75–76, 73–75 and 78–80 respectively.

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_004

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Commission has been held accountable to the law and is being required by the law to perform its constitutional function. The judge who stands at the centre of this sorry saga is the Hon. Mr Justice Hlophe, Judge President of the Cape. Mr Justice Hlophe grew up in rural Natal during the 1960s and 1970s. Apartheid was at its height. Although from relatively humble origins his ability and determination soon made itself known. As a black man he was inevitably discriminated against in many ways, but he nonetheless succeeded in obtaining a good education and being admitted to one of South Africa’s leading law schools.2 He was subsequently awarded an llm degree and phd by the University of Cambridge. Mr Justice Hlophe might easily have sought a career as an academic outside South Africa. But he returned to South Africa first to the University of Natal as a senior lecturer and then to the University of Transkei as a professor. He had a successful career as a scholar well underway when the political transformation of South Africa commenced in the early 1990s. But now the glittering prizes were laid before him. He was a very able, highly qualified legal scholar at precisely the moment in which the South Africa judiciary was about to be transformed. He was very much in demand. He was appointed a Judge of the Cape High Court at the age of 36 in 1995 and was, I believe, the first full time academic appointed direct to the High Court Bench in South Africa. His youth was both a blessing and a curse. Most judges in South Africa are appointed in their fifties and retire at statutory retirement age of seventy leaving a judicial career of only about fifteen years. Mr Justice Hlophe might reasonably have anticipated a judicial career of thirty four years. Plainly many opportunities for advancement and promotion would be laid before him. He might reasonably anticipate that he would become in due course one of, if not the, most senior and respected judge in South Africa. But at the same time he was young and, moreover, his career thus far had been almost entirely in the academic world. So he lacked the experience of day-to-day practice that a more conventional appointee would have had. And he, perhaps, lacked the maturity an older man would have had in responding to the challenges he faced. Barely four years after his first appointment to the bench the judge presidency – in effect Chief Justice of the region – of the Cape fell vacant.3 Mr Justice 2 Mr Justice Hlophe was admitted to the University of Natal (now the University of Kwa-Zulu Natal) in Pietermaritzburg after studying at the equally famous University of Fort Hare. 3 The Judge Presidency of a High Court is in effective a mini-Chief Justice with administra­ tive  responsibilities (allocating the roll, etc) as well as representative and ceremonial functions.

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Hlophe was, to be frank, still feeling his way as a Puisne Judge but making good progress. There would be many other opportunities in the thirty years ahead in which the Judge Presidency – and even greater offices – would fall vacant and in which he would be the frontrunner. But this was not to be. He was appointed Judge President in 2000. The task that now faced the judge was a daunting one. There were heavy administrative responsibilities and an expectation of leadership. Yet there were doubtless colleagues on the bench who were sceptical of his rapid promotion and saw it as being at the expense of their advancement. Many at the Bar were similarly sceptical and critical especially when the judge’s inexperience showed. This being South Africa, the ugly cry of racism was part of the currency of discourse. Doubtless sometimes this was justified, but oftentimes it was not. The consequence, of course, was much bitterness with compromise and reconciliation made more difficult.4 Anyway there was no doubt that the judge was (and is) a controversial Judge President. Wikipedia lists some eleven controversial incidents in the years from 2004 to 2009.5 Some of these concern politically sensitive or controversial cases which are an inevitably part of a judge’s lot. It is of course proper that such cases be closely scrutinised, but involvement in such cases (and even the making of errors in deciding such cases) do not in themselves raise doubts about a judge’s fitness for office. Others concern the trading of insults between the Judge President and other judges on the Cape Bench, and between the judiciary and the Bar. The Judge President was sued (and is still being sued) for defamation by a quondam acting judge. The most serious allegation, however, concerns the receipt of funds (for services as a pensions fund trustee) from a party before his court.6 We will say no more about these ­matters but instead turn to his current difficulties with the Judicial Service Commission.

4 Hlophe JP in fact made a report to the Minister of Justice on Racism in the Cape Bench and Bar accusing various counsel (who were well known as doughty fighters against apartheid) of racism (without giving them an opportunity to contradict his views). 5 http://en.wikipedia.org/wiki/John_Hlophe (visited 28th July 2013). The page is (inevitably) subject to dispute but I noted no obvious inaccuracy in the various controversies listed. 6 See Forsyth, “The Failure of Institutions: The South African Judicial Service Commission and the Hlophe Saga” in Shetreet and Forsyth (eds.), The culture of judicial indepen­ dence: conceptual foundations and practical challenges (Martinus Nijhoff Publishers 2012), pp. 77–78.

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The Composition and Tasks of the jsc

The composition of the jsc is set out in Section 178 of the Constitution.7 It is conveniently summarised by Professor Corder in the following words: Chaired by the Chief Justice, the JSC consists of representatives of the judiciary and of the advocates’ and attorneys’ professional bodies, a teacher of law, the Minister of Justice and Constitutional Affairs, ten serving members of Parliament drawn from both Houses, and four members designated by the President as head of the executive, after consultation with the leaders of opposition parties. Thus, of the 23 ordinary members of the JSC, fifteen are selected more for their broadly political views than their standing as lawyers, of whom at least twelve are likely to be loyal in the first instance to the ruling party in Parliament.8 It would be wrong to see the jsc as dominated by party politics but it is undeniable that there is a significant political influence in the body. Views will differ on the best composition of a jsc but it is worth noting that the uk equivalent, 7 Section 178(1) provides: There is a Judicial Service Commission consisting of a. the Chief Justice, who presides at meetings of the Commission; b. the President of the Supreme Court of Appeal; c. one Judge President designated by the Judges President; d. the Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member; e. two practising advocates nominated from within the advocates’ profession to represent the profession as a whole, and appointed by the President; f. two practising attorneys nominated from within the attorneys’ profession to represent the profession as a whole, and appointed by the President; g. one teacher of law designated by teachers of law at South African universities; h. six persons designated by the National Assembly from among its members, at least three of whom must be members of opposition parties represented in the Assembly; i. four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces; j. four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly; and k. when considering matters relating to a specific High Court, the Judge President of that Court and the Premier of the province concerned, or an alternate designated by each of them. 8 Corder, “Appointment, Discipline and Removal of Judges in South Africa” in H.P. Lee (ed.), Judiciaries in Comparative Perspective (CUP 2010) 100–101 (footnotes omitted).

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the Judicial Appointments Commission, has no similar political input. On the other hand the South African courts, especially the Constitutional Court, have power to quash legislation enacted by Parliament that breaches human rights. The South Africa courts are significant political actors. The primary task of the jsc is the appointment of judicial officers. Constitutional Court judges are appointed by the President from a list drawn up by the jsc of which there are three more names than the number of vacancies. But with the more senior officers (Chief Justice and Deputy Chief Justice, President, and Deputy President of the Supreme Court of Appeal) the President need only consult with the jsc; and in the case of Chief Justice and Deputy Chief Justice there is the further requirement of consultation with the leaders of the parties in the National Assembly. Less elevated judges are appointed simply on the advice of the jsc. The jsc and the President are obliged to consider “the need for the judiciary to reflect broadly the racial and gender composition of South Africa.”9 In the years since it came into existence the jsc has played a central role in the demographic transformation of the South African judiciary. But our concern in this paper is not primarily with appointment, but with the removal of judges. And here too the jsc has a crucial role. Section 177 of the Constitution provides that: A judge may be removed from office only if (a) the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and (b) the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members. The upshot of this is that, setting aside questions of incompetence and incapacity, the removal of a judge from his office requires a finding by the Judicial Service Commission of “gross misconduct.” When considering an allegation of gross misconduct the JSC sits without its ten serving members of the National Assembly. The Constitution does not specify the procedure to be adopted by the Commission in making its finding. On the contrary, it provides that the jsc “may determine its own procedure, but decisions of the Commission must be 9 Section 174(2) of the Constitution.

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supported by a majority of its members.”10 But, very clearly, a high standard of procedural protection will be expected of its decision-making processes. III

The Zuma Case

The career of Mr Justice Hlophe was not to settle down into placidity after the catalogue of controversial incidents mentioned earlier.11 The current President of South Africa, Jacob Zuma, is also no stranger to controversy. His tale and that of Mr Justice Hlophe now become for a period intertwined. Mr Zuma was an ambitious politician but his path to the highest office was ostensibly blocked by allegations of corruption. These were serious allegations for a financial adviser. Schabir Shaik, an associate of Mr Zuma, had stood trial and been convicted of fraud and corruption concerning a large arms deal at the time that Mr Zuma was Deputy President of South Africa.12 The judge in Shaik’s trial intimated that there had been a corrupt relationship between Shaik and Zuma. Zuma was dismissed as Deputy President by the then President, Thabo Mbeki. He faced the prospect of a trial for corruption. There were several attempts to delay or prevent Zuma’s trial by various interlocutory applications. One of these concerned a challenge to the validity of six search warrants which had been executed against various offices and homes of Mr Zuma and his co-accused (a company called Thint (Pty) Ltd). The warrants were challenged by Zuma on various grounds including that some of the documents seized might have been subject to legal professional privilege. Anyway, these were in the issues that were argued before the Constitutional Court in March 2008. Judgment was given on the 31st July 2008 rejecting the appeals against the validity of the warrants.13 This was the background against which the storm broke. On 30th May 2008 the judges of the Constitutional Court issued a press statement in which it was alleged that Judge President Hlophe had attempted improperly to influence 10 11 12

13

Section 178(6) of the Constitution. See Section 1 above. Shaik was sentenced to approximately fifteen years imprisonment. He was released on parole in March 2008 after serving two years and four months. His release took place under the Correctional Services Act, No 111 of 1998, s. 17, which provides for the release on parole of prisoners suffering from a terminal illness “to die a consolatory and dignified death.” When last heard of Mr Shaik was seemingly in good health, playing golf, etc. Thint (Pty) Ltd and Zuma v National Director of Public Prosecutions [2008] ZACC 13 (CC).

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two of their number to decide the case in a manner favourable to Jacob Zuma. As Professor Corder puts it: The following weeks witnessed a slew of accusation, counter-accusation, rumour, outright denial by Judge Hlophe, calls for his dismissal by political parties and others, and vigorous defence of Judge Hlophe by several commentators… It became known that the two judges whom Judge Hlophe had met and with whom he had discussed the case were Justice Bess Nkabinde and Acting Justice Chris Jafta… [Delays in making the allegations and the responses to them] led to speculation about the politics of the move within the Court itself and within the broader legal profession, as well as counter-complaints of procedural unfairness, both from Judge Hlophe and increasingly vociferously from his supporters. These exchanges culminated in Judge Hlophe (who had been granted special leave of absence by the Minister of Justice pending the resolution of this matter) submitting a counter-complaint to the JSC, alleging that the Constitutional Court’s decision had been politically motivated and threatened the independence of the judiciary.14 An extraordinary position thus materialised: different judges had complained to the jsc about each other! There was a great deal of fuss and vociferous comment (much of it ill-informed) in the newspapers. Allegations of racism and political interference were distributed liberally. But any sympathetic observer of the South Africa judiciary was surely close to despair. The situation deteriorated when Judge Hlophe sought to prevent the jsc’s consideration of the Constitutional Court’s complaint. Judge Hlophe argued that that Court should have given him a hearing before it made a complaint to the jsc. There was also litigation over whether the jsc could consider the complaint and counter-complaint in open or closed proceedings. We shall consider this litigation shortly.15 What became clear was that Judge Hlophe had met separately with Acting Constitutional Court Justice Christopher Jafta and Constitutional Court Justice Bess Nkabinde after argument but before decision in the Zuma matter. What happened during those meetings was sharply disputed.16 14

H. Corder, 2008 Annual Survey of South African Law (hereinafter Corder (Annual Survey)). 15 See Section 4 below. 16 See Freedom Under Law v Judicial Service Commission [2011] ZASCA 59 [32]-[39] for the conflicting accounts of what happened.

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The Constitutional Court alleged that Judge Hlophe had announced to Justice Nkabinde that he possessed a “mandate” to meet with her. He said that “there [was] no real case against [Zuma],” who was being “persecuted.”17 Judge Jafta confirmed that a similar approach had been made to him. Hlophe had allegedly told Justice Jafta that he was “our last hope.”18 Both Judges stated that they had dealt with the matter firmly and rejected Judge Hlophe’s advances. Judge Hlophe issued a lengthy response to the Constitutional Court’s complaint alleging that it was trumped-up and politically motivated. Faced with conflicting accounts of these meetings, the Disciplinary Committee of the jsc decided on the 7th July 2008 “that oral hearings were necessary to resolve the disputes of fact.” The jsc was apparently keen to progress with resolving the controversy before it could fester any further. But it was now delayed for more than one year by a sequence of litigation initiated by Judge Hlophe, who sought to prevent the JSC proceedings by alleging that the complaint itself infringed his constitutional rights.19 The Supreme Court of Appeal eventually found against Judge Hlophe on these issues, although it expressed no view on the merits of the underlying complaints.20 When the matter returned from the courts to the jsc about a year later the legal and political landscape had changed. Jacob Zuma had become President. He had persuaded the Director of Public Prosecutions to drop the corruption charges against him. Furthermore, the term of office of four Presidential appointees on the JSC had come to an end. Four new members had thus been installed.21 This change in membership of the jsc may have affected the outcome of the subsequent proceedings. When the case came before the jsc on the 28th August 2009 it decided (by a majority) not to proceed with the full hearing of the complaint against Judge Hlophe. The jsc’s reasons were, first, while they accepted that Judge Hlophe had said to Jafta and Nkabinde JJ that the Zuma/Thint matter had to be decided “properly,” they did not find that that the complainant judges had with sufficient consistency testified that he had said that the case must be decided in a particular way (i.e. favourable to Zuma).22 In fact, one of the judges said that Judge Hlophe had never said that the case should be decided in a particular 17 18 19 20 21

Ibid at [34]. Ibid at [32]. See Section 4 below. Langa v Hlophe [2009] ZASCA 36. The President in consultation with the leaders of the opposition parties is empowered to appoint four members of the jsc under Section 178(1)(j) of the Constitution. See text to n 7 above. 22 See Freedom Under Law v Judicial Service Commission [2011] ZASCA 59 [47].

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way. This meant that “a hearing would not be necessary as there was no evidence that Hlophe had improperly tried to influence the judges to decide the case one way or another.” The distinction drawn by the jsc between a general injunction to decide “properly,” and a specific statement to decide in favour of one party has been aptly described as: …so absurd as to border on the irrational. It means that if a judge wants to improperly influence [sic] other judges he or she could get away with it as long as he or she never says the magic words: ‘Decide the case in favour of X.’ He or she could say the case must be decided ‘properly’, and can argue what a ‘proper’ decision would be, but this would not, according to the wise people at the JSC, constitute an attempt to influence the judge approached.23 So while it was not disputed that Mr Justice Hlophe had discussed the pending case with Nkabinde and Jafta JJ, this was not “gross misconduct” but at most “unwise, ill-considered, imprudent, not thought through.”24 The jsc refused to entertain a hearing on either complaint. This unpersuasive decision to take no further action against Hlophe was, inevitably, very controversial and disconcerting. Although the jsc received evidence from those involved (mostly in written form) and disclosed that evidence to all those involved, there was no cross-examination to test which of the various accounts given by the Constitutional Court judges and Hlophe jp was to be preferred.25 As Professor Corder remarks, these incidents have: …done considerable harm to the precious level of legitimacy earned by the post-apartheid judiciary, in particular the Constitutional Court, as a secure and independent protector of the Constitution and good governance, and because the arguments raised chiefly in support of Hlophe… have plumbed new depths of irrationality, in which racism features prominently.26 23

Professor Pierre de Vos in “Constitutionally Speaking” at http://constitutionallyspeaking .co.za/a-sad-day-for-our-judiciary-and-the-jsc/ (accessed 28th July 2013). 24 Ibid. 25 See Streicher JA’s account of the jsc proceedings in Freedom Under Law v Judicial Service Commission [2011] ZASCA 59 [31]. 26 Corder, n 8 above, Section ll.

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Judge Hlophe, the jsc and the Courts

The jsc’s continuing involvement in the Hlophe saga has been driven by a rash of litigation commenced by various interested parties. The legal disputes have taken shape over three stages. First, Mr Justice Hlophe’s procedural challenge to the Constitutional Court’s referral of his complaint to the jsc. Second, an ngo’s challenge to the jsc’s decision to take no further action in the case. Third, a failed application for permission to appeal against the Supreme Court of Appeal’s (“sca”) decision on the second matter. The remainder of this article will trace the trajectory of this litigation. A

Part One: Does a Judge Have a Right to be Heard before a Complaint against him Is Made?

On 25 September 2008, the High Court handed down its judgment in Hlophe v Constitutional Court of South Africa.27 This judgment was to be the first in an eruption of litigation concerning Mr Justice Hlophe and the jsc. On appeal, the Supreme Court of Appeal (“sca”) neatly summarised the legal challenges raised by Mr Justice Hlophe at this first stage: This [case] is confined…to two narrow questions of law relating to alleged violations of the Constitution. The first is whether the appellants, as judges of the [Constitutional Court], were obliged in law to afford the respondent, because he is a judge, a hearing prior to laying the complaint against him before the JSC. And the second is whether, having lodged the complaint, they were obliged in law to keep that fact confidential…This judgment accordingly is not concerned with the merit of the complaints to the JSC.28 At first instance, Mr Justice Hlophe was successful. The High Court held that the Constitutional Court had acted unlawfully by issuing a complaint to the JSC, and publishing the details of that complaint, without giving Hlophe JP an opportunity to make representations beforehand.29 27 28 29

[2008] ZAGPHC 289. Langa v Hlophe [2009] ZASCA 36 [7]. Hlophe v Constitutional Court [2008] ZAGPHC 289. The High Court ruled, inter alia, that (i) the Constitutional Court had acted unlawfully by failing to afford Mr Justice Hlophe a hearing before issuing a complaint to the jsc ([43]) and (ii) the publication of details of the Court’s complaint in these circumstances violated his right to dignity ([87]) and equality before the law ([89]).

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The sca disagreed. In a judgment handed down on the 31st March 2009 it observed that: …[Judge Hlophe founded] his case upon the proposition that in making  their decision the appellants were acting institutionally (‘as a court’) in the performance of the judicial function. For there is no doubt that in the performance of the judicial function, by which we mean the adjudication of rights and obligations, judges are bound to observe and apply the substantive rules of law that generally confer a right to be heard upon persons whose rights will be affected by a judicial decision…[But] the insurmountable barrier that is encountered by counsel’s submission…is that in making their decision the appellants were not performing a judicial function (or as the respondent would have it, acting ‘as a court’).30 It followed that there was no duty for the Constitutional Court to grant a hearing before issuing a complaint against a judge to the jsc.31 The sca also rejected Mr Justice Hlophe’s challenge to the publication of the complaint: Once having found the appellants did not act unlawfully in laying the complaint we can see no basis for finding that they were obliged to keep that secret… On the contrary there is much to be said for the contrary proposition (bearing in mind the circumstances in which it occurred) that the constitutional imperatives of transparency obliged them to make the fact known.32 Indeed, the sca approved the appellant Constitutional Court judges’ submission that: In the circumstances where the independence of the Constitutional Court had been threatened and the integrity of the administration of justice in South Africa generally, it was considered imperative and appropriate that this be publicly disclosed. Should the facts have emerged at a later stage there would have been a serious risk that the litigants involved in the relevant cases and the general public would have entertained misgivings about the outcome and the manner in which the decisions were reached. It was especially important that the litigants and the general 30 Ibid [45]–[46]. 31 Ibid. 32 Ibid [50].

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public were informed of the attempt and that the Constitutional Court had not succumbed to it.33 Mr Justice Hlophe’s first legal manoeuvre thus failed, and the jsc resumed its consideration of the complaint. On 22nd July, the Commission resolved to hear the relevant evidence behind closed doors. This element of the Commission’s decision was successfully challenged in an urgent application to the High Court and quashed. The evidence was eventually aired in open proceedings.34 As we have seen, however, the Disciplinary Committee of the jsc subsequently decided on the 28th August 2009 to take no further action against the Judge.35 It was this decision which exposed Mr Justice Hlophe’s case to a second round of scrutiny by the courts. B

Part Two: Judicial Review of the Decision to Take No Further Action

The sca handed down its judgment in Freedom under Law v Judicial Service Commission on the 31st March 2011.36 The applicant was an ngo whose mission was to “promote democracy under law, advance the understanding and respect for the rule of law and the principle of legality and secure and strengthen the independence of the judiciary.”37 The fact that the application was not made by a consortium of the original complainant Constitutional Court judges reflected the prevailing feeling that the matter had been dragging on for so long, and doing so much damage to the reputation and standing of the judiciary, that it should be allowed to die away. The applicant targeted its challenge at the jsc’s decision on the 28th August 2009 to mothball its investigation of the complaint raised against Hlophe JP. It pegged its challenge to Section 165(4) of the Constitution, which provides that “[o]rgans of the state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.” In essence, the applicant argued that the 33 Ibid. 34 See Mail and Guardian Limited v Judicial Service Commission [2009] zagpjhc 29. Malan J held that the hearing should be in public and said [22]: “Any benefit that may or might have been be gained by a hearing ‘outside the intrusive glare of publicity’ will be discounted by negative perceptions of the judiciary and the administration of justice in general. This matter has attracted immense public interest and has been the subject of a debate in the media. There is every need to ensure the public’s continued access to the issues.” 35 See Section lll above. 36 [2011] ZASCA 59. 37 Ibid at [16].

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jsc’s decision to dismiss the complaint without testing the judges’ conflicting testimonies by cross-examination violated this constitutional requirement. Streicher JA, giving the leading judgment in the sca, agreed. He labelled the jsc’s decision to cut its investigation short as “surprising.”38 In a powerful leading judgement he held that: Any attempt by an outsider to improperly [sic] influence a pending judgment of a court constitutes a threat to the independence, impartiality, dignity and effectiveness of that court. In the present case the allegation is that Hlophe JP attempted to improperly influence [sic] the Constitutional Court’s pending judgment in one or more cases. The JSC had already, when it decided to conduct the interviews with the judges, decided that if Hlophe JP had indeed attempted to do so he would have made himself guilty of gross misconduct which, prima facie, may justify his removal from office. Moreover, it based its decision dismissing the complaint on an acceptance that Hlophe JP probably said what he is alleged to have said. In these circumstances the decision by the JSC to dismiss the complaint on the basis of a procedure inappropriate for the final determination of the complaint and on the basis that crossexamination would not take the matter any further constituted an abdication of its constitutional duty to investigate the complaint properly. The dismissal of the complaint was therefore unlawful.39 Streicher JA was unimpressed by Mr Justice Hlophe’s submission that the court should in any event withhold a remedy on grounds of impracticality. In an analysis which revealed the strength of the feeling behind the Court’s judgement, he observed: It is alleged that a very high ranking judge, the head of one of the biggest divisions of the high court, attempted to influence two of the judges of another court to decide a matter in a particular way. The allegation was considered to be so serious as to constitute gross misconduct which if established may justify the removal of the judge from office. It cannot be in the interests of the judiciary, the legal system, the country or the public to sweep the allegation under the carpet because it is being denied by the accused judge, or because an investigation will be expensive, or because the matter has continued for a long time.40 38 39 40

Ibid at [48]. Ibid at [50]. Ibid [63].

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The sca thus ordered the jsc to revisit its decision to close Mr Justice Hlophe’s case.41 One might have expected the baton to be handed firmly over to the jsc at this stage. But Hlophe JP sought one more bite at the cherry, in the shape of an appeal to the very Court whose members had initiated the complaint against him in the first place! It is to this application that we now turn. C

Part Three: Application for Permission to Appeal to the Constitutional Court

Judge Hlophe sought to appeal to the Constitutional Court against the decision of the sca alleging various infringements of human rights. But an appeal was available only with the leave of the Constitutional Court. As the Court observed in its leave to appeal decision, the application faced a troubling logistical obstacle: The problem is this. Section 167(1) of the Constitution provides that this Court consists of eleven Judges. The Court usually sits en banc, but Section  167(2) provides that a matter before the Constitutional Court must be heard by at least eight Judges. Six of the serving Justices currently appointed to the Court were serving as Constitutional Court Judges when the complaint against the applicant was lodged with the JSC. Three of them recused themselves from the hearing before it was argued. This left the Court with a bare constitutional quorum of eight, including three Justices who were parties to the complaint lodged with the JSC against the applicant and two others who had been involved in attempted mediation. If these Judges are disqualified from hearing the applications for leave to appeal because of their perceived or actual interest in the outcome of the matter, there would be no quorum for this Court to hear and determine the matters.42 41

42

In a judgment delivered on the same day, the sca also quashed the jsc’s decision on a number of more narrow but still important procedural grounds. See Acting Chairperson: Judicial Service Commission v The Premier of the Western Cape Province [2011] zasca 53. Section 178(k) provides that “when considering matters relating to a specific High Court, the Judge President of the Court and the Premier of the province concerned, or an alternate designated by each of them” would be members of the jsc. But in fact the Premier was not at the meeting of the jsc becasue she had not been notified of it. Moreover, decisions were to be taken by majority vote of the members of the JSC and the impugned decision was only taken by a majority of those present (Section 178(6)). Thus the decision was invalid. Hlophe v Premier of the Western Cape Province; Hlophe v Freedom Under Law [2012] ZACC 4 [17].

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Mr Justice Hlophe’s application for leave to appeal thus engaged two constitutional questions of some novelty. First, does the Constitution authorise the appointment of Acting Judges where a quorum would otherwise be unavailable? Second, if not, should the Court entertain Hlophe JP’s application for leave to appeal notwithstanding the apparent conflict of interest?43 The Court considered that these questions fell for determination against the following constitutional context: [The Constitutional] Court is the final and highest court in relation to the constitutional matters that form the subject matter of the applications for leave to appeal. The Court, as constituted for these applications, includes members who may have been perceived to have an interest in the outcome of the proceedings before the JSC… [But] lastly, it is a fundamental right of everyone under the Constitution to have legal disputes decided in the courts or, where appropriate, by an independent and impartial tribunal or forum.44 On the first question, the Court ruled that as a matter of textual analysis the Constitution did not authorise the appointment of Acting Judges in the prevailing circumstances.45 The second question therefore arose for consideration. However, the Court fudged this issue. It obfuscated the merits of Hlophe JP’s application for leave with the broader question of constitutional logic that confronted the Court. It thus disposed of the application in the following terms: A balance needs to be struck between the Court’s obligation to provide finality in this matter (as it would be intolerable to have a case pending indefinitely) and possible injustice to the applicant. These factors weigh heavily in determining the extent to which it is in the interests of justice to enter into the merits, and thus whether to grant leave to appeal. …There is a need for finality. This was not disputed. In determining the extent to which we should consider the merits, regard must be had to whether substantial injustice will be done to the applicant should this Court refuse to grant leave to appeal. The underlying right which the applicant seeks to protect on final instance to this Court is, importantly, a procedural one: the rejection of that right will result in the continuance 43 44 45

Ibid at [22]. Ibid at [29]. Ibid at [33]–[42].

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of a process only and will not result, without more, in a finding against him on the substance of the complaint. What is more, the applicant has had the benefit of an appeal. These considerations mitigate the threat of injustice. In addition, although the parties have consented to the conflicted Judges’ sitting in the present matter, regard must still be had to the fact that they would ordinarily have to recuse themselves. For this reason, this Court should deny leave to appeal to preserve the fairness of its own processes.46 Where does this ruling leave Mr Justice Hlophe and the jsc? It appears, for now, that the Judge has exhausted his opportunities for legal challenge. The ball has therefore been placed squarely in the jsc’s court. An announcement by Hlophe JP’s attorney suggests that the jsc will (re-)re-consider his case over two weeks commencing the 30th September 2013. Given the trajectory of the proceedings thus far, it is impossible to predict what the outcome will be (or indeed whether there will be an outcome at all). But any disciplinary proceedings that take place will now commence before a Judicial Conduct Committee (jcc) established in terms of the the Judicial Services Commission Amendment Act, 20 of 2008.47 The jcc has an entirely judicial membership. The jcc consists of the Chief Justice and Deputy Chief Justice who sit ex officio and four judges (at least two of whom must be women) designated by the cj in consultation with the Minister of Justice. The role of the Judicial Conduct Committee is “to receive, consider and deal with complaints” against judges. The procedures for dealing with the less serious complaints of misconduct by judges need not detain us (they are dealt with by the cj and a committee member subject to appeal to the jcc). But the most serious allegations of misconduct involving potential removal from office may lead the jcc to recommend to the Commission the appointment of an investigative Tribunal. The three members of the tribunal are appointed by the Chief Justice. Two are judges and one is not but is selected by the cj from a list maintained by the jsc of suitable persons appointed to the list by the cj with the concurrence of the Minister of Justice. The Tribunal follows the procedure 46 47

Ibid [46]–[48]. This measure forms the remnant of a wider measure designed to subject the administration of the courts to the executive that was very controversial and is not for the moment to be enacted. See Corder, note 8 above, at p. 20. The Act amends the Judicial Service Commission Act, 9 of 1994. For a fuller account of this legislation see “The Failure of Institutions” 83–84.

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of a classic tribunal of inquiry with counsel to the tribunal and rules of procedure, etc. It reports to the Commission which will then make findings and decide what to do (presumably where gross misconduct is found the matter is referred to Parliament for a resolution praying for removal to be put (which as explained above would require a two-thirds majority)). But under the Constitution the decision to find “gross misconduct” remains that of the jsc, so it would still technically be open to the jsc in the face of a damming report of the Tribunal to refuse to find “gross misconduct.” V Conclusions At the time of writing it has been more than five years since the Constitutional Court lodged its complaint against Mr Justice Hlophe. Every day that the allegation is not properly investigated and dealt with, the more harm is done to the reputation of the South Africa judiciary. It is also concerning that the Constitutional Court has identified, but failed to resolve, a difficult issue of constitutional logic when it comes to entertaining appeals concerning complaints lodged against fellow judges. Whatever might be thought of Judge Hlophe’s alleged conduct and the points raised in the various cases brought by him and others, it is the JSC who must take the lion’s share of responsibility for this state of affairs. A disciplinary body must be properly equipped to deal with the cases that may come before it. Judge Hlophe has challenged the system and the system has not distinguished itself in dealing with the complaints against the judge. Disconcerting too is that while the sca emerges with some credit in this matter (in that its two judgments outlined above are impressive), some of the first instance decisions are much less impressive with the puine judges holding originally that there was a right to be heard before a complaint was made and that there were no grounds for judicial review of the jsc’s decision to take no further action. Even so, it should at least be noted that the Supreme Court of Appeal has subjected the jsc to judicial review and has required it to hold a proper investigation into the complaint made by the Constitutional Court judges. That investigation has not yet taken place and that will be the test of the jsc. But this tale of serious allegations, endless litigation and constitutional dilemmas suggests that the road ahead is unlikely to be smooth for the jsc. Who knows what direction the Hlophe saga will take next?

Chapter four

Reflections on Judicial Independence Past Achievements and Future Agenda Marcel Storme* I

Past Achievements

The Law Faculty at the University of Ghent, where we held the ninth conference of judicial independence, has been linked with international developments in Law & Society for a long time. In 1904, the Institut de Droit International received the Nobel Prize of Peace, since the President of this Institute drafted the rules of warfare. Since our group has been engaged in conferences and projects, we have made many achievements. And especially, we have been linked with international and comparative procedural law. This Faculty has been embedded in the Access to Justice movement, inspired by one of the most brilliant scholars in procedural law, Mauro Cappelletti, Doctor Honoris Causa of our Ghent Law Faculty. The first world Congress of International Association Procedural Law took place in 1977 in Ghent: Towards A Justice With A Human Face.1 And we organised again an international colloquium for the same association in 2000: the Discretionary Power of the Judge, where, inter alia Professor Shimon Shetreet was also a General Reporter.2 For this two-day conference, we have received the hospitality of the Law Faculty. I am proud of two specific aspects of this Ghent Conference. First, we

* Director, Institute of Procedural and European Law. He has graduated from Ghent University in 1952 and received Post Graduate degrees from University of Paris and London School of Economics. Barrister at the Gent Bar since 1952, Prof.em.Gent and Antwerp, Honorary President of the International Association Procedural Law, Former President of the Belgian Academy of sciences and arts, Former Member of the Belgian Parliament. He has published many books, including Burden of Proof, General Principles of Law, and numerous articles. 1 Marcel Storme & Helene Casman, Rijksuniversiteit te Gent Fakulteit der Rechten, Towards a Justice With a Human Face: The First International Congress on the Law of Civil Procedure (1977). 2 See Discretionary Power Of The Judge: Limits And Control (Marcel Storme & Burckhardt Hess eds., Kluwer 2003).

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will work in the law facility, which is located in a former Jesuit school. As a former boy of the Jesuit school in Ghent, I am of course very glad to welcome you in the premises of a former Jesuit school in Ghent. And second, we are welcomed here by the Dean of the Law Faculty, Professor Piet Taelman, a former student of mine, assistant of mine, colleague in my law firm. He became my successor in Procedural Law at this Law Faculty. And I was helped by Dr Stefaan Voet, who made his Ph.D. on Class Actions and was reporter in the Moscow conference. It is already more than 30 years ago that we drafted in Jerusalem our first report on Mount Scopus.3 We finished at 3 o’clock in the morning since it seemed rather difficult to get the agreement of our English colleagues. We could find a solution by adding after each principle: “except when for historical reasons…” and long democratic traditions.4 It was not necessary in our Mount Scopus Standards on judicial Indepen­ dence to write down these exceptions because of the reforms introduced in the United Kingdom by the Constitutional Reform Act 2005.5 So you can imagine how happy we are here in Ghent to be able to organise a conference of the Shetreet-commission and to say to Shimon how much we appreciate his never-ending Endeavour – first name of Inspector Morse6 – in favour of the minimum standards of Independence and Impartiality of the Judiciary. Here in Ghent, we set on the task of examining especially the issue of the impartiality. II

Judicial Independence and Impartiality

One hundred years ago, Roscoe Pound delivered a speech with the title: “the popular dissatisfaction about the functioning of Justice.”7 As in former conferences, we started in confusion and we ended in confusion, but on a much higher level. 3 See Appendix II, Part IX, New Delhi Code of Minimum Standards of Judicial Independence (1982). 4 See id. 5 For a detailed analysis of reforms, see Shimon Shetreet & Sophie Turenne, Judges on Trial: The Independence and Accountability of the English Judiciary (2nd ed. 2013). 6 Endeavour Morse (Masterpiece 2011) (http://www.pbs.org/wgbh/masterpiece/endeavour/ index.html, http://www.pbs.org/wgbh/masterpiece/endeavour/interviews.html). 7 Roscoe Pound, Causes of Popular Dissatisfaction with the Administration of Justice, 29 A.B.A. Rep. 395 (1906).

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We had for the 9th time again a beautiful conference, which will add an extremely important chapter to the final draft of our international standards of Independence and Impartiality of Judiciary. Let us not forget that in the well-known image of the blind-folded Lady Justice the stress is put on impartiality: she may not see the faces of the parties since she has to judge in an impartial way. Impartial means away from the parties: un party! May I also remind you of the famous reaction of Thomas Becket when he was appointed as a Lord Chancellor: “Sir, till today I was your friend but from now I am your Lord Chancellor.” When I was in Argentina as an expert of the World Bank about la Reforma de la Justicia in 1994, I had the opportunity to meet the President of the Supreme Court, who was known as a very good and close friend of the President of the Argentinian State, Carlos Menem. When I told the President my story about the Becket-complex, he was furious and reacted in this way: Mr Storme, I was a close friend of President Menem and I’m still a close friend of President Menem… I do not wish to summarize nor conclude but raise some aspects of our meeting in the Ghent Conference. At the same time I wish to present a number of proposals for the future and some new aspects in our project and suggestions for future research. Since our conference in Vienna, we are examining also Independence and Impartiality in international courts. We had the opportunity to hear the youngest judge of the European Court of Human Rights in Strasbourg, the Belgian Judge Paul Lemmens, a former student of mine. We had also the opportunity to hear the presentation of the President of the Belgian Constitutional Court,8 also a former student of mine, who gave us an insight into that Court and who analyzed the constitutionalizing of procedural laws. I must confess that I was struck by the argument that we cannot challenge certain procedural constitutionalized arrangements, even if it would lead to a non-functioning of the Court. It was interesting to consider a specific aspect of Independence, namely Independence within the Judiciary; that is, the internal independence of the judge.9 8 See Marc Bossuyt, The Independence of the Judiciary in Belgium, in Culture of Judicial Independence: Rule of Law and World Peace (Shimon Shetreet ed., 2014) (Chapter 9 of this volume). 9 See Appendix I, The Mt. Scopus International Standards of Judicial Independence (2013).

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Indeed the so called corporatism between judges could lead to communication between judges about pending cases, as, for instance, has been in the case of the Belgian judge in the Fortis-gate affair.10 At the same time, it was equally surprising that in Austria a judge could challenge another judge who is sitting in the same panel. Accountability of judges is of course an old issue: quis custodiet et ipsos custodes,11 a very difficult problem on which Max Rheinstein and Mauro Cappelletti wrote brilliant articles.12 In Belgium, the Court de Cassation decided in 1991 that the Belgian State is liable when a judge ruled in a wrong way and when the damage could not be compensated in another way. Sir Louis Blom Cooper gave us a very original approach of fairness and analysis of the fair trial requirements in art. 6 of the European Convention.13 But we should examine the impact of fairness since this was described by Lord Nicholls as an elusive concept.14 We added also two new standards to our Mt. Scopus International Standards of Judicial Independence, namely Building Culture of judicial independence and the guidelines regarding Public Inquiries by Judges.15 Professor Shetreet gave a presentation of the new trend in common law jurisdictions of the shift from non-written traditions of judicial conduct to written codes of judicial ethics. This was done in Australia, Canada, United Kingdom and in Israel.16 Following this trend, I think we should embark upon a project to draft a global written Code of Ethical Conduct for judges. Following our 9th Conference on judicial independence, we must state with satisfaction that it was again, thanks to a lot of outstanding presentations, a very fruitful conference and a very open club of friends in search of the basic principles of Independence and Impartiality. At a certain moment it became like the world of legal practitioners, a kind of a human zoo. 10 11 12 13

For the case see Bossuyt, supra note 8. Translation: “who shall keep over the guardians.” Mauro Cappelletti, Who Watches the Watchmen?, 31Am. J. of Comp. L. 1 (Winter 1983). See Louis Blom-Cooper, On Fairness, in Culture of Judicial Independence: Rule of Law and World Peace (Shimon Shetreet ed., 2014) (Chapter 10 of this volume) [hereinafter Blom-Cooper]. 14 Id. 15 See Appendix I Part IX, this Volume, Article 1.4 and Article 9A. 16 See Shimon Shetreet, Comparative Perspectives on the Status of Codes of Judicial Ethics, in Culture of Judicial Independence: Rule of Law and World Peace (Shimon Shetreet ed., 2014) (Chapter 20 of this volume).

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Sir Louis Blom Cooper compared, indeed, the concept of fairness, being identifiable with an elephant!17 And Neil Andrews tried to explain to us the distinction between solicitors and barristers. I must tell you that I have known for a long time the exact distinction: the distinction between barristers and solicitors is like the distinction between crocodiles and alligators! Neil Andrews stressed the fact that the public interest of Justice has to remain the central idea of our research. The President of the Belgian Constitutional Court reminded us that the quest for justice is the only duty of the Judiciary. After the publication of the six volumes of Access to Justice,18 the best comparative study ever in the field of procedural law, Mauro Cappelletti invited us in 1978 for a colloquium in Florence. We had a marvelous closing lecture by the French Professor André Tunc: “Our quest for Justice.” Since Antigone, we are indeed in quest of Justice. May I tell you that here in Ghent a panel of the Mystic Lamb, the Just Judges, was stolen in 1935, and in 75 years we could not find this panel. We are still in a quest for just judges in Ghent. III

Agenda for the Future

We must warn against the pressure by the media but also by the public. There is in Dakota a proposal to sanction judges for judgments which are criticised by the public opinion! This is a topic for our next conferences. We must also warn against IT-Justice. There was a famous French-Jewish philosopher, Emmanuel Levinas, who wrote a book on “La philosophie du visage.” Our human face is the least-protected part of our body. The human faces of others invite us to help and to listen to each other. This is the main reason to maintain our face-to-face justice. We must note the importance of the field of online dispute resolution and put this topic on our agenda for the future. We should analyze the emerging and increasing recourse to the online justice practices and procedures whereby consumers are compelled to work out disputes and arguments against major companies online or in digital 17

18

See Louis Blom-Cooper, On Fairness, in Culture of Judicial Independence: Rule of Law and World Peace (Shimon Shetreet ed., 2014) (Chapter 10 of this volume) [hereinafter Blom-Cooper]. Mauro Cappelletti, Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies (1976).

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procedures. The digital procedures of handling consumer complaints are conducted by phone centers and call centers, which sometimes are not even in the jurisdiction where the dispute arose, but are conducted by out-of-jurisdiction ­outsourcing call centers. In 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, from distribution of the marital estate to co-parenting plans and other important issues. We must consider proper guidelines that will apply to online justice. IV Conclusion I wish to address our General Coordinator, Professor Shimon Shetreet. As I said at the opening session of the conference in Ghent in 2012, your first name is Endeavour. I wish to thank you on behalf of the legal community from all over the world for the immense efforts you have made for more than 35 years to draft a global code of general principles concerning Impartiality and Independence of the Judiciary. You did it with inspiration, ingegno and conviviality. I wish that this effort could be rewarded by a Nobel Peace Prize to our Association, the International Association of Judicial Independence (The jiwp Association), remembering that a former Nobel Peace Prize was given to the Institut de Droit International of the Ghent University, exactly 100  years ago in 1904.

PART two Judicial Independence, Human Rights, Democracy, the Rule of Law and World Peace

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Chapter FIVE

Judging the Independence and Integrity of Foreign Courts Neil Andrews* I Introduction The English courts have recently had to deal with two difficult and related issues. Both involve evaluation by English courts, applying fundamental norms, namely, judicial independence and the principle of adjudicative finality, of a foreign court’s exercise of jurisdiction. Those fundamental norms1 are facets of ‘the rule of law’. Indeed in the second English decision,2 the concept of ‘the rule of law’ was explicitly invoked in the context of finality.3 As suggested in the title to this piece, it might be helpful to regard judicial independence and related fundamental aspects of sound adjudication as matters concerning the ‘integrity’4 of courts. * Professor of Civil Justice and Private Law, Faculty of Law, University of Cambridge; Fellow of Clare College, Cambridge; Bencher of Middle Temple, 2007; Member of the American Law Institute; Vice-President, International Association of Procedural Law. 1 For general discussion of judicial independence in English law, N. Andrews, Civil Processes (Intersentia, Cambridge, 2013), vol. 1 (Court Proceedings), ch. 26; and on fundamental principles generally in English civil proceedings, ibid., ch.’s 25 to 29 (ch. 25, ‘The Five Constellations of Procedural Principle’; ch. 26, ‘Judicial Independence and Impartiality’; ch. 27, ‘Due Notice’; ch. 28, ‘Publicity and Open Justice’; ch. 29, ‘The Duty to Give Reasoned Decisions’. And for comparison with arbitration, N. Andrews, Civil Processes (Intersentia, Cambridge, 2013), vol. 2 (Mediation and Arbitration), ch. 5, ‘The Major Principles of Arbitration and Litigation: A Comparison’. 2 Merchant International Co. Ltd v. Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy [2012] EWCA Civ 196, [2012] 1 W.L.R. 3036; [2012] 2 All E.R. (Comm) 1; [2012] C.P. Rep. 25; [2012] 1C.L.C. 396; M. Ahmed, ‘Setting aside judgment in default, Article 6 of the European Convention on Human Rights and the Principle of Res Judicata’ (2012) C.J.Q. 417. 3 Lord Bingham’s brilliant study of the ‘rule of law’ concept, T. Bingham, The Rule of Law (London, 2010), prescribes a list of fundamental legal principles or precepts; but his list is not exhaustive; the tentacles of ‘the rule of law’ can extend to ‘cross-border’ matters. 4 ‘Integrity’ is multi-faceted: see n. 27 below.

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The first case, Yukos Capital Sarl v. ojsc Rosneft Oil Co. (2012),5 concerns judicial independence. More precisely, that case concerns the status of a foreign decision (decision Y) declaring that another foreign state’s court (in decision X) had acted without judicial independence. Should the court responsible for decision Y, and which has declared that judicial independence was lacking (or made the converse declaration, that judicial independence was satisfied) have both the first and the last say on that matter, in accordance with the doctrine of issue estoppel (a branch of res judicata),6 or is the next foreign jurisdiction in which the same issue arises (in decision Z) entitled to take a fresh view on this matter? The answer given by the English Court of Appeal in the Yukos case7 (in decision Z) is that issue preclusion does not apply in this context. The English Court of Appeal adopted the view that public policy relating to the criterion for judicial impendence in the respective jurisdictions (the courts where decisions Y and Z are given) might differ. That is a possibility. But the better explanation is that, even if there were no such variation, factual determinations on such a matter should be open to each foreign jurisdiction: it is inappropriate that the doctrine of ‘issue estoppel’ should even potentially preclude re-examination of this matter. The second decision of the English Court of Appeal, Merchant International Co. Ltd v. Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy (2012),8 concerns the finality of a foreign civil judgment, more precisely, this issue: is an English court bound to set aside a default judgment (decision B, granted in recognition of a final foreign judgment, decision A, when decision A has already survived intact following appellate scrutiny in that foreign jurisdiction) if decision A is subsequently reversed within that foreign legal system by 5 [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549 (no further appeal to the Supreme Court of the United Kingdom has occurred); S. Harder, ‘The Effects of Recognised Foreign Judgments in Civil and Commercial Matters’ (2013) 62 I.C.L.Q. 441, 456 ff.; A. Mills, ‘From Russia with Prejudice? The Act of State Doctrine and the Effect of Foreign Proceedings Setting Aside an Arbitral Award’ (2012) 71C.L.J. 465. 6 On this doctrine in English law, N. Andrews, Civil Processes (Intersentia, Cambridge, 2013), vol. 1 (Court Proceedings), ch. 16; and on issue preclusion based on foreign judgments, P.R. Barnett, Res Judicata, Estoppel, and Foreign Judgments (Oxford University Press, 2001), ch. 5. 7 [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549. 8 [2012] EWCA Civ 196, [2012] 1 W.L.R. 3036; [2012] 2 All E.R. (Comm) 1; [2012] C.P. Rep. 25; [2012] 1C.L.C. 396; noted M. Ahmed, ‘Setting aside judgment in default, Article 6 of the European Convention on Human Rights and the Principle of Res Judicata’ (2012) C.J.Q. 417 (the Supreme Court of the United Kingdom has refused permission for a further appeal).

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decision C, but by reference to evidence available at the time of foreign decision A? Here the English court declared decision C to be a violation of ‘the rule of law’. The result was that the English court elected not to disturb the English decision, judgment B, which had been entered in recognition of the then valid foreign judgment A, even though judgment A has ceased to have validity within the relevant foreign jurisdiction. In essence, therefore, the English court, in decision D, employing a transnational criterion of finality (so-called ‘legal certainty’), chose not to give recognition to decision C. II

Should the English Courts Simply Follow a Foreign Court’s Declaration that another Foreign State’s Court Lacked Judicial Independence?

Hamblen J.’s decision in Yukos Capital Sarl v. ojsc Rosneft Oil Co. (2011)9 was reversed by the Court of Appeal in the Yukos case (2012).10 Hamblen J. had held that the English Commercial Court, in accordance with the principle of issue estoppel, should acknowledge that an arbitration award-debtor was bound by a Dutch court’s decision. The Dutch court had held that a Russian court lacked independence when it had decided to annul four Russian arbitration awards. The Dutch court, as noted by Hamblen J., had found that the Russian courts in this respect were controlled by the Russian State and that there was evidence that there had been a pattern of non-independent decision-making by Russian courts.11 The Dutch court had proceeded to enforce the Russian arbitral awards. The principal sum (c. U.S. $425 million) had been paid. The present English proceedings were brought to seek recovery of interest (c. U.S. $160 million). This constituted additional compensation attributable to the dilatory payment of the award. Hamblen J.’s decision, on a preliminary point, was effective to open the path to such supplementary enforcement. First it was necessary for the Court of Appeal to confirm that the doctrine of ‘act of state’ does not apply to a foreign court’s decision, and so the path was clear for an English court to examine the propriety of the process by which the relevant foreign court (here the Russian court) had reached the relevant and 9

10 11

[2011] EWHC 1461 (Comm), [2012] 1 All E.R. (Comm) 479; [2011] 2 Lloyd’s Rep. 443; [2011] 2C.L.C. 129 (criticised J. Van de Velden, ‘The “cautious lex fori” approach to foreign judgments and preclusion: Yukos Capital Sarl v. OJSC Rosneft Oil Co’ (2012) 61 I.C.L.Q. 519). [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549. [2011] EWHC 1461 (Comm), [2012] 1 All E.R. (Comm) 479, at [35].

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problematic decision.12 On this point the Court of Appeal agreed with Hamblen J. at first instance. However, on a second point, and here reversing Hamblen J.’s first instance decision, the English Court of Appeal held that issue estoppel did not apply here.13 Instead it held that the question whether the Russian court’s decision had been vitiated by extraneous pressure, and the issue whether that court lacked impartiality and independence, were matters which had been resolved by the Amsterdam Court of Appeal applying the Dutch test of public policy. This meant that the issue before the English court was not the same. In England, this issue required the English court to apply independently and afresh English public policy on this point. It is submitted that the English Court of Appeal’s decision is attractive. It would be surprising and unacceptable if the English courts were in effect to abdicate responsibility for testing whether foreign courts lack independence by instead deferring, under the rubric of issue estoppel, to a third country’s prior determination of this point. The following passage from the English Court of Appeal’s judgment contains Rix L.J.’s encapsulation (the sole judgment in this appeal) of the need for a fresh and independent English assessment of the Russian decision, rather than for the English court to rubber-stamp under the aegis of issue estoppel the Dutch court’s condemnation of the Russian decision:14 ‘…it makes a great deal of difference whether the issue is being determined by reference to Dutch public order or English public order which is (or may well be) different’. Of course, the reality is that English public policy is unlikely to be more or less tolerant than Dutch public policy in the matter of corruption and bribery 12

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[2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549, at [62], [73], [77], [86], [87], [90], [124], [127], [134]; notably at [62], citing Lord Collins in AK Investment CJSC v. Kyrgyz Mobil Tel Ltd [2011] UKPC 7, [2011] 1C.L.C. 205, at [101]: ‘there is no rule that the English court…will not examine the question whether the foreign court or the foreign court system is corrupt or lacking in independence. The rule is that considerations of international comity will militate against any such finding in the absence of cogent evidence’. Art. 1(2)(d) of the EU Jurisdiction Regulation (Council Regulation 44/2001 of 22 December 2001 on ‘jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’) provides that the Regulation does not apply to decisions concerning arbitration (the latter topic falling outside the Jurisdiction Regulation’s ambit); the same restriction will apply under the Jurisdiction Regulation (2012) (the relevant parts of which take effect on 10 January 2015). [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549, at [156] and [157].

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or improper outside interference with the judicial process. The true issue is more likely to be whether the Dutch courts made sound findings of fact when applying that branch of public policy. The English decision attractively creates a fresh opportunity for the evidence relevant to this allegation to be considered by the English court. Issue estoppel does not preclude that determination. A highly sensitive and inevitably contentious factual dispute is left open for the English court to decide for itself. Its hands are not tied by a foreign court’s condemnation of another foreign court’s conduct. As Rix L.J. attractively concluded:15 ‘It must ultimately be for the English court to decide whether the recognition of a foreign judgment should be withheld on the grounds that that foreign judgment is a partial and dependent judgment in favour of the state where it was pronounced. That is a question so central to the respect and comity normally due from one court to another that to accept the decision of a court of a third country on the matter would be an abdication of responsibility on the part of the English court. On matters of this kind, we should accept our own responsibilities just as we would expect courts of other countries to accept theirs.’ The English Court of Appeal’s decision also avoids the absurdity of giving effect to issue estoppel in respect of one foreign decision (annulling a Russian decision) but denying any estoppel effect to a later foreign decision in which the opposite conclusion had been drawn.16 III

A Foreign Court Improperly Invalidates a Foreign Judgment already Recognised by the English Court

In Merchant International Co. Ltd v. Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy (2012),17 the English Court of Appeal (in decision D) refused 15 16

17

Ibid., at [159]. Ibid., at [154]: ‘[suppose] not merely that the Dutch courts have determined that the annulment decisions are partial and dependent (as they have) but that the courts of another state have determined that the decisions are in fact impartial and independent. By which judgment are the parties in England to be regarded as issue estopped? The answer can hardly be the judgment which happens to be the first in time but must be that the English court will make up its own mind according to its own concept of public order not that of some other state’. [2012] EWCA Civ 196, [2012] 1 W.L.R. 3036; [2012] 2 All E.R. (Comm) 1; [2012] C.P. Rep. 25; [2012] 1C.L.C. 396; noted M. Ahmed, ‘Setting aside judgment in default, Article 6 of the

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to set aside an English default judgment (decision B) obtained in recognition of a foreign judgment (a Ukrainian judgment, decision A), even though, subsequent to the English default judgment, the foreign judgment had been set aside in the Ukraine, in decision C (in fact there were successive decisions, referred to here as C1 and C2, C1 annulling decision A, and decision C2 also repudiating decision A and declaring that no valid debt arose on these facts; but C1 and C2 were based on different grounds). The rescission of the Ukrainian judgment in the Ukraine in decision C1 involved fundamental re-opening of that judgment in a manner contrary to the principles of ‘the rule of law, finality, and legal certainty’. This was illegitimate because evidence to support the ground of subsequent attack (in decisions C1 and C2) had been available in the first Ukrainian proceedings (decision A). In the Merchant International case (2012), the assignee of a contractual debt owed by a energy company registered in Ukraine (in fact a wholly owned State company) had successfully sued and obtained judgment from the Ukraine court in Kiev in April 2006 (decision A). The assignee, the Merchant company, is incorporated under Delaware law in the United States of America. In June 2006, the Supreme Court of Ukraine upheld this order, varying the amount to $U.S. 24,719,564. But a Ukrainian statute had been enacted in 2005 which prevented enforcement of judgments against energy companies. And so the judgment creditor commenced London proceedings in April 2010 to enforce this foreign judgment. The judgment debtor failed to enter a defence, and so judgment by default was obtained in London on 28 February 2011 (decision B). In April 2011, the judgment debtor persuaded the Supreme Court of the Ukraine (decision C!) to rescind the Ukrainian 2006 judgment (decision A). This rescission was based on the suggested fact that the assignee, Merchant, had not at the date of assignment enjoyed full corporate capacity under Delaware law. The documentary evidence adduced for this purpose was a record of the companies register in Delaware. This information had been available at all stages of the long proceedings in this litigation. In November 2011, the Kiev commercial court gave a fresh judgment in the same matter between the parties, which was in favour of the judgment debtor, declaring it was not liable to Merchant (decision C2). However, the basis of this decision was not lack of corporate capacity (and so the Delaware record was in fact a spurious defence). Instead, the Kiev commercial court fastened onto the absence of a signature by the assignor in a portion of the relevant purported European Convention on Human Rights and the Principle of Res Judicata’ (2012) C.J.Q. 417.

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assignment documentation. This November 2011 decision must be taken to have applied accurately Russian law concerning the invalidity of the purported assignment. However, it appears that the opportunity for decision C2 arose only because the Ukrainian Supreme Court (in decision C1) had earlier rescinded the 2006 judgment by reference to material available in 2006. The English Court of Appeal rejected the argument that, simply because the Ukraine judgment had been rescinded and repudiated in the Ukraine (in, respectively, decisions C1 and C2), the English default judgment should be set aside without further ado. Instead, the English Court of Appeal held that the correct approach should be to uphold the default judgment. This is because the Ukrainian judgment had been rescinded and repudiated (in decisions C1 and C2) in a way which offended the principle of legality. It was contrary to that principle and thus unacceptable that the debt judgment, decision A, had been re-opened by consideration of material available to the judgment debtor in 2006. The English Court of Appeal accepted the submission made by the judgment creditor that it would be contrary both to English public policy and to the Strasbourg jurisprudence concerning Article 6 of the European Convention on Human Rights for the final foreign judgment to be reopened ‘on the basis of points which he advanced or could reasonably have advanced in the original litigation,’ and this restriction rests on ‘a fundamental aspect of the rule of law’.18 The English Court of Appeal noted (a) that the Strasbourg case law establishes that a final decision, once the ordinary system of appeals has been exhausted, cannot be re-opened within that foreign jurisdiction on factual grounds unless ‘there is [available to the reviewing court] evidence not previously available through the exercise of due diligence that would lead to a different outcome of the proceedings’;19 and (b) that there would be a ‘flagrant’ breach of this principle of legal certainty for the foreign jurisdiction to permit a de novo review by reference to evidence available at the time of the earlier decision in order to protect the interests of a party associated with the foreign 18 19

Ibid., at [58]. Ibid., at [59], quoting passages from the European Court of Human Rights, in Pravednaya v. Russia (Application No. 69529/01) 18 November 2004, at [24] to [27]; at [27] in the Pravednaya case, the E.Ct.H.R. said: ‘The procedure for quashing of a final judgment presupposes that there is evidence not previously available through the exercise of due diligence that would lead to a different outcome of the proceedings. The person applying for rescission should show that there was no opportunity to present the item of evidence at the final hearing and that the evidence is decisive’. A more recent application of this principle is Agurdino Srl v. Moldova (7359/06) [2012] S.T.C. 1; [2011] S.T.I. 3266, E.Ct.H.R.

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State itself.20 In conclusion, the English Court of Appeal criticised as irregular the process whereby the first Ukrainian judgment (already upheld on appeal within that jurisdiction) was rescinded and then repudiated or reversed by successive Ukrainian decisions (in decisions C1 and C2). That process was incompatible with both English public policy and the Strasbourg conception of ‘the rule of law’ in this context.21 Furthermore, Toulson L.J. in the English Court of Appeal referred to such a judgment (that is, the English default judgment, and no doubt the earlier Ukrainian money judgment) as an ‘asset’ on which third parties might have relied.22 The decision in the Merchant International case establishes, therefore, that (i) the English courts should not set aside a default judgment entered in England in recognition of a foreign civil judgment, where that decision is final, even though there has been a subsequent rescission of the relevant foreign judgment, provided (ii) that this rescission involved an illegitimate reference to evidence available at the time of the earlier final decision;23 and a fortiori the default judgment will stand if (iii) there is a clear inference that the judgment debtor who has obtained this rescission is an emanation of the relevant foreign State. This decision involved relations between two Convention States, both party to the European Convention on Human Rights, namely the United Kingdom and the Ukraine. If, for example, the foreign state were the United States of America or Brazil, Article 6 and the Strasbourg jurisprudence would only apply ‘indirectly’ (as mentioned at notes 35 to 37 below, a watered down and ‘indirect’ application of Article 6 demands that the enforcing court should not recognise or enforce foreign judgments which are vitiated by a ‘flagrant’ defect in that foreign court’s procedure or conduct of the case). But the decision in the Merchant International case (2012) appears to rest equally on considerations of English public policy, which apply concurrently with the requirements of the European Convention. Nor does it appear that there had been any concrete steps already taken in England to obtain enforcement of the English default judgment. 20 21 22 23

[2012] EWCA Civ 196; [2012] 1  W.L.R. 3036, at [60]: citing Agrokompleks v. Ukraine (Application No. 23465/03) (unreported) given 6 October 2011, E.Ct.H.R., at [151]. [2012] EWCA Civ 196; [2012] 1 W.L.R. 3036, at [72] and [73]. Ibid., at [78]. See also Floyd J. in Joint Stock Co. Aeroflot - Russian Airlines v. Berezovsky [2012] EWHC 3017 (Ch), at [79], citing Merchant International Co. Ltd. v. Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy [2012] EWCA Civ 196, [2012] 1 W.L.R. 3036. An appeal is outstanding in the Aeroflot case.

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Nor does it appear to have been regarded as crucial that the Ukrainian Supreme Court’s decision (decision C1) to rescind the original Ukrainian judgment had been based on a reason (the allegation that the assignee company had lacked corporate capacity) which the still later Kiev Commercial Court (in decision C2) had not accepted (in decision C2 a different basis had been adopted for reaching a conclusion that the earlier Ukrainian debt judgment was incorrect). It was sufficient that decision C1 involved adduction of evidence or argument which was available at the time judgment A was delivered in the Ukraine. The English Court of Appeal’s decision does not address the situation where the final foreign judgment has already been rescinded, although by an illegitimate foreign process, before the English court is asked to give judgment recognising the earlier judgment. In that situation it would be a strong application of the rule of law concept to accord finality and hence priority to the first foreign judgment even though it has already been declared invalid in the relevant foreign jurisdiction by an illegitimately broad re-opening of the original decision. It is significant and arguably crucial that the Court of Appeal regarded a default judgment as an ‘asset’ for the purpose of the European Convention on Human Rights.24 But in the anterior situation where no default judgment has been obtained in England, and instead an application to obtain such a default 24

[2012] EWCA Civ 196; [2012] 1 W.L.R. 3036, at [78], per Toulson L.J.: ‘An English judgment is a form of property which may have real value. The proprietary nature of a judgment was recognised by the Strasbourg court in the Agrokompleks case (Application No. 23465/03) 6 October 2011. To set aside a judgment properly obtained is to deprive the judgment creditor of an asset. It may be just to do so, but it may not be. Third parties may also be affected. A third party may advance money on the security of it. It is not difficult to envisage circumstances where there could be real injustice to a judgment creditor or a third party by depriving them of the fruits of a judgment properly entered’. See also Toulson L.J. at [60] and [61], noting the argument that ‘a debt established by the original judgment came within the beneficiary’s “possessions” within the meaning of Article 1 of the First Protocol’ and that ‘the quashing of the judgment therefore amounted to an interference with the right to peaceful enjoyment of possessions and constituted a violation of Article 1 of the First Protocol, by preventing the originally successful party from relying on a binding judicial decision and depriving it of the opportunity to receive the money for which judgment had been given in its favour’; and adding at [61], adopting counsel’s argument, ‘[the rescission of the debt judgment in the Ukraine] involved a breach of Article 6 of the Convention and Article 1 of the First Protocol, since the previous Ukrainian judgment in favour of MIC was a possession protected by the Protocol. The English judgment was also a possession protected by the Protocol. For all of those reasons it was right for the English court to recognise the continued existence of the debt’.

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judgment is being considered, it would be legitimate (and arguably decisive) for the English court to acknowledge that the Ukrainian debt judgment has already been rescinded in the Ukraine, even though the process of rescission offended the principle of legality because that Ukrainian review involved admission of evidence which was available at the time of the original debt judgment. IV

Concluding Assessment

The central issue in both the cases discussed in this piece is the same, although the precise legal contexts of the litigation are different. In both English cases, the status of a foreign decision fell to be determined by reference to a fundamental principle which went to the root of the foreign court’s integrity. The difference between the two contexts was that in the Yukos case the matter had already been examined by another foreign court, the Dutch court in Amsterdam, whereas in the Merchant International case the primary foreign judgment had been examined and rescinded internally by the courts of the relevant foreign jurisdiction, and it was the ‘transnational’ validity of the decision to rescind which fell to be assessed in England. Yukos Capital Sarl v. ojsc Rosneft Oil Co. (2012)25 concerned a Russian court decision purporting to rescind arbitral awards made against Russian parties. The objection to this raised in England was the allegation that the Russian court lacked judicial independence, and the precise issue was whether a Dutch court’s decision to uphold that allegation should preclude further inquiry in the English courts. In that sense, the issue was triangular. However, the criterion employed to determine whether the Russian court lacked judicial independence would be the English concept of public policy. Merchant International Co. Ltd v. Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy (2012)26 concerned two Ukrainian court decisions which purported to rescind or repudiate a Ukrainian judgment made against a Ukrainian State entity. Here there had been no other foreign court decision and in that sense the issue was bilateral. The criterion used to determine whether the rescission/repudiatory judgments should be respected was primarily the international standard of finality, expressed as a facet of ‘the rule of law’, 25 26

[2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549. [2012] EWCA Civ 196; [2012] 1 W.L.R. 3036; noted M. Ahmed, ‘Setting aside judgment in default, Article 6 of the European Convention on Human Rights and the Principle of Res Judicata’ (2012) C.J.Q. 417.

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as expounded by the Strasbourg jurisprudence concerning Article 6 of the European Convention on Human Rights (to which both the Ukraine and the United Kingdom are parties). However, a second source of the same criterion is the English concept of public policy. A

Three Lessons Flow from these Cases

Firstly, these English decisions demonstrate that transnational recognition and enforcement of foreign judgments require reference to fundamental standards of judicial integrity,27 such as judicial independence and respect for the finality of civil judgments (provided, of course, the relevant decision is indeed technically a ‘final’ decision). It is appropriate, indeed necessary, that foreign judgments should be open to this type of scrutiny. Similar issues arise when determining whether to allow service out of the jurisdiction on the basis of forum non conveniens considerations,28 or to order 27

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Here there is a constellation or bundle of procedural requirements; thus Dicey, Morris and Collins, The Conflict of Laws (15th edn., London, 2012), commenting on the Common Law rule that a foreign final judgment is to be accorded recognition or enforced (basic rule 48) notes (at rules 49 ff.) four exceptions; these exceptions are based on (i) the foreign court’s lack of jurisdiction (ii) that the judgment was obtained by the judgment-holder’s fraud or by the court’s fraud; (iii) or recognition/enforcement would be contrary to (English) public policy, including consideration of Article 6 of the European Convention on Human Rights; (iv) the judgment was obtained contrary to natural justice (a ground which also overlaps with Article 6 of the Convention). And in Joint Stock Co. Aeroflot - Russian Airlines v. Berezovsky [2012] EWHC 3017 (Ch), Floyd J. provided this summary, at [52]: ‘The English court will not enforce a judgment if to do so would be contrary to public policy (Dicey’s Rule 44) or contrary to the European Convention on Human Rights (see Dicey at paragraph 14–149), or if the judgment was obtained in proceedings which were contrary to natural justice (Dicey’s Rule 45)’. As for (iv), Floyd J, ibid., at [55], noted: ‘The scope of the exception based on natural justice is now recognised to be wider than that afforded by lack of notice and opportunity to be heard. In Adams v. Cape Industries [1990] 1 Ch.433 the Court of Appeal held that there was a breach of the principles of natural justice where a foreign court, in breach of its own procedural rules, had given default judgment without judicial assessment on an unliquidated claim. The breach of the principles of natural justice is not, however, to be found in a mere procedural defect in the proceedings of the foreign court, but in the fact that, viewed against the background of the foreign procedural law, a defendant could have a reasonable expectation that the court would obey its own rules: see [1990] 1 Ch.433, 567 F to 568’. As noted at [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549, by Rix L.J.: ‘In Cherney the issue was whether service out of the jurisdiction should be permitted to serve the defendant in Russia. It was held that although Russia was the natural forum for the litigation, there was a risk that substantial

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security for costs29 because of the risk that a foreign court will not uphold an English court’s costs order.30 In all these contexts the English court might need to assess the suggestion that a particular foreign court lacked judicial independence or that the entire foreign court process is systemically ‘partial or dependent’. Secondly, those standards of judicial integrity, such as judicial independence and respect for the finality of civil judgments, might or might not be underpinned by an international declaration or Convention. In the Yukos case (2012),31 the English Court of Appeal did not draw on any international conception of judicial independence (although at first instance,32 Article 6 of the European Convention had formed one of the bases for challenging the Russian judgment—Russia is a party to this Convention). Indeed the Court of Appeal’s reasoning presupposed that there might be national variations in the definition of the requirement of judicial independence. By contrast, in the Merchant International case (2012),33 the English Court of Appeal was able to invoke Strasbourg jurisprudence concerning finality, based on Article 6 of the European Convention on Human Rights, to which both the Ukraine and the United Kingdom are parties. But it is also possible that the Mount Scopus standards of judicial independence34 might provide a globally justice would or could not be done in the natural forum so that justice required the case to be tried in England. In coming to that conclusion, the judge considered expert evidence concerning the corruption and partiality of the Russian courts and of the interference of the executive in judicial proceedings where the state’s strategic interests were in play, and also evidence about other cases, such as the dispute between Yukos and Rosneft itself. The decision was upheld on appeal: Cherney v. Deripaska (No. 2) [2009] EWCA Civ 849, [2009] 2C.L.C. 408’. 29 On security for costs in English law, N. Andrews, Civil Processes (Intersentia, Cambridge, 2013), vol. 1 (Court Proceedings), ch. 19. 30 As noted, in the Yukos case, [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549, at [62], by Rix L.J.: ‘in Al-Koronky v. Time-Life Entertainment Group Ltd [2006] EWCA Civ 1123, [2007] 1 Costs L.R. 57…this court said that it was entitled to take into account evidence about the lack of independence of the judiciary in the Sudan for the purposes of requiring security for costs in English proceedings’. 31 [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549. 32 [2011] EWHC 1461 (Comm), [2012] 1 All E.R. (Comm) 479; [2011] 2 Lloyd’s Rep. 443; [2011] 2C.L.C. 129, as noted by Hamblen J. at [104] sub-para (8). 33 [2012] EWCA Civ 196, [2012] 1 W.L.R. 3036; M. Ahmed, ‘Setting aside judgment in default, Article 6 of the European Convention on Human Rights and the Principle of Res Judicata’ (2012) C.J.Q. 417. 34 http://www.jiwp.org/mt-scopus-standards-2007-2012/c17lh.

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acceptable set of criteria concerning judicial independence. It should be noted that where the challenged judgment emanates from a non-Convention State, but the enforcing court is within a Convention State, the latter court will independently violate Article 6 if it enforces a judgment which contains ‘flagrant’ shortcomings;35 (ii) however, Article 6 of the European Convention unqualifiedly applies (without the need for proof of ‘flagrant’ violation) where the foreign judgment emanates from a Convention State36 (although on this last point Lord Neuberger M.R. in the Merchant International case (2012) adopted a cautious analysis, characterising the breach of Article 6 by the Ukrainian courts as ‘flagrant’).37 35

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Government of USA v. Montgomery (No. 2) [2004] UKHL 37, [2004] 1 W.L.R. 2241, at [27] and [28] (considering the ambit of Pellegrini v. Italy [2002] E.H.R.R. 44), and as noted by Dicey, Morris and Collins, The Conflict of Laws (15th edn., 2012), 14–160; for brief affirmation of the Pellegrini case, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland (45036/98) (2006) 42 E.H.R.R. 1; 19 B.H.R.C. 299, E.Ct.H.R., at [157]). Floyd J. in Joint Stock Co. Aeroflot - Russian Airlines v. Berezovsky [2012] EWHC 3017 (Ch), at [53]: ‘As the European Convention on Human Rights has the force of law in this country, the court naturally has to consider whether the recognition and enforcement of the judgment would be contrary to the European Convention on Human Rights and refuse enforcement if it is: see Pellegrini v. Italy [2002] E.H.R.R. 44 cited in paragraph [14–160] of [Dicey, Morris and Collins, The Conflict of Laws (15th edn., 2012)] . As pointed out in Dicey, and by David Steel J. in Merchant International Co. Ltd v. Natsionalna Aktsionerna Kompania Naftogaz [2011] EWHC 1820 (Comm); upheld on appeal [2012] EWCA Civ 196, this exception is probably better considered as arising through Section 6 of the Human Rights Act, rather than through public policy alone’. Floyd J. added, at [75], (summarising the Merchant International case): ‘The claimant [in the Merchant International case] argued that the English court should not recognise the later judgment of the Supreme Commercial Court which set aside the judgment of 2006 of the Ukrainian Court. David Steel J. concluded that the English court should not recognise the later judgment. He rejected a submission, based on Government of USA v. Montgomery (No. 2) [2004] UKHL 37, [2004] 1 W.L.R. 2241, that it was only in cases of “flagrant” breaches of the European Convention on Human Rights that enforcement could be refused. He held, and with respect I agree, that where the foreign court is a Convention country, the need for a flagrant breach does not arise. That conclusion is supported by Dicey at paragraph 14–149’. [2012] EWCA Civ 196; [2012] 1 W.L.R. 3036, at [88]: ‘I think it is wiser to decide the issue between the parties on the narrower ground that the English court is being asked, on the basis of the 2011 judgment, which was flagrantly in breach of Article 6 of the Convention…’ This presumably refers to the ‘flagrant’ feature that the Ukrainian decision to rescind the Ukrainian debt judgment involved a release from liability in favour of a defendant company owned by the Ukrainian State. However, Toulson L.J. does not appear to have adopted this narrower approach, ibid., at [68] to [82]; his decision is rooted (i) not just in Article 6 (the requirement that the Convention State’s judgment should not be overturned in

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Thirdly, there is the triangular conundrum, directly confronted in the Yukos case (2012),38 whether court 3 should follow foreign court 2’s assessment (positive or negative) of the fundamental integrity of foreign court 1 (the court responsible for the primary judgment). It is submitted that the English Court of Appeal was right to decide that the doctrine of issue estoppel should not apply so as to preclude the English courts from re-examining the allegation that court 1 lacked judicial independence. And so the decision given by foreign court 2 would not preclude the English courts from conducting a fresh analysis of this contention. However, the more impressive additional reason for denying that court 3 is precluded by foreign court 2 from re-examining the integrity of the judicial process which led to the main decision by court 1 (whether court 2’s determination was positive or negative) is not the variability of national tests concerning judicial independence (although such differences might exist even among mature legal systems),39 but procedural differences in the application of such a test. Thus, even where the national tests match, or uniform ‘transnational’ standards are applied, court 2 and court 3’s successive inquiries into the integrity of court 1 will involve two stages of decision-making: (a) specific findings of fact: court 2 and court 3 must undertake a delicate and contestable appreciation of the primary and specific facts affecting court 1’s conduct of the relevant case and of other specific facts relevant to an assessment of the integrity of its process more generally; and so stage (a) requires factual and expert evidence to establish ‘raw facts’—for example, to examine the allegation that court 1 (or other courts within

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circumstances which violate the principle of legal certainty) but (ii) in common law respect, on the basis of ‘public policy’, for the same principle of legal certainty; and in Toulson L.J.’s consideration of (i), the Article 6 limb, he does not refer to the need for a ‘flagrant’ breach. The third judge, Hooper L.J., agreed with Toulson L.J. [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549. It is likely that there will be national differences in the requirements (i) that decisions must be reached by impartial tribunals; and (ii) that decisions must be adequately reasoned. By contrast, national differences are less likely with respect to (iii) judicial independence or (iv) the basic requirements of due notice (‘natural justice’, and ‘opportunity to controvert’). On these fundamental requirements, N. Andrews, Civil Processes (Intersentia, Cambridge, 2013), vol. 1 (Court Proceedings), ch’s 25 to 29 (ch. 25, ‘The Five Constellations of Procedural Principle’; ch. 26, ‘Judicial Independence and Impartiality’; ch. 27, ‘Due Notice’; ch. 28, ‘Publicity and Open Justice’; ch. 29, ‘The Duty to Give Reasoned Decisions’).

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that court’s jurisdiction) had been subject to threats or undue influence applied ‘top down’ by executive officers, politicians, potentates, or even private gangsters; Rix L.J. in the Yukos case (2012) noted the English requirement that there must be ‘cogent’40 evidence of such unacceptable interference or pressure; and (b) a more general characterisation of the state of justice in the foreign court: just as ‘one swallow does not make a summer’, so an isolated example of State (or other external) interference with the judiciary does not justify a general inference that the relevant legal system lacks judicial independence; thus stage (a) is merely a prelude for stage (b); at the latter stage the English court must make an overall assessment whether the administration of justice in the foreign jurisdiction falls short of the relevant standard; thus in the Yukos case (2012) it would be necessary (after the Court of Appeal had opened the door to such a fresh English assessment) for another English court (the matter would be heard at first instance) to decide, without reliance on the Dutch court’s determination, whether the ‘raw facts’ identified at stage (a) provide a cogent basis for inferring or identifying absence of judicial independence within Russia;41 Rix L.J. in the Yukos case referred to the ‘framework’42 within which each national legal system assesses this type of issue; he noted the English requirement that there is no short-cut to stage (b); instead at stage (a) there must be specific instances43 of executive interference with the judicial process, or wrongful pressure applied. One jurisdiction’s judicial condemnation of another jurisdiction’s judicial arrangements and practices (‘the courts of Ruritania are corrupt/statecontrolled/nationally biased, etc’) is likely to have wide-ranging implications 40

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[2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549, at [150] and [152]: ‘It is thus clear that cogent evidence is required before it is possible to call a foreign court decision partial and dependent. The relevant degree of cogency may well differ in different countries’. Proof of some instances of coercion or undue influence by outside officials or unacceptable deference to outside control might not justify the conclusion that the present case is vitiated by an absence of judicial independence. [2012] EWCA Civ 855, [2013] 1 All E.R. 223; [2013] 1 All E.R. (Comm) 327; [2012] 2 Lloyd’s Rep. 208; [2012] 2C.L.C. 549, at [150]: ‘…It is our own public order which defines the framework of any assessment of this difficult question…’ Ibid., at [150]: ‘Our own law is (or may be) that considerations of comity necessitate specific examples of partiality and dependency before any decision is made not to recognise the judgments of a foreign state…’

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beyond the private interests of the parties to the relevant litigation. Such condemnation is an impeachment of the integrity of another State’s judicial system. This might have commercial and diplomatic ramifications. And the diplomatic repercussions might extend beyond the direct links between the condemned jurisdiction and the ‘enforcing’ jurisdiction.44 For these reasons, it would be absurd to over-stretch or misapply the doctrine of issue preclusion. Earlier foreign determinations, depending on the manifest calibre, experience, rigour, and scrupulosity of the relevant foreign court,45 might have some slight persuasive effect (but it is also submitted that ‘slight persuasive effect’ should not be raised to the level of presumptive force). Certainly, such foreign determinations, including all factual determinations matters mentioned at stages (a) and (b), as examined in the preceding text, should not be accorded formal and decisive preclusive effect. In short, the matter (whether the Ruritanian court lacked judicial independence) will arise as res integra in each foreign jurisdiction. Issue estoppel is an unacceptable shortcut in this context. Res judicata in this delicate context should not become a charter for rogue legal systems to make binding pronouncements declaring the unalloyed integrity of fellow rogue legal systems or mischievously impugning the integrity of pure foreign jurisdictions. Nor should issue estoppel insulate honest but fallible courts from having their (positive or negative) assessment of foreign decisions re-tested by other legal systems. 44

45

In a note on this case, Alex Mills (‘From Russia with Prejudice? The Act of State Doctrine and the Effect of Foreign Proceedings Setting Aside an Arbitral Award’ (2012) 71C.L.J. 465) suggests that the Dutch findings of fact might be accorded effect under the issue estoppel doctrine (but this is an unattractive suggestion for the reasons state in the text above). Perhaps the manifest merits of the Dutch judiciary and of its process seduced Hamblen J. at first instance in the Yukos case into regarding this as an appropriate opportunity to apply the issue estoppel doctrine; but less impressive, indeed shockingly corrupt, legal systems are a matter of common knowledge.

Chapter six

The Protection of Religious Liberty in the United States* The Supreme Court Jurisprudence Maimon Schwarzschild** I Introduction How much legal autonomy – and how much exemption from otherwise applicable laws – ought religious groups to have? When government grows larger and more ambitious, laying down the law in more and more areas of life, these questions arise more often and more urgently. It is a common motif that without some special accommodation or exemption from various laws, it would be difficult for religious communities or even individuals to live religious lives. If public law forbids employment discrimination on the basis of religion, for example, religious groups have an obvious claim for exemption when choosing their clergy, and a claim for autonomy to decide who qualifies to be rabbi, priest, or pastor. The controversy in the United States recently over the Obama Administration mandate to Roman Catholic institutions over abortive drugs and contraception is just one example of the almost limitless situations in which the question of special accommodation can arise. Should Native American or Rastafarian sects be exempted from drug laws that forbid peyote or marijuana? Should Mormons or Muslims be exempted from laws against polygamy? Should Christian Scientists be exempted from laws requiring parents to provide for medical treatment for sick children? Should Sikhs be exempted from laws prohibiting carrying knives in public? Should observant Jewish soldiers or officers be exempted from military uniform rules which would not permit * This chapter is a different version of a longer paper that is expected to be published in San Diego Law Review. ** Professor of Law at the University of San Diego, and Affiliated Professor at the University of Haifa. He has recently been Visiting Professor at the University of Paris (Sorbonne) and at the Hebrew University in Jerusalem. He is an English barrister and an American lawyer; he is an associate member of Landmark Chambers, London.

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_007

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wearing a kippah (headcovering)? Should religious individuals be exempted from duties that would otherwise be required on the job: a nurse who refuses to assist abortion or contraception? A police officer who refuses to arrest antiwar, or anti-abortion, protesters? A postal worker who refuses to deliver mail which he or she considers blasphemous, or (as is now an issue in Israel) who refuses to deliver pamphlets proselytising for Christianity, or who refuses to process military conscription documents? In American constitutional law those questions are analyzed in two main headings. One issue is whether accommodation of religious claims are a violation of the Establishment clause in the us constitution, and the second is whether the recognition of the religious needs are mandated by The Free Exercise Clause of the us constitution. II

Establishment Clause Issues

There have been increasing calls in recent years both in the United States and in other Western democracies, not merely for religious exemptions from secular laws, but also for actual power to adjudicate under religious law. There are already steps in this direction with binding arbitration in religious courts: halakhic or sharia tribunals, for example, created by Jewish and Muslim groups respectively.1 An extensive network of batei din or rabbinical arbitration courts now exists in the us. More recently, Islamic groups have called for the establishment of comparable sharia courts. With such tribunals, business people can contract to arbitrate future disputes in a religious court; or a couple might sign a prenuptial agreement to arbitrate family disputes, including divorce, under religious law. Going further, there have been suggestions in the academic literature that insular or self-contained religious groups might be given public judicial powers, by analogy to the powers of tribal courts on Indian reservations in the United States.2 The Archbishop of Canterbury recently provoked a flurry when he called, in somewhat general terms, for aspects of Islamic sharia law to be adopted in Britain. The role of religious courts in Israel is sometimes cited as an example of how religious adjudication might function in a democratic society.

1 See Michael A. Helfand, “Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders,” 86 NYU L. Rev. 1231 (2011). 2 E.g. Mark Rosen, “The Radical Possibility of Limited Community-Based Interpretation of the Constitution,” 43 William and Mary Law Review 927 (2002).

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In a sense, even special accommodation or religious exemption from secular law implies that religious groups must have some autonomy and power to decide hence in a more or less formal sense, to adjudicate relevant questions by their own standards: to decide at what age Mennonite children should leave school, for instance, or which day is the Sabbath and what are the rules of Sabbath observance; what apparel is religious apparel; what use of peyote is sacramental, and so on. The prospects for actual state (or federal) religious courts in the United States, comparable to the Israeli religious court system, are slim, to put it gently, given separation of church and state under the First Amendment. But to the extent that halakhic or Islamic arbitration awards are enforceable in the secular courts, such religious judgments can have binding force under American law. In a series of articles, Professor Rosen has explored and implicitly or explicitly endorsed how radically power might be devolved to insular or perfectionist groups, notably religious groups. One model cited by Professor Rosen is the power given to tribal Indian courts on federal Indian reservations in the United States.3 The attractive side of increased religious autonomy is fairly obvious. Generous exemption from secular laws and increased availability and enforceability of religious adjudication all provide a framework for people to live more 3 Rosen, supra. And in a recent article, Professor Rosen suggests that perfectionist groups should be eligible for self-governing regulatory authority in a liberal society, provided (1) they have a peaceful disposition toward their non-perfectionist neighbours and do not seek to compel others to live in accordance with their views of the good, (2) those raised in religious perfectionist communities are educated to respect the essentials of liberal society: this requirement to be understood modestly so as not to interfere with religious autonomy “unnecessarily,” and (3) members of the religious communities retain some right to opt out: this, too, to be understood modestly lest it dilute the power of the group a softer opt-out meaning no more than the absence of physical restraints against would-be defectors or perhaps merely the knowledge that there exists a different world out there. Mark D. Rosen, “The Educational Autonomy of Perfectionist Religious Groups in a Liberal State,” 1 Journal of Law, Religious & State 1 (2012). This is a thoughtful and nuanced article, but it seems to me that Professor Rosen greatly underestimates the separatist and socially fragmenting tendencies that such autonomy for religious-perfectionist communities would foster over time, and also the potential for abuse and petty (or not so petty) tyranny by the empowered authorities of such groups over their members. For an example of how newly-granted group autonomy can promote separatism and social break-up, see Charles King, “The Scottish Play,” 91 95) Foreign Affairs 113 (September/October 2012) for an account of how devolution of power to Scotland, beginning in the 1990s after many centuries of Union, fostered a separatist independence movement, virtually non-existent at the outset of devolution, which now seriously threatens to break up the United Kingdom.

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religious lives, under religious law if they choose. These developments empower religion accordingly. They might seem especially well suited to nomo-centric or law-intensive religions like Judaism and Islam. After all, Jews are obliged under Jewish law, at least under appropriate circumstances, to adjudicate disputes before halakhic courts and not to turn to secular tribunals.4 III

Free Exercise Issues

In the United States, these questions as with so many things in American life are often framed as Constitutional issues. The First Amendment says Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. So perhaps some or all of the claims for religious exemption must be granted in order to satisfy free exercise. On the other hand if they are granted, but people who might want to smoke peyote, marry polygamously, and/or carry sharp knives in public for non-religious reasons are prohibited from doing so, this can be said to be an establishment of religion: it would certainly discriminate in favour of religion and against people who might want exemptions from the law for secular (but perhaps for serious or conscientious) reasons. Free exercise and establishment, especially if each is construed broadly, notoriously threaten to collide with one another. The United States Supreme Court has followed a notably up-and-down course in recent decades about special religious accommodation. In two famous cases decided in 1963 and 1972, the Court held that the First Amendment requires exemptions from generally applicable federal and state laws unless there is a compelling state interest (or something close to it) for enforcing the law: a constitutional standard which usually means the government has to give way to a claim under the Bill of Rights. The first case, Sherbert v Verner, involved a Seventh Day Adventist who wanted an exemption from a requirement to be available for work on Saturday as a condition of receiving unemployment benefit; the second, Wisconsin v Yoder, involved an Amish community that wanted 4 Gittin 88b; but see Sanhedrin 23a. See generally J. David Bleich, Survey of Recent Halakhic Periodical Literature: Litigation and Arbitration Before Non-Jews, 34:3 Tradition 58 (2000); Michael A Helfand & Yaacov Feit, Confirming Piskei Din as Arbitration awards, 61 Journal of Halacha & Contemporary Society 5 (2011). Of course Jewish law does not, because it cannot, prescribe to what extent (if at all) non-Jewish secular courts will enforce halakhic arbitration judgments in cases where the losing party does not submit voluntarily to the judgment.

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its children excused from compulsory school attendance past the 8th grade.5 The Court held that Free Exercise requires a religious exemption in both cases. But in 1990, in Employment Division v Smith, the Supreme Court reversed course and said that the Free Exercise Clause does not require religious exceptions from generally-applicable laws that are enacted for secular purposes.6 The idea implicit in the decision is that there should be no official preference for religion over non-religion. The United States Congress reacted sharply to the decision by enacting the Religious Freedom Restoration Act of 1993 (rfra), seeking to restore the pre-Smith compelling state interest standard which favoured religious exemptions.7 In 1997, the Supreme Court struck back, and struck down rfra as unconstitutional: Congress has no power to impose this pro-exemption requirement on the states.8 Recently, in yet another turn, the Court tacitly upheld rfra for religious exemptions from federal laws (although Congress cannot require such exemptions from state laws).9 In practice, there has been less change in public policy toward religious exemptions than a reading of the (somewhat dizzying) Supreme Court decisions might suggest. Perhaps more importantly, federal and state laws even, or especially, after Smith have been strongly favourable towards religious exemptions.10 rfra was enacted by unanimous vote in the House of Representatives (better than the Declaration of War after Pearl Harbor), and by almost unanimous vote in the Senate; it still applies to the federal government, requiring religious exemption unless a compelling state interest militates against it. More than half the states have enacted their own rfra-like laws. Twenty-three states and the federal 5

Sherbert v. Verner, 374 US 389 (1963); Wisconsin v. Yoder, 406 US 205 (1972). Justice William O. Douglas provocative dissent in Yoder suggested that a high school child may or may not want to be harnessed for life to the Amish community: [h]e may want to be a pianist or an astronaut or an oceanographer. To do so, he will have to break with the Amish tradition. The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we honor today. 6 Employment Div., Dept. of Human Resources v. Smith, 49 US 872 (1990). 7 Pub. L. No. 103–141, 107 Stat. 1488 (codified at 42 USC 2000bb to 2000bb-4 (2006)). 8 City of Boerne v. Flores, 521 US 507 (1997). 9 See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 US 418 (2006) (under rfra the federal government can only seize and preclude the use of an otherwise-illegal substance for religious ceremonial use upon a compelling state interest). 10 Smith and the ensuing Supreme Court decisions are about whether religious exemptions are required as a matter of Free Exercise by the Constitution. But federal or state statutes are free to grant more special accommodation than the Constitution (minimally) requires; so long, of course, as the special accommodation isn’t viewed as rising to the level of an Establishment of religion.

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government allow sacramental use of peyote.11 Congress granted the Amish an exemption from social security taxes after the Supreme Court turned it down.12 Congress granted members of the armed forces the right to wear religious apparel after the Supreme Court turned down a claim by an Air Force doctor, an observant Jew, to wear a kippah on duty.13 Some of these enactments might really give cause for second thoughts, even if one supports generous religious exemptions. The federal Civil Rights Act of 1964, for example, prohibits employment discrimination on account of race, religion, sex, and national origin. But under a 1972 amendment, religious corporations and institutions may discriminate on the basis of religion.14 With the broad (or over-broad) exemption, there is the potential for enterprises owned by religious bodies to swallow the anti-discrimination law, at least in some localities or in some trades.15 IV

Reflections on Meeting the Challenges

When religious autonomy is enshrined in secular law, however, there are potential and actual problems and drawbacks as well. In the first place, the substance of religious law may be at odds with the values of a liberal society. This arises most obviously on the numerous points where Jewish or Islamic law, for example, are in-egalitarian as between men and women. Divergences from liberal norms can arise in religious commercial law and in other areas as well. For example, it may conflict with federal and state antitrust laws in the United States for batei din or rabbinic arbitration tribunals to enforce the halakhic principle of hasagat gevul which restricts business competition that might put an existing business out of business.16 A plausible response to this sort of concern is that a liberal society is pluralist and does not require everyone to live by liberal norms: indeed that it would be illiberal to do so. So long as there are ample choices and full freedom to 11 See Employment Div. v. Smith, supra, at 913 n. 5 (Blackmun, J., dissenting). 12 See 26 USC 3127 (2006). 13 See 10 USC 774 (2006). 14 42 USC 2000e-1. 15 See generally Nancy L. Rosenblum, “Amos: Religious Autonomy and the Moral Uses of Pluralism,” in Nancy L. Rosenblum (ed.), Obligations of Citizenship and Demands of Faith, 165, 183–187 (2000) (arguing that broadened religious accommodation of employers under the amended provisions of Title VII undesirably enables the use of economic power to compel adherence to religious practice). 16 See generally Simcha Krauss, Hasagath Gvul, 29 Journal of Halacha & Contemporary Society 5 (Spring 1995).

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affiliate and disaffiliate, and so long as the interests of third parties are not compromised, liberal society should not be offended if some people and groups, including religious groups, voluntarily opt for non-liberal ways of life. In the case of hasagat gevul, this runs into the objection that third parties are compromised: that the purpose of antitrust, and of public policy favouring competition, is to promote lower prices and better quality goods and services for everyone, and that the public suffers whenever there is less competition. As for respecting peoples free choice to submit to religious law: the more readily secular courts enforce religious arbitral judgments, the more this implies scrutiny by the courts into just how voluntary, and how fully informed, the parties were when they consented to religious adjudication. Religious communities might feel such scrutiny intrusive, both as to the community pressures which in practice are often intense which undoubtedly affect whether people agree to religious adjudication, and also as to how much (or how little) the parties might know in advance about the interpretive or ideological leanings or commitments of particular religious tribunals. There is also a concern, in terms of social cohesion, about the balkanising effects of group autonomy, especially where religious groups, identity groups, or other groups inspiring deep passion and commitment are involved. This concern traces back to Hobbes and Locke, who wrote during or just after a period of religious civil war, and it has been a perennial worry in the history of liberal thought.17 The apprehension, of course, is that when such groups are empowered, it tends to diminish their members loyalty to, or even involvement in, the broader liberal community. If things go too far, it threatens to begin pulling liberal society apart. This concern has re-emerged sharply in Western European countries in recent years, where Muslim communities have grown, and where Islamic or Islamist leaders have achieved a degree of autonomy under multicultural policy. The concern, of course, is that group differences, far from shrinking, are growing more intractable and more threatening as a result of these policies. If religions are granted exemption and autonomy that others might not be granted, there is also the ever-more-uncertain question of who or what is a religion. An American court today may confront not only the question of whether an Air Force doctor who is an observant Jew may wear a kippah on duty, but also a case of a Free Exercise claimant who asserts that his religious beliefs require him to dress like a chicken when going to court.18 17

See Richard Boyd, Uncivil Society: The Perils of Pluralism and the Making of Modern Liberalism (Lexington Books 2004). 18 Compare Goldman v. Weinberger, 475 us 503 (1986) (upholding prohibition of the kippah) with State v. Hodges, 695  S.W.2day 171 (Tenn. 1985) (quashing a contempt citation and

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If religions are granted exemption from otherwise applicable laws, and even a degree of autonomous authority, there is an obvious temptation for all sorts of groups to claim to be religions and to demand special privileges and powers. A well-known but by no means unique example is the Church of Scientology, which began as an entirely secular therapy-marketing enterprise founded by the science-fiction writer L. Ron Hubbard, but which went on to claim religious status, partly in hopes of a tax exemption. Despite its considerable criminal history by then, Scientology was eventually granted tax exemption in 1993 as a bona fide religion.19 There is a further point, which perhaps deserves more emphasis than it sometimes receives. If the state offers a significant degree of religious autonomy power over jobs, resources, and decisions that affect people’s lives it can encourage the take-over of religious communities by authoritarian and factional religious leaders. This may partly be due to the attraction that autonomous power might have for the most enthusiastic people within a religious group or its leadership, who may tend to be the most extreme people. But autonomy has a perverse logic of its own, which more directly encourages extremism: namely, if autonomous rulings are not going to differ from the rules of secular, liberal society, then why is it important that the religious group should have autonomy? Whereas the more radically the group’s rulings do differ including the rulings of religious arbitration courts the more necessary and justified the claim for autonomy. Once there is autonomy, in other words, there is liable to be a cascade effect towards more distinctive, which is to say more extreme, positions on the part of the autonomous institutions and those who steer them, if only to vindicate the idea that autonomy is necessary in the first place.20 Extensive religious autonomy, in short, can lead to the creation with state approval of islands of authoritarianism in an otherwise free and democratic society. It can also promote corruption of various kinds, which often accompanies authoritarianism. Corruption, not on a modest scale, has certainly been

19 20

remanding to the trial court for further consideration of the religious claim for the chicken costume). In a word, the kippah lost. The chicken costume, at least tentatively, won. See Hugh B. Urban, The Church of Scientology (Princeton University Press 2011). The religious courts in Israel are a cautionary example in this context. The State of Israel, as is also the case in many Muslim-majority countries, maintains a religious court system within the state framework, with jurisdiction over family law, including marriage and divorce and related questions of personal status: even who can be buried in a Jewish cemetery.

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one of the issues in Israel in the context of religious legal autonomy and political power. A consideration of these various problems, actual and potential, with religious autonomy is not to suggest that religious exemptions from secular law, and a measure of a religious autonomy, are simply undesirable. On the contrary, they may be indispensable for religious people and groups to be free to live religious lives. Special accommodation of religious needs under secular law, and arbitral alternate dispute resolution sides. If the government authorities are basically respectful towards religious concerns (which they generally have been in American history); if a rough consensus about who and what is a religion does not break down in a welter of opportunistic or unhinged claims; if religious groups themselves do not seek to abuse either the host society or their own members: then there is the prospect of a reasonable balance of interests. But all this presupposes a degree of social cohesion and good faith: that all concerned should be touched…by the better angels of our nature.21 Relying on everyone’s being touched by the better angels of our nature, unfortunately, can sometimes be uncertain. It is all the more uncertain in a fractious and polarised society, such as America has perhaps increasingly become. At root, the question of special accommodation, and of religious adjudicatory independence, arise most urgently when government grows in its reach and ambition. After all, if most areas of life, including those that touch on religious life, are left to peoples private arrangement, then not much special accommodation will be necessary. But when government takes control over more and more areas of life, regulating who shall do what, under what rules and conditions, then clashes with one or another religious way of life are almost inevitable. The dispute over government mandates to provide abortive drugs and contraception, in the framework of increasing government control and possible takeover of health care in America, is merely a well-known recent example. With a relatively open market in health care and private health insurance, religious institutions needed no special exemptions to adopt their own approaches, on questions of contraception and abortion as on other matters. But greatly increased government regulation implies more uniform standards and rules, and hence more controversy over whether there should be religious exemptions, and if so, for whom, to what degree, and on what terms. Special accommodation for religion and special adjudicatory powers are problematic, for reasons I have tried to suggest. In the long run, especially under less-than-favourable social circumstances, they might not be workable. If not, then society may ultimately have to choose between big government an 21

Abraham Lincoln, First Inaugural Address (1861).

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ever-growing and ever-more-powerful administrative and redistributive state on the one hand, and lively religious pluralism and thriving religious life on the other. This, it seems to me, and not the dubious panaceas of religious exemption and group autonomy, is what religious people and groups ought to fix their attention on.

Chapter seven

The Culture of Peace and Human Rights The Development of Human Rights Protection in the European Union Shimon Shetreet* I

Introduction: The Changing Constitutional Infrastructure in Europe

The European Union (“eu”) won the Nobel Peace Prize in 2012. There are certainly arguments to be made regarding whether the political partnerships of countries should receive such a prize, but if they are so entitled then the eu richly deserved the accolades for building a noble culture of peace in Europe after the Second World War. The European Union now counts 28 countries beneath its wings, a remarkable achievement in itself. The shining colors of this great achievement however, are now clouded by an assortment of challenges. Currently, the eu is bogged in the midst of resolving the Eurozone crisis, the collapse of the Greek economy, and the further economic crises in weaker parts of the union such as Spain,1 Portugal,2 and Italy.3 There is also growing Euro-skepticism regarding the endeavor from a practical standpoint, and calls for reassessing the desirability of membership in the eu plague the award podium. There is talk of a possible referendum in the United Kingdom4 and the leader of the Dutch right-wing Freedom Party, Geert Wilders, is vehemently advocating a swift exit from the eu.5 This article focuses discussion on the benefits of the eu, namely, it has demonstrated a commitment to human rights, integrated it into its

* Shimon Shetreet, llb, llm, Hebrew University, mcl, dcl, University of Chicago, holds the Greenblatt Chair of Public and International Law at the Hebrew University of Jerusalem, and is past chairman of the Sacher Institute of Legislative Research and Comparative Law. He is the author and editor of many books and articles, and President of the International Association of Judicial Independence and World Peace. Email: [email protected] .ac.il. 1 “The Spanish Economy: On Being Propped Up” The Economist 25 May 2013. Print. 2 “Portugal and the Euro: Floundering On” The Economist 27 June 2013. Print. 3 “Italian Government Debt: Well Oiled” The Economist 5 Aug. 2013. Online. 4 “UK’s eu referendum moves a step closer” Benjamin Fox. eu Observer 7 June 2013. Online. 5 “The Dutch and the eu: A Founding Member’s Apostasy.” The Economist 3 Aug. 2013. Print.

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constitutional infrastructure, and thereby remarkably strengthened the culture of peace and rule of law in the region. The eu has developed significantly from its original form, transforming itself from an economy-based coalition into a community of human rights, freedom, and democracy, that respects the importance of its humanist and religious inheritance. One cannot exaggerate the importance of the integration of human rights and democratic values into the eu constitutional infrastructure and the formulation of the eu religious identity. It was only by the completion of this process that the eu was enabled to create a culture of peace that encompasses all four foundations of peace needed for lasting peace: political and security peace, economic peace, cultural or value peace, and religious peace. This integration can be traced to the Lisbon treaty. It is also the Lisbon Treaty that marks the delineation of the eu constitutional infrastructure from a predominantly economy-based structure to one that is expressly based on the broader foundations of democratic, humanist, and religious values. The culture of peace in earlier European communities that was later incorporated into the European Community and finally culminated in the eu was predominantly based on economic cooperation. Human rights and democratic values as a set of norms were outside of the traditional eu constitutional infrastructure and were provided via the European Convention on Human Rights (“echr”), which all member states were party to. However, the eu took a good deal of time before expressly providing for the protection of democratic values and human rights. The linkage process between echr Strasburg jurisprudence and the eu’s Luxemburg court of justice references the jurisprudence of the mid-1970s Strasburg echr. While on the treaty-law side, it began in the Maastricht Treaty of 1992.6 These values were provided for again in the 1997 Treaty of Amsterdam and in the Nice Treaty of 2001.7 Finally, the 2000 Charter of the Fundamental Rights of the eu dealt with human rights expressly and in detail. This paper will focus on the development of the eu from the solely economy-based community it once was to that of the current economy and human rights-based union. II

The Integration of Human Rights Provisions in the Treaties of the European Union

In recent decades, we have witnessed that international human rights law has a significant impact upon domestic laws and more frequent recourse to 6 Treaty on European Union, 7 February 1992, O.J. C 191 (entered into force 1 November 1993) [“TEU” or “Maastricht Treaty”]. 7 Treaty of Amsterdam, 2 October 1997 O.J. C 340 (entered into force 1 May 1999); Treaty of Nice, signed on 26 February 2001 O.J.C 80 (entered into force on 1 February 2003).

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international human rights standards, as reflected in international treaties and the jurisprudence of international courts and tribunals. We have also seen national supreme courts referring to the jurisprudence of international courts and citing decisions from foreign jurisdictions more so than in the past. In some jurisdictions, the recourse to transnational law stems from international treaty, but in many jurisdictions such reliance on international human standards is occurring in jurisdictions not party to a treaty. A number of developments may explain this widespread practice. PostWWII Europe has spawned a massive number of international human rights treaties, as well as, the globalization and networking of judges on a regional and international level. In the first three or four decades of the post-WWII era, the focus of international human rights discourse was on the right of self-determination; however, the focus has since shifted to the rights of developing countries for further development. And, in later decades, the issue of the great gap between North and South, between developed and developing countries, also became an issue in international human rights discourse as has been reflected in the claims of privileges for developing countries in trade talks. This same sentiment was also expressed in the leading economic powers demands at the G7, G8, and now G20 summits to adjust various economic policies. In this way, accommodations were made that took into account the needs of weaker economies. One such policy included restraining subsidies to agricultural industries in advanced economies, such as France, to allow more agricultural imports from Africa into Europe. The eu has developed significantly in its approach to human rights while transitioning from an economy-based community into one based also upon the values of human rights, freedom, democracy, and respect for the European humanist and religious inheritance. This new community focus has created a culture of peace. The culture of peace concept refers to four foundations of peace, all four of which must be maintained to remain successful. The four foundations are: (1) political and security peace; (2) economic peace; (3) cultural or value peace; and (4) religious peace. The first foundation of peace is a fair political arrangement which is essential for true peace between nations, as nations must end violence and hostilities and must agree on borders, insure normalization, have diplomatic relations, and solve all open questions on the political agendas of each nation. The second foundation, economic peace, is incumbent on the parties agreeing to and implementing economic cooperation. This cooperation can only be achieved if based upon mutual respect of the interests each party holds and the fair opportunity for trade, infrastructure, transport, tourism, and flow of goods. The third foundation, cultural peace or value peace, means commitment to

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democracy, human rights, the rule of law, and judicial independence. Finally, the fourth foundation is religious peace, as countries must approach religions with respect, tolerance, and acceptance if true peace is to be sustained. The culture of peace prevalent in earlier European communities was predominantly based on economy and economic cooperation while human rights and democratic values was provided by a set of norms outside of the eu constitutional infrastructure, i.e. the echr. The process resulting in the eu existing today was both long and arduous but provides expressly for the protection of democratic values and human rights. The linking was done on two bridges: the bridges of ecj Jurisprudence and the bridge of treaties. Linking ECtHR jurisprudence and the eu’s Luxemburg European Court of Justice (“ecj”) can be traced to the jurisprudence of the mid-1970’s Strasburg ECtHR. Additionally, in regards to treaties, the Maastricht Treaty of 1992, the 1997 Treaty of Amsterdam, and the Nice Treaty of 2001 all led to the 2000 Charter of the Fundamental Rights of the eu.8 III

The Contribution of the Jurisprudence of the European Court of Justice to the Adoption of Human Rights Standards in the Constitutional Infrastructure of the European Union

Running parallel to the rather gradual process of adopting a series of treaties and the charters, the ecj has emerged as a major player in the development of eu human rights law. The ecj initially rejected jurisdiction over human rights matters.9 However, in Stauder, the ecj established fundamental human rights as general principles of Community law that the Court will protect.10 The ecj’s development of human rights law has been that of judge-made law.11 8

Treaty on European Union, 7 February 1992, O.J. C 191 (entered into force 1 November 1993) [“TEU” or “Maastricht Treaty”]; Treaty of Amsterdam, 2 October 1997 O.J. C 340 (entered into force 1 May 1999); Treaty of Nice, signed on 26 February 2001 O.J.C 80 (entered into force on 1 February 2003). 9 The ecj originally refused jurisdiction to engage in judicial review based on fundamental rights. In Stork & Co., the Court held that under Article 8 of the ECSC Treaty, it is only required to apply Community law and will not consider rights entitlements under national constitutions. Stork & Co. v. High Authority of the European Coal and Steel Community, Case 1/58, [1959] ecr 17 at para. 4(a). Subsequent case law reversed this decision. 10 Erich Stauder v. City of Ulm, Sozialamt, Case 29/69 [1969] E.C.R. 41 (eur-Lex), Grounds of Judgment at para. 7. 11 Compare Chava Landau, “A New Regime of Human Rights in the EU?” 10 Eur. J.L. Reform (2008) 557.

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The concomitant relationship to the echr and ECtHR can be divided into three stages: first, an initial stage where rights are discussed as principles in general terms;12 second, an intermediate stage where specific mention of Convention rights are used in judgments13 and third, an advanced stage in which the ecj refers to the jurisprudence of the ECtHR, engaging in more explicit judicial dialogue with that court.14 12

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A prominent ecj human rights case was Internationale Handelsgesellschaft, where the ecj identified the constitutions of member states as the inspiration for rights, albeit “within the framework of the structure and objectives of the community.” The ecj originally refused jurisdiction to engage in judicial review based on fundamental rights. In Stork & Co., the Court held that under Article 8 of the ECSC Treaty, it is only required to apply Community law and will not consider rights entitlements under national constitutions. Stork & Co. v. High Authority of the European Coal and Steel Community, Case 1/58, [1959] ecr 17 at para. 4(a). Subsequent case law reversed this decision. In J. Nold, Kohlen- und Baustoffgrohandlung v. Commission, Case 4/73 [1974] ecr 491 at para. 13, the Court found that international treaties for the protection of human rights could [also] supply guidelines to follow. It was not clear, either then or now, what specific “constitutional traditions” are common to all Member States. In 1974, France ratified the echr: In Rutili v. Ministre de l’Interieur, Case 36/75 [1975] ecr 1219, the ecj cited the echr for the first time, finding that it supplied “guidelines which should be followed within the framework of Community law.” In Liselotte Hauer v. Land Rheinland-Pfalz, Case 44/79, [1979] ecr 3727, the ecj determined that these “general principles” were minimum standards from which Member States may derogate if the domestic regime provides greater rights protection. In Johnston v. Chief Constable of the Royal Ulster Constabulary, Case C-222/84, [1986] ecr 1651 at para. 18, the ecj acknowledged that the Convention has a special significance in determining what the “general principles” are as regards to human rights. In more recent cases such as Schmidberger v. Austria, Case C-112/00 [2003] ecr I-5659, and Omega Spielhallen v. Bonn, Case C-36/02 [2004] ecr I-9609, The ecj has gone so far as permit human rights to restrict fundamental freedoms explicitly enshrined in the treaties. ecj activity left open a question of enormous significance: whose interpretation of these rights should prevail? The ecj has never acknowledged being bound by the case-law of the ECtHR. The ecj explicitly referred to ECtHR jurisprudence for the first time in1996 in P v. S and Cornwall County Council, Case C-13/94 [1996] ecr I-02143 at para. 16. In practice the ecj has taken this body of case-law very seriously, even going so far as to re-consider its past decisions in light of developments in Strasbourg. Notably in Roquette Fr‫ט‬res (2002), the ecj reconsidered its 1989 Hoechst decision in light of the ECtHR’s decisions in Niemietz concerning the search of a business premises under Article 8 of the echr. When the ecj originally ruled on this issue in Hoechst AG v. Commission, Cases 46/87 and 227/88, [1989] ecr 2859 at para. 18, it noted that there was no applicable ECtHR jurisprudence. It did not find that business premises were protected under Article 8. Hoechst was criticized for failing to consider potentially relevant ECtHR cases. In 1992, the

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The Lisbon Treaty: The Final Step in the Integration of Human Rights

The complete integration of human rights and democratic values in the eu constitutional infrastructure was culminated in the 2009 Lisbon Treaty Article 6 which provides as follows: 1.

2. 3.

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. 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. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.15

This treaty completes the integration of human rights and democratic values into the eu constitutional infrastructure completing the third pillar, that of cultural peace, or values peace. As to the building of the fourth pillar, the religious peace, the eu has debated at length the issue of its religious identity. Reference to God was debated and rejected, similarly an express reference to the Christian religion was not made. The compromise struck, both in the preamble to the 2004 Constitution which

15

ECtHR unambiguously found in Niemietz v. Germany, Series A, no. 251 (1992) 16 EHRR 97 at para. 31 that business premises were protected under Article 8. Subsequently the ecj to reversed itself in Roquette Frυres, finding that Article 8 did apply to protect the inviolability of business premises from search. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 17 December 2007, O.J. C 306/01 (entered into force 1 December 2009) [“Lisbon Treaty”].

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was eventually rejected and in the Lisbon Treaty which was approved, represents a model of tolerance. The compromise formulated speaks to Europe’s rich humanist and religious inheritance; “[d]rawing inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law.” It is this humanist and religious inheritance acknowledged in the Lisbon treaty that enables the fourth pillar of religious peace to be added to the eu constitutional infrastructure. V

Conclusion: Major Challenges Facing the eu

The eu has faced in recent years in addition to economic problems and Eurozone crisis, two challenges relating to its identity and constitutional structure. One is the issue of the potential accession of Turkey into the eu. The drafting of a European Constitution is another. As a majority Muslim society Turkey has provoked fierce debate about what the religious and cultural boundaries of Europe should be.16 Furthermore, efforts to introduce an eu Constitution have provoked a similar crisis.17 Member States attempting to define a common heritage of European countries has proven a difficult and emotional task.18 At the heart of both crises is a debate about the idea of Europe, and its cultural identity. 16

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In an interview with Le Monde, Val’ry Giscard d’Estaing, the former French president and author of the eu draft constitution, said the admission of Turkey would be “the end of the European Union.” According to Giscard, Turkey has “a different culture, a different approach, a different way of life…its capital is not in Europe, 95% of its population live outside Europe. It is not a European country.” Stephen Castle, “Giscard predicts ‘end of EU’ if Turkey joins” The Independent (9 November 2002), online: The Independent . Treaty establishing a Constitution for Europe, 16 December 2004, O.J. C 310/01 (due to enter into force on 1 November 2006 but the Treaty was not ratified by required Member States and so it never entered into force) [“EU Constitution” or “European Constitution”]. The debate centered around the preambular recitals and what the philosophical foundation for European integration is. Some interested parties, notably the Vatican and related organizations like Commission des Episcopats de la Communaut’ Europ’enne (comece) strongly lobbied for there to be a reference to Europe’s “Christian heritage.” See Ronan McCrea, “The Recognition of Religion within the Constitutional and Political Order of the European Union” (2009) LEQS Paper No. 10/2009, online: SSRN .

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The transformation of Europe from an economic union to a union grounded in a shared set of values of cultural and religious heritage is the product of both political and judicial activities. To some extent, these activities have followed separate tracks of development. The 2009 Lisbon Treaty undoubtedly opened the door to a convergence of these two tracks.19 The Treaty reshaped the juridical landscape that courts interpret and made the Charter of Fundamental Rights a binding eu law. Perhaps most importantly, it required the eu to accede to the European Convention on Human Rights (echr). This course of events placed human rights at the centre of European integration. However, the Lisbon Treaty text remains ambiguous in many respects and the introduction of a Charter and accession to the echr should increase the scope of integration. So, while far more realized than its economy-based predecessor, the institutional design of human rights protection in Europe is far from ideal. 19

Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 17 December 2007, O.J. C 306/01 (entered into force 1 December 2009).

Chapter EIGHT

Globalization of Human Rights and Mutual Influence between Courts The Innovative Reverse Path of the Right to the Truth* Arianna Vedaschi** I Introduction In December 2012 the European Court of Human Rights delivered its final judgment on the (in)famous case El-Masri V. Macedonia.1 Though the court had addressed the widely debated practice of extraordinary renditions2 in at * I would like to thank Veronica Gaffuri and Gabriele Marino whom I am indebted to for their invaluable support with research. I would also like to express my gratitude to friend and colleague Justin Frosini for his useful comments and to professor Giuseppe F. Ferrari for his constructive critical observations. ** Arianna Vedaschi is Associate Professor of Public Law at Bocconi University, Milan. She is the author of À la guerre comme à la guerre? La disciplina della guerra nel diritto 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 counterterrorism measures and human rights. She was a Visiting Professor and Scholar at several Universities in Europe, the USA and Latin America. She is a registered Attorney-at-Law in Italy, Milan Bar. 1 El-Masri v. the Former Yugoslav Republic of Macedonia [gc] no. 39630/09, 13 December 2012. 2 According to the European Commission for Democracy Through Law (Venice Commission), Opinion on the International legal obligations of Council of Europe Member States in respect of secret detention facilities and inter-state transport of prisoners, no. 363/2005, 17 March 2006 at [30], extraordinary rendition is a: “process of one State obtaining custody over a person suspected of involvement in serious crime (e.g. terrorism) in the territory of another State and/or the transfer of such a person to custody in the first State’s territory, or a place subject to its jurisdiction, or to a third State,” available at www.venice.coe.int. See also Irish Human Rights Commission (ihrc), “Extraordinary Rendition: A Review of Ireland’s Human Rights Obligations” (2007), p. 7 ff., available at http://www.ihrc.ie. For the extraordinary rendition practice see also: S. Egan, “Extraordinary Rendition and the Quest for Accountability in Europe” Working papers in Law, Criminology & Socio-Legal Studies, research paper no. 05/2012, University College Dublin, available at http://ssrn.com; M.L. Satterthwaite, “The Legal Regime Governing Transfer of Persons in the Fight Against Terrorism” in N. Schrijver, © koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_009

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least three previous cases, the decision given in El-Masri showed innovative legal reasoning and a wholly innovative attitude of the judges towards the farreaching enforcement of the right to the truth.3 The assertion of such a right undoubtedly represents a milestone in the European Court’s case law, imbuing the whole judgment with a flavour of universality. Although the right to the truth is far from being uncommon on the other side of the Atlantic, El-Masri is perhaps the first case, in the relatively long judicial history of the European Court, to see this right serving as one of the main pillars for a severe conviction. The surprising innovation, however, lies not only in the recourse to the right per se, but also in the “new” interpretation of such a right adopted by the court. Starting from the analysis of the European Court judgment in El-Masri, with an eye to the legal reasoning related to the right to the truth, we will attempt to address the innovative reverse path followed by this right, from the wellestablished case law of the Inter-American Court of Human Rights in San José, to the Chamber of the European Court of Human Rights in Strasbourg. Born as a theorisation in the post-war context of the early fifties, the right to the truth has increasingly developed in Latin America and Africa since 1980. Not only did the precursory case law of the Inter-American Court make a fundamental contribution to the success of the right, but also the widespread diffusion among those peculiar socio-political contexts of non-judicial bodies known as truth commissions. Often preferred by governing élites concerned with the potential effects of a full judicial review on politically sensitive issues, truth commissions played a major role in reconstructing “historical truth” L. Van Den Herik, “Counter-Terrorism and International Law: Meeting the Challenges” (2007) 54 Netherlands International Law Review 572; L. Fisher, “Extraordinary Rendition: the Price of Secrecy” (2008) 57 Am. U.L. Rev. 1405; M.L. Satterthwaite, “Rendered Meaningless: Extraordinary Rendition and the Rule of Law” (2007) 75 George Washington Law Review 1333; D. Weissbrodt, A. Bergquist, “Extraordinary Rendition and the Torture Convention” (2006) 46 Va. J. Int’l. L. 585; D. Weissbrodt, A. Bergquist, “Extraordinary Rendition: A Human Rights Analysis” (2006) 19 Harvard H.R.L. J. 123; P. Gaeta, “Extraordinary Renditions e immunità dalla giurisdizione penale degli agenti di Stati esteri: il caso Abu Omar” (2006) Riv. dir. Internaz. 126; D. Huyck, “Fade to black: Extraordinary Renditions Claims” (2005) 17 Minn. J. Int’l L. 435. 3 It is common knowledge that the right to the truth is recognised by international and European human rights law; in particular, at the United Nations level, see Article 24, para. 2, International Convention for the Protection of All Persons from Enforced Disappearance, 2006; and the Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity. See also United Nations Human Rights Council, Resolution 9/11, adopted on 24 September 2008 and Resolution 12/12, adopted on 12 October 2009. On El-Masri case: T. Scovazzi, “Considerazioni in tema di segreto di Stato e gravi violazioni dei diritti umani” in G. Venturini, S. Bariatti (eds.), Individual Rights and International Justice (Giuffré 2009), pp. 885 ff.

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somehow “working for the courts” (and for the Inter-American Court in particular) as highly qualified sources of evidence. In our closing remarks we will conclude that the achievements of the European Court in the El-Masri case, though ground-breaking in their implications, still represent the starting point for further reasoning aimed at establishing in Europe a stronger and better-defined role for the right to the truth. In brief, we hold that the innovative reverse path of the right to the truth paves the way for a new era of mutual influence between courts in the field of human rights, where European countries will have much more to learn than they expected. II The El-Masri Case Khalid El-Masri, a German citizen born in Kuwait to Lebanese parents, was stopped by Macedonian border guards while entering the former Yugoslav Republic of Macedonia (hereinafter Macedonia) from Serbia in December 2003 on alleged irregularities of his travel documents. After being questioned, he was transferred against his will to Skopje, where he was compelled to remain locked-up in a motel room. There, El-Masri was repeatedly interrogated by Macedonian officers (in a language different from his mother tongue) about his supposed links with the 9/11 hijackers. During his unlawful detention in Macedonia, he refused food for ten days to protest against the psychological mistreatment he was being subjected to. After twenty-three days he was rendered to a commando of American officers (probably belonging to the Central Intelligence Agency) at Skopje airport, where he was tortured (by means of a particular technique, called “capture-shock”)4 before being forcibly flown to Afghanistan via Baghdad. He was held in custody at Salt Pit (a brick factory in northern Kabul) for four months, where he was repeatedly tortured and subjected to physical and psychological mistreatment in order to obtain information about his supposed 4 “Capture-shock,” described as a standardised procedure in a declassified cia Memorandum released in 2004, is a process aimed at breaking prisoners’ will by inducing a state of “learned helplessness and dependence,” which is conducive to effective interrogation. “During the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods” in order to “contribute to [his] physical and psychological condition prior to the start of interrogation.” Several violent techniques were envisaged by the Memorandum, such as “walling” and stress positions. The specific aim of the procedure can be synthesised in the use of both “physical and psychological pressures in a comprehensive, systematic, and cumulative manner to influence behaviour, to overcome a detainee’s resistance posture, breaking their physical and moral resistance.” See also Central Intelligence Agency, “Memo to the Department of Justice Command Centre-Background Paper on CIA’s

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ties with Al-Qaeda;5 furthermore, according to El-Masri’s account, a German intelligence officer was involved in his “enhanced” questioning. US officials needed four months to understand the truth: El-Masri’s abduction was nothing but a case of mistaken identity. The victim’s name was similar to Khalid Al-Masri, suspected of being a member of Al-Qaeda’s “Hamburg Cell.” In May 2004 El-Masri was released at night on a desolated road in Albania, captured by Albanian guards and finally returned to Germany.6 German authorities started investigating the case and in January 2007, the Munich Prosecutor issued thirteen arrest warrants for people suspected of involvement in El-Masri’s rendition.7 A

The El-Masri Case: Judicial Review of the State Secrets Privilege before US Courts

With the support of the American Civil Liberties Union, El-Masri filed a complaint in the United States Court for the Eastern District of Virginia, but his case was dismissed by both the District Court and the Court of Appeals on the basis of the State secrets doctrine.8 A brief analysis of the case before US courts is helpful in understanding how, according to American judges, national security should always prevail over the rights of torture victims to an effective judicial remedy, including an official public recognition of their sufferings. Whilst addressing the right to the truth, US courts admitted the “possibility” that a secret rendition program does exist. Judicial review by means of a civil suit, however, remains banned by the State secrets privilege.9 5

6 7 8

9

combined use of Interrogation techniques,” 30 December 2004, available at http://www.aclu .org/torturefoia/released/082409/olcremand/2004olc97.pdf. In particular with Muhammed Atta and Ramzi Bin Al-Shibh. On the matter, see also D. Priest, “Wrongful Imprisonment: Anatomy of a CIA Mistake” The Washington Post 04-12-2005, available at www.washingtonpost.com; S. Shane, “German Held in Afghan Jail Files Lawsuit” The New York Times 07-12-2005, available at www.nytimes.com; D. Priest, “The Wronged Men” The Washington Post 29-11-2006, available at www.washingtonpost.com. For more details see European Court of Human Rights, application no. 39630/09, Statement of facts, 8 October 2010, available at hudoc.echr.coe.int. See “Germany issues CIA arrest orders” BBC News 31-01-2007, available at www.bbc.co.uk. El-Masri v. Tenet 437 F. Supp. 2d (E.D.Va. 2006); El-Masri v. United States 479 F. 3d (4 Cir. 2007). See M.L. Satterthwaite, “The Story of El Masri v. Tenet: Human Rights and Humanitarian Law in the ‘War on Terror’” (2008) New York University School of Law, Working Paper, available at http://ssrn.com. For State secrets privilege see D. Cole, F. Fabbrini, A. Vedaschi, Secrecy, National Security and the Vindication of Constitutional Law (Elgar 2013).

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In addressing the legitimacy of the State secrets privilege asserted by the US Government in El-Masri v. Tenet,10 both the United States District Court for the Eastern District of Virginia and the United States Court of Appeals for the Fourth Circuit adopted a formal three-step scrutiny, thus upholding the Government’s assertion and dismissing of the case. Federal judges made extensive use of the so-called Reynolds doctrine,11 first drawn up by the Supreme Court in 1953, thereby starting with the assessment of the procedural fairness of the Government’s assertion, then evaluating the legitimacy of the assertion in the present case and concluding with a prognosis on the feasibility of the whole trial, without forcing the government to disclose evidence which it deems secret. Despite initial appearances, the State secrets privilege goes far beyond the bounds of evidentiary rules to become a more general rule aimed at safeguarding the Executive’s attribution, thus aspiring to the condition of a constitutional precept. Keeping in mind this idea of State secrets, both the District and the Appeals Court stressed the importance of the authority to assert the privilege, vested only in the Executive Branch. In particular, only the head of the Executive’s department or agency involved in the case at issue is entitled to assert the State secrets privilege before the courts. Such a procedural rule, in the opinion of the courts, is intended to guarantee the direct responsibility of the Executive Branch for the assertion and the proper weighting of the assertion itself, which should not be used without great caution. In regard to El-Masri, the privilege was claimed and asserted by the Director of the Central Intelligence Agency (the Executive agency directly involved in the case) in two separate sworn declarations, one of these classified “Judge’s Eyes Only” and the other made public. According to both of the courts, as a consequence, the assertion was correct from a procedural point of view, since the Director of the Central Intelligence Agency was indeed vested with the authority to make such an assertion, serving as the head of an Executive agency. In the second step of the analysis, federal judges addressed the concrete legitimacy of the assertion in the case at issue, by determining whether the information for which the privilege was claimed qualified as a State secret. This is a particularly delicate issue, since an effective control should be balanced with the necessity not to jeopardise the very purpose of the State secrets privilege.

10 See El-Masri v. Tenet, cit. 11 See United States v. Reynolds 345 US 1 (1953).

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In the words of the District Court, if validly asserted, the State secrets privilege permits the Government to “block discovery in a lawsuit of any information that, if disclosed, would adversely affect national security.”12 In particular, the possible harm, against which protection is sought by invocation of the privilege, includes impairment of the nation’s defence capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments. According to both the District and the Appeals Courts, judicial scrutiny should be proportionate to the private interests at stake: if the claim brought by the private parties appears to be based preponderantly on the information which the Executive seeks to keep secret, the judges should perform a closer review, possibly gaining access to that very same information in order to assess its eligibility as State secret. This assumption should not, however, mislead the interpreter in understanding the core of the judicial review on the State secrets privilege. According to the courts, the privilege is, and shall remain absolute, since it protects the Executive’s constitutional attributions. No balance between national security and other interests (even the most important) can be determined by judges, the safeguard of that primary interest being the exclusive province of the Executive Branch. Judicial review should only assess whether the Executive’s assertion can be deemed as legitimate, given the specific interest the State secrets privilege is expected to protect (i.e. whether the concealed evidence qualifies as State secret, according to the law). Once satisfied with their scrutiny, the judges should halt and uphold the Government’s assertion without any further inquiry or evaluation. In El-Masri, the courts found the claim contained in the sworn declarations of the Director of the Central Intelligence Agency legitimate, thus upholding governmental positions against the plaintiff. However, neither the District nor the Appeals Court reveal, within the published judgement, the reasoning underlying their decision. Such reasoning, as one can easily understand, was mainly based on the sworn declaration labelled “Judge’s Eyes Only,” whose content could not be made public. We are here encountering the particular case of a wholly circular public reasoning (which requires an act of faith in the courts’ reasonable assessment), still representing the only viable solution for the courts to “review the secret on the basis of secrets.” We cannot go any further in the evaluation of the constitutional legitimacy given that this solution is the only way to overcame an otherwise insuperable obstacle. 12 See Ellsberg v. Mitchell, US Court of Appeals for the District of Columbia Circuit (1986).

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Having regard to the plaintiff’s allegations, surprisingly both the courts held, along with the public declarations made by senior governmental officials, that a “clandestine rendition program” and “secret detention sites” might in fact exist. Moreover, it is also on the basis of this possibility that federal judges found the assertion of the State secrets privilege to be legitimate, since forcing the disclosure of evidence related to such clandestine operations would have impaired national security by revealing the plans, organization and procedures of intelligence agencies. In the third step of the analysis, once the fairness and legitimacy of the claim were ascertained, the judges needed to evaluate whether the action could be taken further without the risk of revealing the evidence covered by the State secrets privilege. Considering the centrality of the evidence which the cia wanted to keep secret, the District Court dismissed the plaintiff’s claim, considering the trial unfeasible. This particular point represented the main focus of the El-Masri’s appeal. According to the plaintiff, the extensive media coverage of the alleged rendition program and his case in particular, as well as the existence of numerous official reports on extraordinary renditions issued by primary international bodies such as the Council of Europe and a number of ngos (non-governmental organisations), could have allowed the court to proceed regardless of the evidence withheld by the Government of the United States. However, the Court of Appeals upheld the judgement of the District Court stressing that the judges’ evaluation was correctly based on the feasibility of a civil trial without the risk of revealing concealed evidence and not on the abstract ability of information in the public domain to support the plaintiff’s claims. Furthermore, the prosecution of the lawsuit would have forced the defendants to reveal that very same secret evidence in order to exert an effective defence. It is worth noting that pending the judgment before the Court of Appeals, the so-called “rendition program” pursued by the United States of America and its allies, became a recognised and historical truth thanks to the detailed report of the Parliamentary Assembly of the Council of Europe13 and to the partial admissions made by President George W. Bush. Nevertheless, appellate judges adopted a position of substantive deference to the Executive, completely disregarding the probative value of the wide range of information

13

Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights, “Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states” Draft report, 07-06-2006, rapporteur: Dick Marty, Doc. 10957, available at www.assembly.coe.int.

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already in the public domain. However, the Supreme Court refused to hear the case in 2007.14 B

The El-Masri Case at the European Court of Human Rights: Outlining the Right to the Truth

In July 2009, assisted by the Open Society Justice Initiative, El-Masri lodged a complaint against the Republic of Macedonia with the European Court of Human Rights, seeking compensation for the torture and other cruel, inhuman and degrading treatment he was subjected to while he was detained in Macedonia and Afghanistan.15 The court deemed as credible the version of events reported by El-Masri and, in contrast, considered completely unreliable the official position held by the Macedonian Government. In fact, El-Masri’s reports were detailed, precise, and characterised by a high degree of coherence as to times and places of his enforced disappearance. Furthermore, all the details of his statement were confirmed by national and international inquiries that were ordered to shed light on the case. In particular, the court referred to the results of two separate international inquiries led by Dick Marty and Claudio Fava for the Parliamentary Assembly of the Council of Europe16 and the European Parliament17 respectively, in addition to the parliamentary inquiry carried out by the German House of Representatives (Bundestag) and the judicial inquiry performed by the Munich Prosecutor.18 Additionally, some of the evidence provided by the Macedonian Government itself did nothing but confirm El-Masri’s statements.19 The court proceeded accordingly by considering El-Masri’s 14 15 16

Cert. denied El-Masri v. United States 552 US 947 (2007). Application 39630/09, cit. Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights, “Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states” cit. and “Secret detentions and illegal transfers of detainees involving Council of Europe member States” Draft report, 11-06-2007, rapporteur: Dick Marty, Doc. 11302, available at www.assembly.coe.int. 17 European Parliament, Temporary Committee on Use of European Countries by the cia, “Alleged use of European countries by the CIA for the transportation and illegal detention of prisoners” report, 14-02-2007, rapporteur: Claudio Fava, Doc. A6-0020/2007, available at www.europarl.europa.eu. 18 See El-Masri v. Macedonia at [159]. See also Bundestag Committee of Inquiry, “Findings of the First Investigative Committee of the Sixteenth Legislative Period,” available at http:// dipbt.bundastag.de. 19 See para. [161]–[164].

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allegations to be proved “beyond any doubt,” thus reversing the burden of proof in favour of the complainant.20 The Government of Macedonia however, was unable to refute El-Masri’s allegations by providing a convincing account of the facts; the court branded the judicial inquiry carried out by the Macedonian prosecutors as “superficial and inconclusive.” Having clarified the facts, European judges were able to make a reasonable assessment as to the complainant’s violated rights under the European Convention on Human Rights (echr). First of all, the court recognised a formal and substantive breach of Art. 3 of the Convention, which prohibits torture and inhuman treatment: physical and psychological violence – suffered by El-Masri during his detention in the motel room, at the Skopje airport and (later) in Afghanistan – should undoubtedly be considered as inhuman and prohibited and thus represent a clear case of torture. According to the court, Macedonian authorities must be held accountable for such a violation of Art. 3, given that Macedonian officers voluntarily and directly inflicted psychological damage to El-Masri during his twenty-three day custody in the motel room, under their control, after having kidnapped the victim and detained him incommunicado in conditions of complete isolation. In the judges’ opinion, Macedonian authorities bear an indirect responsibility too, for the mistreatment perpetrated by US agents, both in Skopje and Afghanistan: Macedonian officers did nothing to prevent El-Masri from being brutalised by foreign agents on Macedonian soil, under their legal jurisdiction. In fact, they consciously handed over the victim to the Central Intelligence Agency, well aware that he would have been flown to a third country to face torture and further mistreatment. From a procedural point of view, the court observed that Macedonian authorities, instead of conducting a complete and prompt investigation to ascertain the facts and punish the culprits, simply relied on a brief and incomplete report by the Ministry of Home Affairs. Given the detailed and serious complaint lodged by El-Masri with Macedonian prosecutors, they omitted to independently examine the circumstances of the case and completely excluded the victim from their investigation. In addition, the court found Macedonia responsible for violating Art. 5 of the European Convention, safeguarding the right to liberty and security of one’s person. The court pointed out that El-Masri was detained in the absence of any judicial order or warrant whatsoever, confined unusually in a motel room, without any record of his repeated questioning. What is more, Macedonian officers firmly denied the complainant the possibility of being assisted by a lawyer or contacting German consular authorities (as prescribed 20

See, in particular, para. [152]–[154], [165] and [199].

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by Art. 36.1(a) and (b) of the Vienna Convention on Consular Relations, 1963) or his wife and children in Germany. The so-called incommunicado detention, to which El-Masri was subjected, with no charge being formalised by a prosecutor, no judicial review on the legitimacy of the arrest, no legal assistance and no chance to contact the German Consulate or his family, amounts to a gross violation of the funda­ mental right to liberty, both from a procedural and from a substantive point of view. Even in this second case, the court extended the responsibility of Macedonian authorities to the whole duration of the victim’s captivity under Macedonian and American control. The reasoning, which is all but identical to the reasoning set forth in regards to Art. 3, attributes Macedonian vicarious responsibility on  the conscious acceptance of the “real risk”21 that El-Masri would have been  deprived – in a foreign country – of the rights that the Convention safeguards. Furthermore, the court found in El-Masri’s detention a violation of Art. 8 of the European Convention, which protects private and family life, since he was deprived of any contact with his wife and children during his captivity. Macedonian authorities compromised El-Masri’s dignity and his right to develop his personality by illegitimately interfering in his personal life. According to Strasbourg judges, Macedonia also frustrated, with regard to the criminal investigation cited above, the victim’s right to seek an effective judicial remedy to his sufferings in a national forum. Beyond the court’s reasoning on the specific violation, Strasbourg judges in El-Masri definitely marked a milestone in European human rights case law: for the first time, the extraordinary renditions program carried out by the United States and its allies was explicitly recognised and condemned in court. The core of the analysis is that the court resorted to the right to the truth as an autonomous legal concept, even if cautiously asserted and still derived from other rights set forth by the European Convention. This important, yet belated achievement was favoured by the position of the United Nations High Commissioner for Human Rights, whose amicus curiae memorandum expressly referred to the right as “an autonomous right triggered by gross violations, as in the case of enforced disappearances,” bringing it back to the scope of Art. 13 of the European Convention, but also to the provisions of Art. 2, 3 and 5.22 The right to the truth thus becomes the real “counter argument” to the secrecy which crimes at State level, and in particular enforced 21

About the “real risk doctrine” see Othman v. the United Kingdom, no. 8139/09, at [233], 17 January 2012. 22 See El Masri v. Macedonia, at [175].

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disappearances,23 are surrounded by. The scope of the right to the truth goes far beyond the victim’s interest to an independent and reliable judicial assessment on the facts, realising the interest of the public opinion to be aware of serious human rights violations, such as the ones perpetrated in the context of extraordinary renditions. In other words, the right to the truth, which emerged from El-Masri, is not aimed to “restore the damages” suffered by the victim and his relatives, but to achieve some kind of “historical truth” in the interest of civil society as a whole.24 On the identical profile, but from a different point of view, insisted Redress in its amicus curiae memorandum,25 viewing a public disclosure of the truth as an important part of the overall reparation is essential.26 In assessing the violation of Art. 3 of the European Convention, the court stressed “the great importance of the […] case not only for the applicant and his family, but also for other victims of similar crimes and the general public, who had the right to know what had happened.”27 Strasbourg judges blamed the behaviour of the States involved and their improper obstructions to the search for the truth,28 pointing out how the United States systematically resorted to the State secrets privilege to avoid judicial review29 (which we briefly addressed above). Such an approach, according to the court, risks undermining the rule of law.30 23 24

Of which extraordinary renditions can be deemed as a particular “sub-species”. In the Court’s words: “The right to the truth inured to the benefit of the direct victims of the violation, as well as to their relatives and to society at large. Rights holders were entitled to seek and obtain information on various issues, namely the identity of the perpetrators, the progress and results of an investigation and the circumstances and reasons for the perpetration of violations. On the other hand, the right to the truth placed comprehensive obligations on the State, including duties (1) to carry out an effective investigation; (2) to give victims and their relatives effective access to the investigative process; (3) to disclose all relevant information to the victims and the general public; and (4) to protect victims and witnesses from reprisals and threats” (emphasis added). 25 “[T]he victims, their families and society as a whole [should] know the truth regarding the violations suffered.” 26 “Besides compensation, other important components which addressed the long-term restorative aims of reparation must also be provided, including satisfaction (acknowledgment of the breach, an expression of regret or a formal apology), guarantees of nonrepetition and rehabilitation.” 27 See El-Masri v. Macedonia, at [191]. 28 See para. [46], [103] and [191]: “some of the States concerned were not interested in seeing the truth come out.” 29 See para. [63]. 30 See para. [192]: “an adequate response by the authorities in investigating allegations of serious human rights violations, as in the present case, may generally be regarded as

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In their joint concurring opinion, Judges Tulkens, Spilmann, Sicilianos and Keller further insisted on the right to the truth as an autonomous right resulting from the provision of Art. 13 of the Convention, in conjunction with Art. 3, 5 and 8.31 The right to the truth, while not regarded as an innovative legal concept by the concurring judges, nonetheless is interpreted as the result of the interaction between well-established rights, which safeguard the necessary “relationship of trust” that civil society and democratic institutions are bound by.32 The opinion explicitly recalls the Inter-American Court of Human Rights case law,33 stressing its early acknowledgement of the right to the truth (back in 1988) and, by contrast, criticising the “timid” approach of the European Court and its reluctance in overtly establishing the right to the truth as a self-standing legal figure. The whole panel did not share the same reasoning on the right to the truth: to remark the centrality of the right to a full judicial review and the ancillary nature of the “new” right to the truth, Judges Casadevall and Lopez Guerra dissented, affirming that “no separate analysis as performed by the Grand Chamber in paragraph 191 of the judgment was necessary with respect to the existence of a ‘right to the truth’ as something different from, or additional to, the requisites already established in such matters by the previous case law of the Court.” Furthermore, “[the only] required activity amounts to finding out the truth of the matter, irrespective of the relevance or importance of the particular case for the general public.” Thus, “a separate analysis of the right to the truth becomes redundant.”34 31

32

33 34

essential in maintaining public confidence in their adherence to the rule of law ad in preventing any appearance of collusion in or tolerance of unlawful acts.” “We consider, however, that the right to the truth would be more appropriately situated in the context of Article 13 of the Convention, especially where, as in the present case, it is linked to the procedural obligations under Articles 3, 5 and 8. The scale and seriousness of the human rights violations at issue, committed in the context of the secret detentions and renditions system, together with the widespread impunity observed in multiple jurisdictions in respect of such practices, give real substance to the right to an effective remedy enshrined in Article 13, which includes a right of access to relevant information about alleged violations, both for the persons concerned and for the general public.” “For society in general, the desire to ascertain the truth plays a part in strengthening confidence in public institutions and hence the rule of law. […] A more explicit acknowledgment of the right to the truth in the context of Article 13 of the Convention, far from being either innovative or superfluous, would in a sense cast renewed light on a well-established reality.” See, in particular, para. [9] of the opinion at stake. To synthesise their idea, the dissenting judges further affirmed: “as far as the right to the truth is concerned, it is the victim, and not the general public, who is entitled to this right as resulting from Article 3 of the Convention, in the light of the Court’s case-law.”

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Judges Casadevall and Lopez Guerra represented, in a certain sense, the voice of a long standing tradition of cautiousness and self-restraint in outlining “new generation” rights, other than those expressly provided by the Convention, which have characterised the court over the years. Moreover, their suspicious attitude towards the relevance of certain violations for civil society reflects the idea of a regional court focused on granting adequate compensation to individuals (or groups) rather than performing a broader (and higher) function for European society as a whole. The role traditionally played by the court, as a supranational “last resort” judge justifies its convictions to be usually limited in scope (and the El-Masri case made no exception) to the mere material compensation for suffered violations. The European Court in El-Masri undoubtedly paid a high (yet concealed) tribute to the Inter-American Court of Human Rights and its long standing case law on the right to the truth. The clear step forward made by Strasbourg judges in recognising, alongside other relevant issues, the high social value of establishing a “historical truth” (about serious breaches of human rights law) is undoubtedly to be welcomed and encouraged, as it clearly echoes the reasoning and words of the Inter-American case law. Still, one cannot disagree with Judges Tulkens, Spilmann, Sicilianos and Keller (it is worth noting that the Inter-American Court is explicitly named only in their concurring opinion) in demanding a stronger and more courageous affirmation of the right to the truth as a self-standing right, untied from procedural obligation set forth in Art. 3, 5 and 8 of the European Convention, realising the very purpose of Art. 13 in ensuring an effective remedy and full access to relevant information on alleged violations to the victim, his relatives and the general public.35 The idea which underlies Judges Casadevall and Lopez Guerra’s opinion, although understandable and rational, should be overcome by the increasing need of awareness on human rights violations, which appears to be the most effective way to hold governments accountable for their wrongdoings in democratic societies. III

First Clues of the Right to the Truth in the European Court’s Previous Case Law

As we said extensively above, the recent El-Masri case seems to represent the first tentative affirmation of the right to the truth as a “stand alone” right in the European Court of Human Rights case law. However, the reasoning in El-Masri 35

See para. [4] of the opinion at stake.

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was not altogether the result of a reworking of the principles set forth by the Inter-American Court of Human Rights. It should be noted that Strasbourg judges already had the chance to address the right and its content – although not expressly – in several previous decisions over the years, which indeed represent a logical starting point for the El-Masri case. The first clues of the emerging right in the European Court’s case law dates back to the nineties: in 1998 the court recognised, within the Kurt v. Turkey case,36 the right of relatives of kidnapped and disappeared people to be informed of the fate of their loved-ones through an effective investigation by State authorities.37 A breach of this right, in the words of the court, amounted to a serious violation of the prohibition of cruel and inhuman treatment, provided by Art. 3 of the European Convention of Human Rights, with regard to the relatives themselves. In Kurt v. Turkey the right to the truth was vaguely affirmed by resorting to a more-than-evident fictio iuris, which recalled Art. 3 of the Convention to consider the state of anxiety and apprehension of the missing person’s relatives, per se, as an illegal mistreatment. The scope of such a right, in this early judgement, did not extend beyond the victim’s family, pointing out the still strong links with those procedural remedies that the court has widely protected since the very beginning.38 In Cyprus v. Turkey, while further upholding the principles stated in Kurt,39 the court took another important step towards the recognition of a right to the truth: according to the judges, “State’s failure to perform an effective investigation aimed at clarifying the whereabouts and fate of missing persons who disappeared in life-threatening circumstances constitutes a violation of its obligation to protect the right to life under Art. 2 echr.” It should be pointed out that within the principle set forth by the court, the focus of the investigation 36 37

38

39

Kurt v. Turkey no. 24276/94 echr 1998–III. About the practice of enforce disapperances: G. Venturini, “International Law and the Offence of Enforce Disappearance” in G. Venturini, S. Bariatti (eds.), Individual Rights and International Justice, cit., 939 ff. A weak opening to the right to the truth, within this case law, can be found in Aksoy v. Turkey no. 21987/93 echr 1996–VI and Çakici v. Turkey no. 23657/94 echr 1999–IV, but also in Yasa v. Turkey no. 22495/93 echr 1998–VI; Tanrikulu v. Turkey no. 23763/94 echr 1999– IV and Kaya v. Turkey no. 22729/93 echr 1998–I, where, besides the obligation of the State to conduct an effective investigation aimed at punishing those responsible for the atrocities suffered by the victims, the court also recognises the right of the complainants (the relatives) to gain effective access to the investigatory procedure. These principles were confirmed by the Court, inter al., in Timurtas v. Turkey no. 23531/94 echr 2000–VI, Ipek v. Turkey no. 25760/94 echr 2004–II and Orhan v. Turkey no. 25656/94 echr 2002–IV.

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has switched from the punishment of those responsible for the violations, to the broader scope of “clarification.” A single word that, nevertheless has significant consequences on the whole reasoning of the court, since the first aim of the investigation is primarily concerned with “making the facts known” rather than “finding the culprits.” Even in this case, though, the court resorted to the interpretation of another right (the right to life) to develop its embryonic theory on the right to the truth. In a number of other cases, brought against Russia in relation to enforced disappearances in Chechnya,40 Strasbourg judges, confirming the principles set forth in the previous Turkish cases, held the violation of (procedural guarantees deriving from) Art. 2 of the European Convention, in respect to the State’s failure to conduct an effective investigation; the violation of Art. 3, in relation to “the nature of inhuman treatment” of the way authorities dealt with the victim’s complaints; and also of Art. 13, as to the alleged violations of Art. 2 and 3 of the Convention. A further evolution of these principles can be found in two recent cases, Janowiec and others v. Russia41 and Association 21 December 1989 v. Romania.42 The court affirmed (under Art. 3 of the Convention) the necessity of an investigation to clarify the circumstances of the violations, regardless of the temporal jurisdiction of the court itself (lacking in the first case in relation to alleged violations of the right to life during the second world war) and to the feasibility of a criminal prosecution against the offenders. Here, the court outlined the importance for civil society43 to be aware of past abuses echoing that collective dimension of the right, which will be further developed (as we saw in El-Masri).44 Even if not affirming the right to the truth as an autonomous legal principle, the court has made very clear that a right to a well-defined cognizance of the facts does exist. States have a precise duty to guarantee this right by means of an effective investigation, irrespective of the possibility to be held accountable for the violations or to prosecute the offenders. 40

41 42 43 44

See, among others, Imakayeva v. Russia no. 7615/02, 9 November 2006; Baysayeva v. Russia no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva v. Russia no. 40464/02, 10 May 2007; Astamirova and others v. Russia no. 27256/03, 29 February 2009. Janowiec and others v. Russia no. 55508/07 and 29520/09, 16 April 2012. Association 21 December 1989 v. Romania no. 33810/07 and 18817/08, 24 May 2011. See para. [142]. J.A. Sweeney, The European Court of Human Rights in the Post-Cold War Era: Universality in transition, (Routledge 2013), p. 75, affirmed that the Court “does not go quite as far as deducing a fully fledged ‘right to know’ or ‘right to truth,’ but the judgment at least used the terms and clearly understood the importance of historical truth for the victims’ families.”

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Genesis of the Right to the Truth: The Inter-American Court of Human Rights’ Case Law

As we saw earlier Judges Tulkens, Spielmann, Sicilianos and Keller, within their concurring opinion in El-Masri, criticised the choice of the court not to stress the link between the right to the truth and Art. 13 of the Convention, overtly citing the InterAmerican Court’s well established case law in relation to that right.45 This specific reference is anything but accidental, since the Inter-American Court of Human Rights can be regarded as the first regional court to expressly acknowledge the right to the truth, with particular regard to enforced disappearance. We are facing here, a clear example of “transjudicial communication”46 between two supranational courts (so-called “horizontal communication”), leading to a process of “intellectual cross-fertilization,” with a higher protection of human rights as its final aim. Growing demand for protection of this particular right first emerged in the context of Latin American countries during the eighties. After the sometimes difficult transition from authoritarian regimes to democracies, these countries had to confront widespread human rights violations that had occurred in the past, often covered by amnesty laws favoring impunity for perpetrators. The Inter-American Commission took charge of these instances, asking the InterAmerican Court to grant a wide and strong protection to the right to the truth, which the court gradually afforded. At the very beginning, the reference to the right was not explicit. The first judgment on this matter, Velásquez-Rodríguez v. Honduras,47 entailed the right as the duty of the State to investigate every situation involving a violation of the rights protected by the Convention. In the court’s words, the investigation “must be undertaken in a serious manner,” in an impartial way, and in cases of enforced disappearance, must continue “as long as there is uncertainty about the fate of the person who has disappeared,” for “the State is obliged to use the means at its disposal to inform the relatives of the fate of the victims and, if they have been killed, the location of their remains.” The court subsequently upheld this position through a number of early judgments,48 where the right to 45 46

47 48

The reference is to Velásquez Rodríguez v. Honduras (29 July 1988) and Contreras et al. v. El Salvador (31 August 2011). This concept was first introduced by Anne-Marie Slaughter in the early 1990s. See, e.g., A. Slaughter, “A Typology of Transjudicial Communication” in T.M. Franck, G.H. Fox (eds.), International Law Decisions in National Courts (Brill 1998), p. 38. Merits. Judgment of July 29, 1988. Series C No. 4. See, e.g., Blake v. Guatemala, Merits. Judgment of January 24, 1998. Series C No. 36; Street Children (Villagran-Morales et al.) v. Guatemala, Merits. Judgment of November 19, 1999.

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the truth maintains the features of a procedural right for the victims and their families.49 The right to the truth was first expressly recognised in Bámaca-Velásquez v. Guatemala,50 rightly deemed as a leading case in the court’s case law. Quoting the court, “the right to the truth is subsumed in the right of the victim or his next of kin to obtain clarification of the facts relating to the violations and the corresponding responsibilities from the competent State organs, through the investigation and prosecution established in Articles 8 and 25 of the Convention.” In addition, similarly to what the European Court of Human Rights would do years later, the court stated that “[t]he continued denial of the truth about the fate of a disappeared person is a form of cruel, inhuman and degrading treatment for the close family,”51 in violation of Art. 5 of the American Convention of Human Rights (achr). In some recent judgments, the court also linked the right to the truth to Art. 13 of the American Convention, and the right to seek and receive information.52 At the same time, the right to the truth has been progressively specific in its scope: it has to be guaranteed “within a reasonable time”53 and the 49 50 51

52

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Series C No. 63; Durand and Ugarte v. Peru. Reparations and Costs. Judgment of December 3, 2001. Series C No. 89. L.G. Torreblanca Gonzales, “El Derecho A La Verdad En El Ámbito Iberoamericano” (2012) 3 Ius Humani Revista de Derecho 15. Merits. Judgment of November 25, 2000. Series C No.70. Trujillo-Oroza v. Bolivia. Reparations and Costs. Judgment of February 27, 2002. Series C No. 92, at [114]–[115], the Court cites his prior decisions Bámaca Velásquez case, cit., at [160] and [165]; Blake case. Reparations, cit., at [57]; and Blake case, cit., at [114] and [116]; but also Kurt v. Turkey, cit., at [131]. Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, Objections, Merits, Reparations and Costs. Judgment of November 24, 2010. Series C No. 219, at [200] and [201]. It is also significant the final declaration of the court in the following part: “[t]he State is responsible for the violation of the right to freedom of thought and expression enshrined in Article 13 of the American Convention on Human Rights, in relation to Articles 1(1), 8(1), and 25 of the same instrument, for the harm to the right to seek and receive information, as well as to the right to know the truth.” See, e.g., Mapiripán Massacre v. Colombia. Merits, Reparations and Costs. Judgment of September 15, 2005. Series C No. 134, at [216]–[217]. The specification is contained at [217]: “[t]he Court has established, regarding the principle of reasonable term set forth in Article 8(1) of the American Convention, that it is necessary to take into account three aspects to decide whether the time taken by a proceeding is reasonable: a) complexity of the matter, b) procedural activity of the interested party, and c) conduct of the judicial authorities.”

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investigations regarding extrajudicial executions have to be conducted following certain international “guiding principles.”54 However, although the pressure of the American Commission for the recognition as an autonomous right, the right to the truth is still not a completely self-standing right,55 but it keeps being “subsumed in [and derived from] the comprehensive concept of the right to a fair trial.”56 However, therein – in our opinion – lies the core of such a right, since Bámaca-Velásquez, the most distinctive profile of the right to the truth can be identified in its collective dimension, consisting in the right of civil society as a whole to know the truth about past events, involving serious and systematic violations of human rights.57 Under this particular profile, “the procedural determination of the most complete historical record possible”58 is a fundamental step to achieve full satisfaction of the right at stake.

54

55 56

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Zambrano Vélez et al. v. Ecuador. Merits, Reparations and Costs. Judgment of July 4, 2007. Series C No. 166, at [121]. According to the principles set in United Nations Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions: “The State authorities that conduct an investigation must, inter alia, (a) identify the victim; (b) recover and preserve the probative material related to the death, in order to facilitate any investigation; (c) identify possible witnesses and obtain their statements in relation to the death under investigation; (d) determine the cause, method, place and moment of the death, as well as any pattern or practice that could have caused the death, and (e) distinguish between natural death, accidental death, suicide and murder. In addition, it is essential to search exhaustively the scene of the crime and autopsies and analyses of human remains must be carried out rigorously by competent professionals, using the most appropriate procedures.” The Court expresses this concept clearly in Blanco-Romero et al. v. Venezuela. Merits, Reparations and Costs. Judgment of November 28, 2005. Series C No. 138, at [62]. L. Bugorgue-Larsen, “The right to the truth” in L. Burgorgue-Larsen, A. Ubeda de Torres, The Inter-American Court of Human Rights: Case Law and Commentary (Oxford 2011), p. 704. As well expressed by separate concurring opinion of Judge Sergio García Ramírez on the judgment on merits of the Bámaca Velásquez case, the right to truth “covers a legitimate demand of society to know what has happened, generically or specifically, during a certain period of collective history, usually a stage dominated by authoritarianism, when the channels of knowledge, information and reaction characteristic of democracy are not operating adequately or sufficiently.” Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011. Series C No. 221, at [192]. The Court then added: “[t]his determination must include a description of the patterns of joint action and should identify all those who participated in various ways in the violations and their corresponding responsibilities.”

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The Relationship between Truth Commissions and the Inter-American Court of Human Rights

Truth commissions59 without doubt represent a peculiar response, which can only be found in the Inter-American system of human rights safeguard, to the substantive need of protection of the right to the truth in its “collective dimension.” The emergence of this particular need is closely linked to the context of post-conflict transitions, where the reconstruction of the truth is an essential step to reach a wide reconciliation, thus avoiding further violence. In particular, some scholars60 underline that the governments’ choice to establish truth commissions, rather than relying on courts to punish the culprits, is the most likely outcome “when the relative strength of the demands from the public” for truth and justice “and from the outgoing regime” for amnesty and impunity “is roughly equal”; meanwhile, facing weaker outgoing regimes, a trial in court would be the first option. Beyond the differences61 existing among the many kind of truth commissions, one of the most distinctive common elements is the scope of their mandate, which is aimed “to elucidate the nature, causes and extent of human rights violations, as well as the underlying factors, antecedents and the context that led to such violations, together with identifying those responsible.”62 Considering the Inter-American Court of Human Rights’ case law, it is worth noting the deep connection between the IACtHR’s decisions and the reports of truth commissions. Although in those first judgments, where the right to the truth initially emerged, there is no reference to the work of truth commissions. At a later stage an increasingly central role and a higher dignity was assigned to the work performed by these bodies in the reasoning underlying court judgments.

59

The report of the Secretary-General on the rule of law and transitional justice in conflict an post-conflict societies (S/2004/616, August 23, 2004, at [50]) defines them as: “official, temporary, non judicial fact-finding bodies that investigate a pattern of abuses of human rights or humanitarian law committed over a number of years. These bodies take a victim-centred approach and conclude their work with a final report of findings of fact and recommendations.” 60 E. Skaar, “Truth Commissions, Trials: Or Nothing? Policy Options in Democratic Transitions” (1999) 20 Third World Quarterly 1109. 61 The differences regard the period of operation, the background, the specific mandate, the composition and structure, the findings. 62 Y. Naqvi, “The Right to the Truth in International Law: Fact or Fiction” (2006) IRRC 262.

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In many cases, the Inter-American Court “used” truth commissions’ reports to reconstruct the historical truth of the past events thereby acknowledging their full probative value. In the case of Cantoral-Huamaní and García-Santa Cruz v. Peru,63 the court laid down an interesting defense of the probative value of the conclusions reached by the Peruvian Truth and Reconciliation Commission (Comisión de la Verdad y Reconciliación, cvr), questioned by the respondent State.64 This judgment clearly identifies the key element of the relationship between truth commissions and the judiciary: the condition for Commissions’ reports to enjoy probative value is the lack of jurisdictional authority which characterises these particular bodies. In many judgments, the Inter-American Court underlined the complementarity relationship between “historical truth,” included in the reports of truth commissions, and “the judicial truth”65 by stating that “in compliance with its obligation to guarantee the right to know the truth, the State may establish truth commissions, which contribute to the creation and preservation of the historical memory, the elucidation of the facts, and the determination of the 63

64

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Preliminary Objection, Merits, Reparations and Costs. Judgment of July 10, 2007. Series C No. 160. It is also interesting the concurring separate opinion of Judge Álvaro Castellanos Howell in Tiu Tojín v. Guatemala, in which the judge pays attention to the evidentiary value of the reports of the Historic Explanation Commission (Guatemala, Memories of Silence). The points analysed are fundamentally four: “CVR is an official agency created by the State that produced its report in the course of a specific mandate entrusted to it by the State itself” (para. [89]); Article 3 of Decree No. 065-2001-PCM, which regulated the activities of the cvr, established explicitly that this Commission “does not have jurisdictional authority; consequently, it does not substitute the functions of the Judiciary and the Attorney General’s Office” (para. [90]); “the Court observes that the Final Report of the CVR was presented to the different powers of the State which acknowledged its conclusions and recommendations and acted accordingly, adopting policies that reflect the significance accorded to this institutional document” (para. [91]); “The Court has given special weight to the CVR report as relevant evidence in the determination of the acts and international responsibility of the Peruvian State in several cases that have been submitted to its consideration.” (para. [92]). In many decisions the iacthr reiterates this principle. Inter alia, Almonacid-Arellano et al. v. Chile. Preliminary Objection, Merits, Reparations and Costs. Judgment of September 26, 2006. Series C No. 154; Anzualdo Castro v. Peru, Preliminary Objection, Merits, Reparations and Costs. Judgment of September 22, 2009. Series C No. 202; La Cantuta v. Peru. Merits, Reparations and Costs. Judgment of November 29, 2006. Series C No. 162; “Las Dos Erres” Massacre v. Guatemala. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 24, 2009. Series C No. 211.

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institutional, social and political responsibilities during certain historical periods of a society. Nevertheless, this does not complete or substitute for the State’s obligation to establish the truth through judicial proceedings; hence, the State had the obligation to open and expedite criminal investigations to determine the corresponding responsibilities.”66 In these cases, the court resorted to the Commission’s report to outline the facts brought to its attention; nevertheless, it precisely sets the boundaries between the role of Commissions and judicial proceedings. The reparatory measures adopted by the court, which ordered the State to immediately investigate the facts, identify, prosecute, and sanction those responsible, is highly significant in this respect. However, in other cases, the judgments of the Inter-American Court have represented the ground for the subsequent work of truth commissions:67 they shed light on past events, bringing out the truth, regardless of pre-existing court judgments on the same facts; furthermore, they made it possible to reopen judicial proceeding before national courts. Coming to the end of this section, it is appropriate to cite two particular cases in which the Inter-American Court not unable to rely on the work of the truth commission: the first because that very same Commission was established shortly before the beginning of the trial; the second because the Commission had not been established yet. Nonetheless, the court supported the Commission’s ongoing search for “historical truth,” while stressing the importance of a parallel “judicial truth.” This happened in Zambrano Vélez et al. v. Ecuador, where the court, few months after the establishment of the Truth Commission to Impede Impunity (May 3, 2007), affirmed to view “favorably the intention of the State to clarify the said facts which can amount to violations of human rights through the establishment of a truth commission by presidential decree.”68 Even more significant is the case of Gomes Lund v.

66 67

68

Massacres of El Mozote and nearby places v. El Salvador. Merits, Reparations and Costs. Judgment of October 25, 2012. Series C No. 252, at [298]. G. Citroni, “La Commissione della Verità e Riconciliazione peruviana e l’accesso alla giustizia per le vittime del conflitto interno armato ed i loro famigliari” in F. Francioni, M. Gestri, N. Ronzitti, & T. Scovazzi (eds.), Accesso alla giustizia dell’individuo nel diritto internazionale e dell’Unione Europea (Giuffrè 2008). The author quotes the cases of Castillo Paez (Judgment of November 3, 1997. Series C No. 34), Neira Alegria (Reparations and Costs. Judgment of September 19, 1996. Series C No. 29), Barrios Altos (Merits. Judgment of March 14, 2001. Series C No. 237), Durand y Ugarte (Merits. Judgment of August 16, 2000. Series C No. 68). Zambrano Vélez et al. v. Ecuador, cit., at [129].

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Brazil.69 In this case, the court “value[d] the initiative of creating a National Truth Commission and urge[d] the State to implement it, using criteria of independence, competence, and transparency in the selection of its members and with the resources and attributions that permit it to effectively comply with its mandate.” The court further specified that the future establishment of a truth commission could not be considered a substitute for the criminal legal proceeding, but recognised the high value of truth commissions in order to provide a response to civil society’s demand for knowledge. VI

The Inter-American Court of Human Rights and the European Court of Human Rights: A Comparison

When comparing the European Court’s and the Inter-American Court’s approaches to the right to the truth, some well-defined differences can be pointed out. Firstly, while in the Inter-American experience, although subsuming it within “other” rights, the right to the truth has been acknowledged expressis verbis. In the European experience (even if guaranteed in a substantive way), we find a weaker affirmation of such a right as an autonomous legal figure. As to the legal basis which the courts resort to, in the Inter-American system, the right to the truth is tied with the right to a fair trial (Art. 8 and 25 achr, 1 achr); in Europe, by contrast, the very same right is protected in some cases under the procedural side of the right to life (Art. 2 echr),70 in others under the prohibition of torture and inhuman treatment (Art. 3 echr). The European Court never resorted to the violation of the right to a fair trial (Art. 6 echr),71 but came to affirm72 the violation of Art. 13 echr (which ensures the right to an effective remedy), blaming the lack of a “thorough and effective investigation capable of leading to the identification and punishment of those responsible 69 70 71

72

Preliminary objections, merits, reparations and costs. Judgment of November 24, 2010, Series C, No. 219 at [392]. L. Pisciotta, “La tutela dei diritti umani in tempo di conflitti armati non internazionali: la giurisprudenza di due corti a confronto” (2006) Riv. dir. internaz. 136. G. Citroni, “Corte Europea e Corte Interamericana: due corti regionali dei diritti umani a confronto” in T. Scovazzi, I. Papanicolopulu, S. Urbinati (eds.) I diritti umani di fronte al giudice internazionale: atti della giornata di Studio in memoria di Carlo Russo (Giuffrè 2009), p. 66. See e.g. Yaşa v. Turkey, cit., at [114]; Tanrıkulu v. Turkey, cit., at [117]; Kaya v. Turkey, cit., at [107].

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and including effective access for the relatives to the investigatory procedure.”73 A feature, common to both courts appears to be the idea of “lack of information about the fate of a disappeared person,” deemed as a violation of the prohibition of torture and cruel treatment (Art. 5 achr and Art. 3 echr).74 Although the Inter-American judges used expressions such as “the continued denial of the truth about the fate of a disappeared person,” while European judges spoke of “the silence of the authorities of the respondent State in the face of the real concerns of the relatives of the missing persons,”75 the result in terms of human rights appears to be the same. However, taking a closer look at the European and Inter-American human rights systems, significant differences76 can be highlighted, such as the burden of proof and reparation measures, which suggest that the Inter-American system is somewhat more effective.77 As to the burden of proof, since Velasquez-Roudriguez the Inter-American Court has been stressing the peculiarities of enforced disappearances, “characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim,”78 and has affirmed that “silence of the accused or elusive or ambiguous answers on its part may be interpreted as an 73

74 75 76

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D. Groome, “The Right to Truth in the Fight Against Impunity” (2011) 29 Berkeley J. Int’l  L.182. The author makes a comparison between case of Blake v. Guatemala and Cyprus v. Turkey, saying that “In cases where families have sought judicial recourse, courts have consistently found that the failure to meaningfully investigate a disappearance constituted a violation with respect to next of kin of the right to a fair trial and the right to judicial protection enshrined in Articles 8(1) and 25(1) of the achr in relation to the general obligation to respect and guarantee the rights embodied in Article 1(1) thereof.” The ECtHR came to a similar conclusion with respect to Article 13 of the echr – the parallel provision to Articles 8 and 25 of the achr. In Cyprus, the Court concluded that Turkey’s failure to provide Greek-Cypriots with a remedy to contest interference with their rights under Article 8 of the echr and Article1 of Protocol I constituted a violation of Article 13.” See III above. Cyprus v. Turkey no. 25781/94 ECHR 2001–IV, at [157]. See also Taş v. Turkey no. 2396/94, at [79]–[80], 23 October 1999. The first difference, which is not relevant in terms of effectiveness of the system, is the nature of the applicant. While in the echr system the applicant is usually an individual person; in the achr, the only legitimate method to file an application before the Court is the Inter-American Commission on human rights. G. Citroni, “Corte Europea e Corte Interamericana: due corti regionali dei diritti umani a confronto,” cit., p. 59 ff. Velasquez Roudriguez v. Honduras, cit., at [131].

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acknowledgment of the truth of the [Commission’s] allegations, so long as the contrary is not indicated by the record or is not compelled as a matter of law.”79 The court has established a set of presumptions in favour of the victims, thus reversing the burden of proof and requiring States to thoroughly rebut every allegation. In the European experience, conversely, the burden of proof weighs on the victims: the families of disappeared persons claiming the violation of Art. 2 and 3 have to give evidence, beyond any reasonable doubt, of the violence and mistreatment suffered by their relatives. Nonetheless, in several recent judgments (as happened in El-Masri), scholars80 have observed a feint opening of the court in favour of some presumptions, useful to declare the substantive violation of Art. 2 of the Convention, in cases involving systematic practices of enforced disappearance. As regards reparation, the Inter-American Court is able to provide a great variety of measures, while the European Court (as we outlined above) appears traditionally bound to the mere restoration of damages suffered in terms of economic compensation. Since the case of Castillo Paez v. Peru,81 the Inter-American Court, beyond the payment of compensation, has ordered the State to investigate past events in order to identify and punish those responsible. What is more, in the later case law, this court afforded the victims’ relatives specific individual measures, ordering the State to localise, identify and return the bodies of disappeared persons to their families,82 or provide them with medical and psychological assistance.83 Since Bámaca-Velásquez,84 the court has also ordered the publication of the results of the investigations and certain parts of its judgments in the Official Journal and newspapers. Additionally, the court has gradually started resorting to other remedies, aimed at providing a broader reparation beyond the specific case. Further measures include85 the passing of legislation to adapt domestic legal systems

79 80 81 82 83 84 85

Velasquez Roudriguez v. Honduras, cit., at [138]. G. Citroni, “Corte Europea e Corte Interamericana: due corti regionali dei diritti umani a confronto,” cit., p. 65. Reparations and Costs. Judgment of November 27, 1998. Series C No. 43. The 19 Merchants v. Colombia. Merits, Reparations and Costs. Judgment of July 5, 2004. Serrano-Cruz Sisters v. El Salvador. Merits, Reparations and Costs. Judgment of March 1, 2005. Series C No. 120; the 19 Merchants v. Colombia. Merits, Reparations and Costs. Reparations and Costs. Judgment of February 22, 2002. The following list is not intended to be complete, but for example purpose only.

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to international human rights standards and humanitarian law,86 the erection of monuments in memory of the victims,87 the organization of public ceremonies to acknowledge internationally the responsibility of the State,88 the implementation of permanent educational programs on human rights addressed to members of government (above all, to the armed forces),89 the establishment of development programs, programs of physical, mental and psychosocial care for the communities affected by the violations,90 the production of documentaries giving account of the violence suffered by the victims,91 and the funding of research projects and the systematic publication of all the information regarding human rights violations which occurred during military regimes.92 The collective nature of the right to the truth also emerges in relation to reparation measures: the court wants civil society as a whole to benefit from its judgments in terms of redress for past human right violations. In the European system, although the applicants’ requests for investigation as a measure of reparation93 and the dissenting opinion of some judges,94 the

86

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89

90 91 92 93 94

See e.g. Bámaca-Velásquez. Reparations and Costs, cit.; Anzualdo Castro, cit.; Blanco-Romero et al. v. Venezuela. Merits, Reparations and Costs. Judgment of November 28, 2005. Series C No. 138.; Goiburú et al. v. Paraguay. Merits, Reparations and Costs. Judgment of September 22, 2006. Series C No. 153; Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, cit. See e.g. The 19 Merchants v. Colombia, cit.; Anzualdo Castro, cit.; Gelman v. Uruguay, cit.; Goiburú et al. v. Paraguay, cit.; La Cantuta v. Peru, cit. See e.g. Bámaca-Velásquez. Reparations and Costs, cit.; The 19 Merchants v. Colombia. Merits, Reparations and Costs, cit.; Anzualdo Castro, cit.; Cantoral-Huamaní and GarcíaSanta Cruz v. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of July 10, 2007. Series C No. 167; Gelman v. Uruguay, cit.; Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, cit. See e.g. Anzualdo Castro, cit.; Blanco-Romero, cit.; Cantoral-Huamaní and García-Santa Cruz v. Peru, cit.; Massacres of El Mozote and nearby places, cit.; Gelman v. Uruguay, cit.; Goiburú et al. v. Paraguay, cit.; Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, cit.; La Cantuta v. Peru, cit. See e.g. Massacres of El Mozote and nearby places, cit. See e.g. Massacres of El Mozote and nearby places, cit. Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, cit. See e.g. Aksoy v. Turkey, cit., at [98]; Çakıcı v. Turkey, cit, at [111]. Judge Spielmann in judgment Medova v. Russia, 15 January 2009, concerning a case of enforced disappearance in Chechnya, affirms: “Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate” believing that in a case of enforced disappearance “It would have been preferable to grant the applicant’s request” for an investigation.

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court has always refused to afford this kind of measure. European rules of procedure95 appear96 stricter than the Inter-American rules,97 and the European Court has always held that it lacks the power to order measures other than financial compensation, considering that this power is vested in the Committee of Ministers of the Council of Europe or in the single States. In conclusion, it is clear that the Inter-American system of human rights protection is by far more effective in terms of compensation since it allows the victims to enjoy official recognition of their right to the truth, thanks to probative presumptions, and to obtain both monetary and non-monetary reparatory measures, extending the latter to civil society at large. VII

Concluding Remarks

At the very end of our unusual trip “searching for the right to the truth” from the Americas to the heart of Europe, we should draw some conclusions from the analysis we have undertaken. Once again, as we pointed out at the outset, in the post 9/11 era European governments have failed in leading the way towards higher international standards in the safeguard of fundamental human rights, and such a failure cannot be taken lightly. Those who spent years exporting their “revealed truths” on freedom and democracy around the world should perhaps take into consideration that these “truths” are not as innovative and advanced as they are supposed to be. While the achievements of the European Court of Human Rights in El-Masri should indeed be welcomed and well regarded, the general interest that this case provoked in the European media is partly unjustified. As we were able to understand, retracing the reasoning of the European Court in El-Masri focusing on the right to the truth, the assertions of Strasbourg judges are still “timid” 95 96

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Art. 41 echr. T.M. Antkowiak, “Truth As Right And Remedy In International Human Rights Experience” (2002) 23 in Mich. J. Int’l L. 977, said that: “Part of the explanation is found in the IACHR’s expansive reparations provision, Article 63.1 of the American Convention, which grants it much more latitude than that permitted its European counterpart.” Article 63(1) of the American Convention provides that: “[i]f the Court finds that there has been a violation of a right or freedom protected by [this] Convention, the Court shall rule that [the] party harmed be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the party harmed.”

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and overcautious in outlining such a right as an autonomous legal concept. In their concurring opinion, which we recalled several times above, Judges Tulkens, Spilmann, Sicilianos and Keller correctly highlighted that there is still a gap between the long-standing doctrine of the Inter-American Court on the right to the truth and the principles set forth by the European Court, urging the latter to take some more steps forward in recognising the right to the truth as a self-standing right within the broader area of “effective remedies,” under Art. 13 of the European Convention. It is, in particular, the collective dimension of the right that has a greater importance than the oblique mention made by the European Court in El-Masri. Indeed, it deserves to be further analysed and clearly affirmed as a general principle. As we noted above, the position of Judges Casadevall and Lopez Guerra in favour of maintaining the strictly individual nature of the interests at stake before the court, clashes with the emerging need for widespread democratic accountability of western governments involved (since 9/11) in the alarming reviviscence of illegal and hateful practices, in spite of their publicly affirmed good intentions. By observing the evolution of the right to the truth in the Inter-American and European experiences, we can undoubtedly maintain that the InterAmerican Court has gone much further in protecting such a right. Moreover, while the European Court has not always been coherent in the classification of the right, recalling from time to time Art. 2 or 3 of the Convention, up to Art. 5 and 13 in El-Masri, the Inter-American Court has almost always resorted to the wide area of fair trial obligations as the main legal foundations. As we contended before, in El-Masri, the European Court pays a noticeable tribute to the Inter-American Court, thereby showing that it has been influenced – a rare occurrence in its quite long history – by a legal doctrine coming from across the Atlantic. The innovative and reverse path followed by the right to the truth could mark a new era of positive dialogue and mutual influence between courts, “competing” with each other to afford human rights the highest standards of protection.

PART three Constitutional Position of Top Courts

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Chapter nine

The Independence of the Judiciary in Belgium1 Marc Bossuyt 2,* In the present contribution, I would like to refer to some recent developments in Belgium which have some relevance for the issue of the independence of the judiciary. I will first refer to recent attempts of recusal in cases in which judges of the highest courts of the land were involved: the Constitutional Court and the Court of Cassation. I will then say a few words about a recent very high profile case (the Fortis case) which raised doubts about the respect of the government in Belgium for independence of the judiciary. First some preliminary observations. The Belgian Constitution of 1831 does not contain any explicit reference to the independence of the judiciary. The Court of Cassation, however, has qualified the independence of the 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.” The same article creates also an autonomous High Council of Justice which exercises important functions in the recruitment and the promotion of judges as well as in the evaluation of the performance of the courts and tribunals.3 The High Council has made the judicial selection process more objective and it has proven to be “a reliable and skilful advisor to policymakers.” However, as far as the external control over the justice system is concerned, “there is still room for improvement.”4 Other elements of the independence of the judiciary relate to the selection, the appointment and the promotion of judges, their tenure, remuneration, social security, * President Marc Bossuyt, LL.D. (Ghent); Dr sc. pol. (Geneva); Dr h.c. (Hasselt); President Constitutional Court Belgium; Emeritus Professor (Antwerp); Honorary Commissioner General for Refugees; former Chairperson of the UN-Commission and UN-Sub-Commission on Human Rights; Member of the Committee on the Elimination of Racial Discrimination. 1 Key note lecture at the 9th International Conference on Judicial Independence, Ghent, 18 October 2012. 2 The views expressed in this contribution engage only its author. 3 ALLEMEERSCH, B., ALEN, A. & DALLE, B., “Judicial Independence in Belgium,” in: SeibertFohr A. (Ed), Judicial Independence in Transition. Strengthening the Rule of Law in the OSCE Region, Heidelberg, Springer, 2011, pp. 307–357, at pp. 308 and 310. 4 Ibid., p. 315.

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retirement and incompatibilities, as well as to the way of assignment of cases and the possibility of recusal.5 I

The Recusal of Judges of the Highest Courts in Belgium

Article 828 of the Judicial Code provides the recusal of individual judges on the main ground of “legitimate suspicion of bias.” Other grounds for recusal are: personal interest in the dispute, family connections, financial relations with one of the parties, hostility, being involved in another litigation relating to the issue or to the parties, serving as the custodian or liquidator for one of the parties, having advised or published on a given dispute, having been involved as a judge in either the first instance and the appellate phase of the procedure, having been a witness in respect of the issue concerned and having received gifts or payments from one of the parties.6 A

The Constitutional Court

The Constitutional Court had to deal with a request of recusal of one or more of its judges for the first time with its judgment n°. 32 of 29 January 1987. The request concerned three judges and was based on the fact that all three had, when they were members of the Flemish Parliament, participated in the deliberation and voting on the decree which was the subject of the prejudicial question submitted to the Court. Indeed, the Belgian Constitutional Court is composed of twelve judges, six of them are former politicians. The Court, however, observed that they had not been involved in any way in the concrete dispute at the basis of the question submitted to the Court. According to the Court, having participated as a member of Parliament in the decision making with respect to a particular decree and to have to judge in the capacity of a constitutional judge, albeit as a former politician, on the compatibility of that decree with the rules of competence of the respective legislative assemblies of the federal State, is not the same as intervening twice in a different capacity as a magistrate in the treatment of the same case. A similar request of recusal of a judge who had, when he was a member of the Senate, rejected amendments on the articles of a law which are the subject of a prejudicial question submitted to the Court, was rejected by the Court in its judgments 35/94 and 36/94 of 10 May 1994. The Court recalled that the 5 Ibid., pp. 316–325. 6 Ibid., p. 326.

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standpoint of a representative of the Nation with respect to legislative acts is not comparable with the one of a judge specialised in the legal appreciation of the constitutionality of such acts. His participation in the decision making process of that law, along with the majority to which his political group did belong, is, according to Court, not a sufficient objective justification for the concern of the applicants with respect to his ability to verify in an impartial manner the constitutionality of that law. In the framework of a prejudicial question, submitted to the Court by the highest administrative court (the “Conseil d’Etat”), on the constitutionality of the law on the financing of political parties, two associations, acting on behalf of an extreme right wing political party condemned by the Court of Appeal of Ghent for expressing racist opinions, requested the recusal of five judges of the Constitutional Court. In its judgment n° 157/2009 of 13 October 2009, the Court, referring extensively to several judgments7 of the European Court of Human Rights, rejected that request. The Court stressed that the consequence of the application of the grounds of recusal may not be that the Court, a unique jurisdiction, would become unable to function. The Court also stressed that it is composed in an equilibrated manner (linguistically, politically and professionally) and that those equilibriums are a guarantee of its impartiality. The Court considers that sympathy for – or even membership of a political party or associations not being political parties – does not imply automatically that the person concerned agrees with every answer that party or association may give on the multitude of questions raised in society and that, in particular, membership of a Masonic loge does not raise justified doubts on the objective impartiality of a judge, since his oath as a magistrate takes precedence over whatever social obligation. In its most recent judgment n° 155/2011 of 13 October 2011 on this matter, the Court rejected the request of recusal of a judge based on the existence of his links with the lawyers of parties before the Court in the framework of his academic activities. The Court recalls that judges may be authorized to exercise an academic activity and that the academic freedom, which occupies a prominent place at university and is an aspect of the freedom of expression, requires 7 Piersack (1 October 1982) and Debled (22 September 1994) v. Belgium, Campbell and Fell (28 June 1984), Salaman (dec. 22 June 2004) and Grieves (16 December 2003) v. the United Kingdom, Sramek v. Austria (GC, 22 October 1984), Padovani (26 February 1993) and M.D.U. (dec. 28 January 2003) v. Italy, Thoman (10 June 1996) and Wettstein (21 December 2000) v. Switzerland, Morel v. France (6 June 2000), Sofianopoulos (dec. 12 December 2002) v. Greece, Fillipini v. San Marino (dec. 26 August 2003), Pabla Ky v. Finland (22 June 2004), and AB Kurt Kellermann v. Sweden (26 October 2004).

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ample freedom to express their opinion. Relations of an academic nature with colleagues in a university which are lawyers of one or more parties before the Court are not sufficient to provide an objective justification for the concerns expressed by the applicants. B

The Court of Cassation

Very recently, the Court of Cassation also has been confronted with a request of recusal of all, or at least some, of the magistrates of that Court and subsidiary of Mr E. G., the highest magistrate of that Court. The request was based on the fact that those magistrates participate in the annual religious service (Te Deum) in a catholic church to celebrate the National Day, that they are received in the church by the archbishop and show respect for him by standing  and sitting on his indications, and that the archbishop, who is grandchancellor of the Catholic University of Leuven, has a relationship of authority with respect to the magistrates of the Court affiliated to that university. In its judgment8 of 8 May 2012, the Court of Cassation rejected that request. As far as the request is directed against all magistrates of the Court, the Court considers that it is a request to withdraw the case from the Court. This possibility is not provided for in any legal provision as it would render the treatment of the case impossible and would infringe upon the fundamental rights of other parties. According to the Court, the assistance at the annual Te Deum is a matter of protocol and does not raise objectively the appearance that the members of the Court could not any longer decide in an impartial and independent manner. Referring to Article 151 of the Constitution, the Court recalls that magistrates are not subject to any hierarchical authority in the exercise of their judicial function. As far as Mr E. G. is concerned, the Court observes that the philosophical persuasion of a magistrate does not in itself create an appearance of partiality and that the fact that he is or not a member of a philosophical association or participates in the activities of such an association does not raise a legitimate suspicion. II

The Independence of the Judiciary in the Fortis Case

The judicial saga of the Fortis case, concerning the take over of what was left of the biggest bank of the country by the French Bank bnp Paribas, gained political prominence on 17 December 2008, when the Prime Minister wrote a letter 8 P.12.0730.N/1.

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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, did raise 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.9 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 enquiry10 and by the High Council of Justice.11 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 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 9

10

11

The First President of the Court of Cassation stated in his letter that there were indications that everything had been done to prevent the pronouncement of a judgment by the Court of Appeal of Brussels that would reform the judgment of the Tribunal of Commerce; see MEERSSCHAUT, F., “Als de rook om ons hoofd (nog niet helemaal) is verdwenen – de scheiding der machten in de storm van de Fortis-zaak)” in ALEN, A. & SOTTIAUX, S., Leuvense Staatsrechtelijke Standpunten 2, Bruges, die Keure, 2010, n°. 48, pp. 105–191; VUYE, H., “Het beraad in het kader van de democratie,” FLEERACKERS, Fr. & VAN RANSBEECK, R. (ed.), Het Beraad en de Rechter, Brussels, Larcier, 2011, pp. 41–70. Rapport de l’enquête parlementaire sur le respect de la Constitution, en particulier le principe de la séparation des pouvoirs, et des lois dans le cadre des procédures judiciaires entamées à l’encontre de la sa Fortis, Doc. parl. Chambre 2008–2009, no. 52-1711/007. Conseil Supérieur de la Justice, Rapport sur l’enquête particulière au fonctionnement de l’ordre judiciaire à l’occasion de l’affaire Fortis, General Assembly of 16 December 2009, www.csj.be/doc/reports/SCJ_Fortis-16-12-09.pdf.

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had, in first instance or at the appeals level, to judge the regularity of the take over. Some contacts between magistrates-collaborators of members of government and other magistrates of the public prosecution were considered in those enquiries to be “problematic,”12 but nothing more than that. Whatever may have been, those contacts have not influenced the result of the proceedings and did not put in jeopardy the independence of the judiciary. Indeed, the member of the public prosecution at first instance had not been deterred – by the contacts he had with the magistrate-collaborator of the Prime Minister – to express an advisory opinion which was unfavorable to the position of the Government, but that opinion was not followed by the judge of the Tribunal of Commerce. He affirmed that he had been able to express his opinion in a fully independent manner.13 The intervention of the Attorney-general at the Court of Appeal, questioning the regularity of the deliberations on this case by the Court of Appeal, had also not prevented the Court of Appeal to pronounce its judgment which was unfavorable to the position of the Government.14 It is also noteworthy that the judgment of the Court of Appeal of Brussels of 12 December 2008 has been partially overruled by the Court of Cassation in its judgment of 19 February 2010 for lack of motivation.15 There has also been a criminal investigation by the Court of Appeal of Ghent against three judges of the Court of Appeal of Brussels, and against the (then) President of the Court of Cassation. Three of them have been acquitted of all charges. As far as the fourth magistrate, a Judge of the Court of Appeal of Brussels allegedly at the origin of the difficult deliberations with had taken place within that Court of Appeal, the Court of Appeal of Ghent considered that she had not been sufficiently prudent in exchanging confidential elements with a honorary magistrate. According to the Court of Appeal of Ghent, she had violated her professional secret by submitting a partial draft of the judgment to a former colleague in view of linguistic revision. The judge has been condemned in the lightest manner: a suspension of the pronouncement of a judgment for two years.16 12 13 14

15 16

Cf. the report mentioned in note 10, p. 19. Cf. ibid., p. 30. See also: DE WIT, J., “Fortiscommissie: veel geblaat, weinig wol,” Juristenkrant, 25 March 2009, p. 9: “as well in first instance as at the appeals level, the judiciary has shown that it can withstand eventual pressure” (own translation). Arr. Cass., 2010, n°. 114, pp. 489–495. Ghent, 14 September 2011, http://jure.juridat.just.fgov.be/view_decision?justel=N-20110914 -1&1dxc_id=254716&lang=nl (Justeln° N-20110914-1), confirmed by a judgment of the Court of Cassation, 13 March 2012, P.11.1750.N (www.cass.be).

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It is clear from the enquiries and investigations concerning that case that the Government had not attempted deliberately to influence the course of the judicial procedure in that case. The great media and political turmoil surrounding that case did not correspond to a serious encroachment upon the independence of the judiciary as had been suggested.

Chapter ten

On Fairness Sir Louis Blom-Cooper QC* I

Introduction: The Concept of ‘Natural Justice’ and Fairness

It used to be called ‘natural justice’. Yet it took quite a long time for the phrase to be brushed out of judicial language, and it is still not yet fully consigned to legal history. If the phrase was always demonstrably vacuous, it survived for half a century in an attenuated form in the area of contemporary civil litigation; it has at least been totally replaced since the 1970s in the burgeoning field of public law. Yet the successor concept of ‘fairness’ is not fully understood in its modern context. Does it mean something different from the duty of a tribunal to act fairly in its practice and procedure? Or does it remain, as its earlier form did, an essentially procedural concept – call it, if you will, due process – as a rule of adjectival law, but not a rule of substantive law? More important, however, is the question whether ‘fairness’ has a flexibility of language, meaning the condition or quality of being fair, that it extends the principle – that is, ‘was the decision reached fairly?’ and ‘was the decision fair?’ That they are not synonymous as a concept of fairness is obvious, or has it crept into modern legislation as a different kind of animal? The concept of ‘natural justice’ was emphatically unmasked as a construct of the legal system by the authorship of the legal profession, and as such was recognised as not unnatural, by Mr. Justice Maugham, the brother of Somerset Maugham and a subsequent Lord Chancellor. He wrote the following in 1929 in McLean v. Workers’ Union:1 Eminent judges have at times used the phrase, ‘the principles of natural justice’. The phrase is, of course, used only in a popular sense and must * Sir Louis Blom-Cooper QC was called to the Bar by the Middle Temple in July 1952, and was made a Bencher of the Inn in 1978. He took silk in 1970, and was a Deputy High Court Judge from 1992 to 1996, as well as a Judge of Appeal in the Court of Appeal of Jersey and of Guernsey from 1989 to 1996. Publications include Final Appeal: A Study of the House of Lords in its Judicial Capacity (1972), co-authored with Gavin Drewry, The Court of Appeal (2007), with Gavin Drewry and Charles Blake. 1 [1929] 1 Ch 602 at 624.

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not be taken to mean that there is any justice natural among men. Among most savages there is no such thing as justice in the modern sense. In ancient days, a person wronged executed his own justice. Amongst our own ancestors, down to the thirteenth century, manifest felony, such as that of a manslayer taken with his weapon, or a thief with the stolen goods, might be punished by summary execution without any form of trial. Again every student has heard of compurgation and of ordeal; and it is hardly necessary to observe that (for example) a system of ordeal by water in which sinking was the sign of innocence and floating the sign of guilt, a system which lasted in this country for hundreds of years, has little to do with modern ideas of justice. It is unnecessary to give further illustrations. The truth is that justice is a very elaborate conception, the growth of many centuries of civilisation; and even now the conception differs widely in countries usually described as civilised. It was at least noted as the equivalent of one of the two accepted principles – namely, that of audi alteram partem (hearing both sides), the other Latinism being nemo judex in causa sua (nobody is allowed to be a judge in his own cause – in short, impartial or unbiased). Mr. Justice Black, in the Supreme Court of Ireland in 1948 in Green v. Blake, said:2 ‘I believe the notion of fair play is, in our day, sufficiently evolved and widespread, to render unthinkable a state of law which would fail to accept that principle…natural justice means no more than justice without any epithet…’ Previously, it had been thought that the phrase was harmless. Thus Lord Shaw of Dunfermline said in 1915 in Local Government Board v. Arlidge:3 …the assumption that the methods of natural justice are ex necessitate those of courts of justice is wholly unfounded…In so far as the term ‘natural justice’ means that a result or process should be just, it is harmless though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and in so far as it is resorted to for other purposes, it is vacuous. Vacuity or not, it cannot be said that it has totally disappeared from the legal lexicon. Thus, Assistant Professor Austin I Pullé in an article in the Asia Pacific Law Review entitled Securing Natural Justice in Arbitration Proceedings4 2 [1948] IR 242 at 268. 3 [1915] AC 120 at 138. 4 Vol 20, No 1, 2012 p. 63 at p. 69.

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submits that ‘for practical and legal reasons, it is incorrect to conflate’ the two concepts of natural justice and acting fairly. And, for good measure, he cites Section 8 (7A) of the Australian International Arbitration Act of 1974 as explicitly stating that it is against the policy of Australia to enforce an award where ‘a breach of the rules of natural justice occurred in connection with the making of the award’. And Mr. Pullé argues that whereas the duty to act fairly may not require observance of the principles of natural justice in all cases it invariably requires that the decision process be fair. Mr. Pullé concludes that to observe the distinction between natural justice and fair play ‘leads to commercial efficacy and respects legislative intent’. Are there, I ask, other contemporary instances of legislatures employing the language associated with the jus naturale? If so, the concept survives, at least in the field of private law. But elsewhere, it no longer has a part in judicial decision-making. Thus Lord Morris of Borth-y-Gest in Funnell v. Whangarei Schools Board, a Privy Council case from New Zealand, said:5 “Natural justice is but fairness writ large and judicially. It has been described as ‘fair play in action.’” Whatever scintilla of doubt remains about the outmoded language, it cannot be doubted that in public law it no longer pervades the burgeoning jurisprudence. But, how far? Fairness as a selfstanding concept first emerged as a modern expression in Re HK6 where an immigration officer at Heathrow airport had refused to admit a boy from Pakistan on the ground that he appeared to be well over the age of 16 – the maximum age for admission to the UK as a dependant. Lord Parker lcj held that even if an immigration officer was not acting in a judicial or quasi-judicial capacity, he must nevertheless act fairly. II

Fairness: The Requirement of Impartiality in Administrative Law

It is where courts have entered the field of administrative law that the linguistic problem led to a recognition of the inutility of the two principles of ‘natural justice’. The principle of the impartiality of a judge, simply a rubric of bias, has been well developed in a series of cases applying the requisite criteria. This is no place to embark upon a discussion of where to draw the line between ‘prejudice’ or ‘preconception’ and on the other hand, ‘bias’. The principle of impartiality as it applies to public law likewise operates in the area of private law litigation. To observe the second principle of hearing both parties, public law has developed a raft of case law that applies the entitlement of an interested 5 [1973] AC 660 at 679. 6 [1967] 2 QB 617.

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party to be heard. The development of this principle falls under one of the four propositions by Lord Diplock in the gchq case of ‘procedural irregularity’. But here, as Lord Justice Lawton observed in R v. Race Relations Board,7 the phrase of ‘natural justice’ is liable to lead courts ‘into the trap of legalism’, which has encouraged – one might almost say, excited – lawyers to try to put public inquiries and administrative decision-making into legal straitjackets. An early instance of the application of fairness in public law came in 1974 in Maxwell v. Department of Trade and Industry (the Pergamon Press case) where the issue was whether inspectors holding an inquiry under the Companies legislation were required to put to witnesses what was being alleged against them to enable them to deal with those criticisms in the course of the inquiry. The Court of Appeal held that it was unnecessary for the inspectors to put their tentative or provisional conclusions to the witnesses in order to give them the opportunity to refute them. The inspectors, in declining to provide such an opportunity, did not infringe the concept of fairness. This episode with Robert Maxwell coincided with a development that was taking place in the public inquiries of that time – and thereafter. The lawyers’ insistence on anyone whose reputation was at stake in the inquiry process being given notice of any potential criticism of his or her conduct in the scandal or disaster under public scrutiny led to the birth of the Salmon letter, so called after the Royal Commission under Lord Salmon. The adoption in public inquiries of the legal procedure of alerting a prospective witness of possible criticisms that might be alleged continued throughout the period of the last decades of the twentieth century. But their utility came under increasing attack as distorting the extralegal process of public inquiries. It was no surprise that Salmon letters received no endorsement when Parliament enacted the Inquiries Act 2005. Salmon letters were a replica of the pleadings in civil litigation as the particulars of an indictment in a criminal trial. They were meant to alert the recipient to allegations that he or she had to answer. The primary legislation on public inquiries was silent on the issue, except that it required the chairman of the panel to conduct the inquiry fairly. Since Section 2 of the 2005 Act specifically declared that the Inquiry report must not find or determine any criminal or civil liability (save for a provision that nothing should inhibit any findings from which such liability might be inferred), there could be no application of Article 6 of the European Convention on Human Rights (which demands a fair trial for anybody whose civil or criminal liabilities might be affected). Thus the notion of fairness had to focus on the public inquiry and not just on individual witnesses or interested parties. 7 [1975] 1 WLR 1686.

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The public desire, lustily led by legal representatives of witnesses, to be alerted to any potential criticism, found its way into Rule 13 of the Inquiry Rules 2006. This Rule, which definitionally is delegated legislation, is in two parts. The first is a kind of replica of the Salmon letter. It provides that at any time during the conduct of the Inquiry the chairman may issue a warning letter, indicating that the Inquiry might conclude (which was necessarily tentative) criticism of the individual’s conduct. III

The Duty to Send a Warning Letter to Affected Persons in Public Inquires

The second limb of Rule 13 was altogether of a different, and more wideranging, obligation. Rule 13(3) provides that if the chairman is minded to criticise a person in the final report, he or she must first issue a warning letter and provide the recipient of the letter a reasonable opportunity to reply. What follows such a process is left deafeningly silent. Must the Inquiry include the content of the reply in its report? If so, should it then, if it rejects the response, provide a further opportunity to reply? If the Inquiry agrees to change the criticism or amend it, should it explain why it has adopted that course of action? And what should happen, if the response to the warning letter touches on the conduct of other witnesses in the Inquiry – should those other witnesses be served with a warning letter? Apart from the unanswered, puzzling question, how does the obligation to alert a witness of potential criticism fit with the principles of law? One cannot help observing that, in short, the Inquiry will develop into a series of minor issues in which one or more witnesses will find themselves accused of misconduct and seek to answer them. If so, the Inquiry might be held up indefinitely from reporting. If this is an aspect of fairness, we are in the realm of free speech. The underlying problem is that there is a general expectation that public inquiries must be conducted fairly, and over the last hundred years the judges have insisted on fairness, even if it was originally expressed in the language of natural justice. Judges, not unnaturally, have tried to define fairness, and the statute now demands judicial attention. Fairness was always undefinable – rather like the elephant, it was not an easy task, but fairness in practice had the elephantine quality of being easy to recognise. That recognition was in the hands of lawyers and readily acquired the trappings of legalism; hence the earlier resort to natural justice, the legalese of procedural fairness. But once stripped of that phrase, resort has been made to focus the Inquiry’s task on the reputations of individuals. But if that

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will not do, in the light of any application of Article 6 in respect of civil and criminal trials, what then? Article 6 makes no distinction between civil and criminal justice, both guaranteeing ‘a fair trial’. Procedural rules in the civil jurisdiction are specifically designed to ensure that judges, at least in the adversarial system of the English common law, hear and see – orality is a dominant feature – all the relevant evidence available so that they can find the facts and apply the substantive law to those facts. The judges act as umpires. For Jeremy Bentham, procedure was central to the machinery of civil justice, being the critical link between evidence and court decisions. Procedure also proves vital to litigants. Procedures that are perceived by them and the public to be fair attract legitimacy to the outcome of the civil trial, even to the extent that the citizenry will respect those outcomes. The legal process without that procedural legitimacy can, and does guide conduct through force and fear. It has been argued that the values of a society and the quality of the legal system are revealed more through the practices and procedures of its courts than through the manifestation of its substantive law – that its quality is in how the law operates, rather than what the law says. The verdict on the dispute is tolerable to the parties (particularly, the loser) if the process for arriving at the result has been fair. The loser can bear the losing of his or her case. IV

Fairness in Criminal Justice

I suspect the same cannot be said for criminal justice. For example, legal representation is considered absolutely necessary to ensure fairness for citizens prosecuted by the State with all its immense powers for investigation and conviction. Not so in civil litigation. The history of legal aid and expenditure has been one of gradual and experimental increases and hence the cost to legal aid and bills of costs. The consequence has been a steady rise throughout the latter half of the twentieth century. It has begun to look uncomfortable to the State and led to a policy of cost-cutting. The system of trial by jury, on the other hand, is an instance of devotion to a system (not replicated in civil justice since 1934) which commands public support that is cumbersome and costly, but nevertheless survives. Legal aid may be reduced, but it is nevertheless still in place. The modern shift in emphasis towards alternative resolution of civil disputes outside of the courts is further proof of adherence to a system in both its procedures and outcome. Thus fairness in the criminal justice system does not exclusively focus on procedure and in that respect is distinguishable from fairness in the courts of civil justice. Alternative dispute resolution and its emphasis on the settlement

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of disputes outside the legal process is a prime example. Pressures for public funding are infinitely greater for the enforcement of criminal justice than are those attendant upon access to civil justice. But is fairness in the civil process restricted to the two age-old principles of a right to be heard and the right to an unbiased tribunal? V

Fairness Requirement before a Commission of Inquiry

In one of the two judicial reviews in the course of the Bloody Sunday Inquiry, the Court of Appeal rejected a submission that the location of the oral hearings – whether the paratroopers who fired the fatal shots at Londonderry on 30 January 1972 should have to travel to Northern Ireland to face examination and cross-examination, as opposed to the comparative safety of a hearing in London, with its better security arrangements – was a matter of pure procedure, a matter for the Inquiry to determine, with which the courts, as a matter of principle, would not interfere. Lord Phillips of Worth Matravers, then Master of the Rolls, said: We accept that, in general, the court will not interfere with procedural decisions of a tribunal. Here, however, what is in issue is the fairness of the Tribunal’s procedure. Furthermore it is in issue in an extreme form, for what is alleged is that the procedure of the Tribunal will expose witnesses to the fear of lethal danger…while the Tribunal ‘is master of its own procedure and has considerable discretion as to what procedure it wishes to adopt, it must still be fair. Whether a decision reached in the exercise of its discretion is fair or not is ultimately one which will be determined by the courts.’8 Fairness, thus, is related not merely to the individual claiming the court’s duty to accord him a fair trial, but could encompass the wider aspect of fair proceedings. Those who conduct inquiries have to base their decisions, findings, conclusions or opinions (whatever is the appropriate word to describe their function) on the evidence that is collated, remembering that the Inquiry is not a court of law and will hear anything that is relevant to the Inquiry’s terms of reference. There is no room for argument about admissibility; it is all taken into account and given whatever weight the Inquiry thinks it deserves. Inquiries are no 8 Italics supplied.

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more bound to tell a witness who may be potentially criticised in their report what they have in mind to say about the witness’ conduct than is a judge sitting alone in a court of civil jurisdiction, who has to decide which evidence he thinks is credible and reliable so as to arrive at the truth. It makes sense that the Inquiry should conduct the proceedings so that everyone has a fair opportunity of correcting or contradicting the substance of what they and other witnesses have said or are expected to say, which is in conflict with that testimony. As to the criticism that might be the conclusion of the evidence, there is a good sense that the Inquiry might feel it right to ensure that the criticism is soundly based. To oblige the Inquiry to issue a warning letter is, however, to take the precautionary step a stage too far. As Lord Justice Lawton pithily observed in the Pergamon Press case, a person who has been criticised unfairly in the report is in the same position as a speech in Parliament or in any recognised public forum; ‘he has suffered damnum but not injuria’. After all, the Inquiry is conducted under statutory authority and is therefore subject to judicial review if it behaved so unfairly that the public interest requires a court to say so. Even if the common sense approach to the English common law does not declare Rule 13(3) unprincipled constitutionally, the Rule violates the principle against prior restraint in respect of freedom of expression under Article 10 of echr. This excursion into the unhappy process of alerting parties to a forthcoming report of a public inquiry, a novel form of ‘fairness’, stems from the inquiring body failing to observe the meaning that Parliament intended when using the word ‘fairness’ in the context of the preparation of a substantive decision in contradistinction to act fairly in the conduct (‘due process’) of the Inquiry. If it had ever been thought that the duty to act fairly was confined to a fair treatment of the individual in promoting or deferring his obligations in civil and criminal proceedings in a court of law, that notion has been judicially dispelled. VI

Fairness in Criminal Procedure

The notion that ‘fairness’ outreached the individual’s fundamental right to fair treatment had potentially emerged in legislation on criminal procedure, going back 30 years. The Police and Criminal Evidence Act 1984 was one of the pieces of criminal justice reform that transformed the procedures of criminal investigation by the police forces and prosecuting authorities in conformity with developing fundamental freedom and civil liberties in England and Wales. Apart from a traditional common law right to a fair trial, the English judge has long enjoyed a discretion to exclude evidence of which the prejudicial effect is considered likely to outweigh its probative value. That was thought to be only

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fair to the prisoner in the dock. The 1984 Act – fondly labelled pace – moved the goalposts in providing for the issuance of codes governing a host of matters, in particular, the questioning in custody of suspects by the police. The codes had to be taken into account in determining any question to which they were relevant. Section 78 was hugely significant. It added to the discretion of the trial court a power to ‘refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it’. I do not pause to assess how this novel provision has worked, assuming that, broadly speaking, Parliament intended that certain safeguards should be enjoyed whenever unfairness obtruded. If that provision received plaudits from civil libertarians, there was one outcome that was significant to those commentators who puzzled over the breadth of the concept of fairness. In a case concerning entrapment, R v. Smurthwaite,9 the Court of Appeal considered the phrase ‘fairness of the proceedings’ could properly encompass not only the position of the accused in seeking to resist the admission of impugned evidence, but also ‘fairness to the public’. Here then was explicit acknowledgment that fairness meant a fair treatment ‘in the round’. The equality of public interest and private rights has cloaked the concept of fairness beyond its original focus on the individual. Fairness is owed to the public as well as to the individual accused or witness. Where much of what takes place in and out of the courtroom nowadays has an impact beyond its intrinsic remit, in which verdicts touch the mood and temper of a country’s citizenry, and frequently actually affect their personal interests, the discretion of judges to act fairly is compelling. Just as there is a growing awareness that there is a boundary line (not always easily definable) between the legislature (including the Executive government) and the judiciary, so the application of fairness in the resolution of disputes calls for a delicate balance between the interests of the individual directly affected and the society in which the contested interests are appropriately distributed. VII Conclusion I conclude that the gamut of adjectival law has been appropriately covered in the decision-making of the courts – ranging from fairness to individual 9 [1994] 1 All ER 898.

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disputants in litigious rivalry, to the public alike through the medium of society’s legal institutions. If there is still a yawning gap for conceptualising fairness in the field of substantive law, it has not yet been filled, not even partially. It is unclear, for example, whether the concept of proportionality (only recently emerging in English administrative law) is imbued with the notion of fairness. If decision-makers must go through the motions of due process in arriving at their decisions, the quality of their decision-making is left untouched by judicial control beyond the well-established bounds of legality. Fairness remains firmly within the bounds of what precedes the decision. It is not just a question of equality of arms between rival disputants, but is innately a concept applicable to the public demand for ensuring that there is an even surface on the playing field – the grass is evergreen, the turf is flat with no potholes; there is no question of moving the goalposts and the refereeing is, like judges, at least impartial, if not moderate in approach to decision-making. If decision-makers go about their task with due regard to the obligation to act fairly, as they must, what about the quality of their decision-making? Here the law stumbles and provides no answer, save for the exposure to public comment. So far, the law has recognised the vagueness of any notion of fairness; it merely opts for the optimism of justice. It was best described by Lord Nicholls in Miller v. Miller in 2006:10 Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next. Is that the last word on what is meant by fairness in the result of a dispute? 10

[2006] UKHL 24, at para 4.

Chapter ELEVEN

The Conceptual Definition of the Constitutional Court in Italy Giuseppe Franco Ferrari* I Introduction The Italian Constitutional Court is not part of the judiciary. The judiciary power is ruled by Articles 101–110 (Section IV of Part II) of the Italian Constitution and is structured into three tiers, with the Court of Cassation on top, though the relationship between the three levels is usually described as non-hierarchical.1 Following the French model, the administrative justice system includes a first instance of administrative tribunals, and a second instance Council of State, which also exercises a consultative function with respect to the Government. The joint chambers of the Court of Cassation are entrusted with assigning cases to “ordinary” or administrative justices in case of positive or negative controversy about jurisdiction.2 The Constitutional Court does not belong to the judiciary; it is located outside of it, not only in terms of constitutional rules applicable (Articles 134–137), but also from the viewpoint of its very nature. The Court itself for several decades,3 till a very recent decision,4 has qualified itself as a non-judiciary

* Giuseppe Franco Ferrari is a tenured professor of Comparative public law at “L. Bocconi” University, Milan; former tenured professor at Teramo (1986–1990) and Pavia (1990–1999). He is also president of the Italian Association of Public comparative and European law - dpce (1999 till nowadays), member of the committee of the Italian Association of Comparative law (aidc), editing director of dpce review. He is co-editor of the manual “Diritto pubblico 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). 1 See A. Pizzorusso, Corte di Cassazione, in Enc. Giur., vol. IX (Roma, 1998). 2 See G.F. Ferrari, Giurisdizione amministrativa (diritto comparato), in Dig. Disc. pubbl., vol. VII (Torino, 1992), pp. 567 ff. 3 See dec. 13/1960; 168/1991 e 536/1995. 4 Ord. 103/2008: see S. Bartole, “Pregiudiziale comunitaria e «intergrazione» di ordinamenti,” (2008) Le Regioni 898.

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body, in order to be exempted from the obligation to defer a question concerning the interpretation of eu law to the European Court of Justice in Luxemburg, as all judges are compelled to do. Therefore, it never works either as a Court of last instance or of appellate jurisdiction. It does have jurisdictional nature, but its jurisdiction is limited to constitutional review that it confronts and manages in an exclusive way, being the authoritative constitutional interpreter of the whole legal system, though Parliament is not precluded from rendering an authoritative interpretation of the Constitution,5 under the ultimate control of the Court. However, its interpretation, at the end of the day, is binding on judges, Parliament, Government and administration only when it declares a statute unconstitutional, while in all other cases its decisions have a merely moral authority, given that in Italy, like in all civil law countries, there is no precedent doctrine, even in constitutional law matters. The Italian Constitution is considered rigid, and not flexible, because it can only be revised or amended through an entrenched procedure, implying two separate deliberations by each Chamber, the second after a minimum time span of three months from the first one and with an absolute majority of their members, with a further opportunity of confirmative referendum if a twothirds majority has not been reached. The Constitutional Court, like in Kelsen’s or Merkl’s theory,6 is mainly the watchdog for the rigidity of the Constitution, presiding over the conformity of all acts of Parliament to the Constitution, which could be by passed through ordinary legislation, and eliminating possible vices in the statutes or guaranteeing their perfection: this control is operated both in a formal perspective, implying the relationship between two different types of norms, one of which is stronger according to the rules governing the system of legal sources, and in a substantive way, implying the protection of the core values included in the Constitution.7 These values are either explicitly mentioned in the constitutional text or included in the Republican principle, exempted from revision according to Article 139. These supreme, intangible principles are not subject to revision, at least in a regressive form, rendering their protection feebler or less effective. The defence of the constitutional State (Verfassungsstaat) is entrusted to the Court, and it is ordinarily 5 From a critical perspective see A. Ruggeri, Interpretazione costituzionale e ragionevolezza, in A. Pisaneschi, L. Violini, Poteri, garanzie e diritti a sessanta anni dalla Costituzione (Milano, 2007), pp. 415 ff. 6 H. Kelsen, Wer soll der Hüter der Verfassung sein?, 1930–31 Die Justiz, Vi, 11–12; A. Merkl, Prolegomena einer Theorie des rechtlichen Stufenbaus, in A. Verdross (Hrsg.), Gesellschaft, Staat und Rech (Wien, 1931), pp. 285 ff. 7 See for instance decisions 1146/1988, 366/1991, 73/2001.

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supposed to include the interpretation of the so-called living constitution, combining extensive constitutional review of legislative acts with a modern theory of legal sources in a theory of the Constitution. Of course, Italian and many other constitutional law scholars have wondered about the legitimacy of Constitutional tribunals in the exercise of such enormous powers. It is impossible here to summarize the longstanding debate and its solutions. In brief, one can say that the democracies of the post-World War II era cannot find their foundation simply in democratic principles, but need to be strengthened through the principles of a written constitution (“double legitimacy” theory).8 II

The Genesis of the Italian Constitutional Court

The Italian Constitutional Court is the first example of constitutional justice in the new European order following the Second World War. The only models were the Weimar Court, mostly in charge of the conflicts between the federal State and the Länder, the Austrian and Czechoslovakian Courts of 1919 and 1920, and the shortly lived Tribunal Constitucional of the Spanish Republic of 1931. The Constitutional Assembly, elected on 2 June 1946, paid a lot of attention to the judicial review of legislation, though the supporters of the new body had much difficulty in prevailing over the opposition of the Marxist leftwingers like Togliatti, who did not want the ideas of popular legitimation of government and parliamentary supremacy to be overturned through the creation of a judicial body overseeing Parliament, and the small group of pre-war liberals, like Orlando and Nitti, who preferred to stick to traditional concepts or to simply allocate such functions to the Court of Cassation.9 Several young professors, like Costantino Mortati, Giorgio La Pira, Paolo Rossi, and Tomaso Perassi, succeeded in persuading the majority that the rigidity of the Constitution needs to be defended both in a formal and in a material meaning by a judicial body, at the same time in charge of the decision of any conflict between State powers and/or the newly created Regions and the State itself. A further problem was how to trigger the new judicial mechanism: it was 8 T. Martines, Indirizzo politico, Enc. Dir., vol. XXI (Milano, 1971); A. Spadaro, Una Corte per la Costituzione. Nota sull’originaria e prioritaria funzione della Corte costituzionale, in Studi in onore di P. Biscaretti di Ruffia, vol. II (Milano, 1987), pp. 1237 ff.; G. Burdeau, La démocratie. Essay sintetique (Neuchatel, 1956). 9 G. D’Orazio, La genesi della Corte costituzionale (Milano, 1981), pp. 58 ff.; C. Mezzanotte, Il giudizio sulle leggi. Le ideologie del Costituente (Milano, 1979).

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solved by deferring it to a constitutional statute (Article 137, para. 1), which was promptly approved before being dissolved by the same Assembly in Spring 1948 (Constitutional Law 1/1948). The American model was not seriously considered applicable as much as a year later in Germany, where the control of the American forces over the committee entrusted with writing the text of the fundamental law was quite strict. Various reasons supported this unconscious choice. First of all, the judiciary had not resisted the strengthening of the fascist dictatorship, swearing the oath of loyalty without problems, witnessing the exclusion of Jewish judges in 1938, and even the factual abrogation of the Statuto Abertino, without apparent reaction; the three largest parties believed it was better to make serious changes in the State structure, instead of letting the “fascist parenthesis,” in the famous words of Benedetto Croce, close without continuity solution, with the return of the same personnel to delicate power positions. Secondly, all throughout Europe, the separation of powers, though strongly mentioned in the famous Article 16 of the French Declaration of rights, has never been carefully implemented in the concrete organization of government, making the judiciary fully independent and able to confront the Executive and Parliament.10 Moreover, once assimilated the idea of a control over the exercise of popular sovereignty, the main parties accepted the constitutional court as a body able to umpire between State powers and between State and regional autonomies, but were not prepared to stand a direct petition against the State filed for the protection of a right in any court. Finally, the absence in Italy, like in all the other civil law countries, of the stare decisis principle could have rendered the annulment of any statute provision by any judge, though under the final decision of the Court of Cassation, quite puzzling.11 Once created, the Constitutional Court still had to be concretely activated. It took seven years (until 1955) before all the fifteen judges could be elected or nominated, and the two constitutional (Constitutional Law 1/1953) and ordinary (Law 87/1953) statutes necessary to its working could be approved. The first decision could be potentially published in April 1956. The delay in starting the whole machinery by some contemporary interpreters was ascribed to a kind of “majority filibustering”:12 the Christian Democrats, at that time the relative majority party, would have lost interest, in the new Cold War context which had generated a strong hostility toward the Communist Party and its 10 11 12

G. Rebuffa, La funzione giudiziaria (Torino, 1993). The whole story is told in detail by G. D’Orazio, La genesi della Corte, pp. 141 ff., and more recently by P. Pederzoli, La Corte costituzionale (Bologna, 2008), pp. 7 ff. P. Calamandrei, “L’ostruzionismo di maggioranza,” (1953) 2 Il ponte 129.

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allies, for the implementation of reforms that could have limited their hold on political power. More recent reconstructions seem to reach different conclusions.13 Incidentally, one should mention that in the years prior to the activation of the Court, its function should have been carried out by the judges in a diffused way, exactly like in the United States, according to the VI Final Disposition to the Constitution. The ordinary judges did not feel like confronting the unconstitutionality of statutes: the main argument to apply such “passive virtues” was that most of the provisions of the new Constitution, in particular those included in its first part, concerning civil, social and economic rights, had no preceptive content, being mere general propositions, binding only the legislator. III

The Composition

The Court is composed of fifteen judges. In the Constituent Assembly there was a lively debate about their selection. Those who supported the election by Parliament as a method of selection preferred to save a strong relationship between Parliament and the Court. A complete appointment by the judiciary was suggested by very few, due to the aforesaid limited tradition of independence. Finally, a mixed system was chosen: one third of the members are elected by Parliament in joint session, with a qualified majority of 2/3 in the first three ballots, which is abated to 3/5 afterwards; five are appointed by the top judicial bodies, in detail three by the Court of Cassation, one by the Council of State and one by the Court of Accounts, among their members; the last five are appointed by the President of the Republic under his responsibility, though the appointment decree is signed by the Prime Minister as well. The designation of the first and the last five shares a common political criterion. In the first round, when the communist opposition was assumed to never become a government party, only one member was reserved to it. In later years, until 1993, there has been more variety in the appointments by Parliament and the President. The appointees are chosen among lawyers with a minimum of twenty years of experience and tenured university professors of law. Their term lasts nine years, at least after the constitutional amendment that in 1967 reduced it from the original twelve, and re-election is foreclosed. The President 13

A. Simoncini, “L’avvio della Corte costituzionale e gli strumenti per la definizione del suo ruolo: un problema storico aperto,” (2004) Giur. Cost. 3065; U. De Siervo, “L’istituzione della Corte costituzionale in Italia: dall’Assemblea costituente ai primi anni di attività della Corte,” (2006) www.consultaonline.

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of the Court is elected by the members and sits till the end of his mandate; traditionally the most senior judge is elected, even for a few months, which means that the turnover is quite frequent. For any judicial decision, a quorum of eleven judges is required, while nine are enough for other activities. Sometimes the Court comes close to paralysis, in case of parliamentary deadlocks on new nominees, depending on the need of an agreement between majority and opposition to reach the prescribed number of votes. Dissenting and concurring opinions were explicitly ruled out during the parliamentary work that preceded the 1953 statutes. Therefore, decisions are always unanimous. Sometimes their motivation is short enough, in order to help reach a compromise solution that too much detail would prevent. After the first twenty years or so, there has been a growing trend towards longer and more analytical motivations, as much as the need for consensus grew in a more fragmented societal context. IV

The Functions

The Italian Court carries out a plurality of functions. The first one is the main reason for its creation: the decision “on disputes concerning the constitutional legitimacy of laws and acts having the force of law, adopted by the State and the Regions” (Article 134, para.1). All State legislation can be reviewed, including ordinary statutes, law decrees and legislative decrees approved by Government; both regional statutes approved in the exclusive legislative subject-matters of Article 117, para. 2 and the concurrent legislation of Article 117, para. 3, conforming to the principles imposed by State framework-statutes can be also reviewed. Parliamentary standing orders and rules governing the work of regional councils are not reviewable. The parameter of judgment used in the constitutional review of legislation is composed of all the constitutional norms and of constitutional laws as well, approved following the entrenched procedure of Article 138. Over the years, the Court has also applied integrative parameters, called “interposed rules,” like traditional principles of international customary law, international conventions concerning human rights, beginning with the echr, provisions implementing regional statutes in the five special Regions that acquired such a status following the Second World War. A claim can be filed before the Court following two different proceedings. The principaliter proceeding is lodged by the national Government against a Region, or by one of the Regions against the State within sixty days after the publication of the contested piece of legislation. The State and Regions, after the constitutional revision of 2001 which amended Article 127 among several

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others, are almost on an equal footing because a regional law can now be impugned only after its coming into effect, while in earlier times the State could file a claim even before, preventing it from entering into effect. Yet, the two parties are still not perfectly on par in terms of locus standi because, even after 2001, the State can invoke any violation of constitutional provisions, while the Region can only lodge claims concerning invasion of legislative or administrative competences. Furthermore, the Fundamental Statute of a Region, approved by the regional council with an absolute majority of the assigned members with two separate ballots with an interval of no less than two months, can also be brought to the Court within thirty days of its publication, suspending its efficacy, according to Article 123.14 The incidenter proceeding originates “during the course of a court case” (Article 1, Constitutional Law 1/1948) when an ordinary or administrative court (judge a quo), after a preliminary review of the unconstitutionality of the statute the application of which is at stake, considers relevant and not clearly unfounded question and decides to suspend the judgment and to ask the Constitutional court to decide. The second function of the Court is the resolution of jurisdictional disputes between branches of government, meaning bodies having the competence to express the final will of the branch to which they belong. The dispute in this case can concern a jurisdictional or administrative act, when a branch challenges the exercise of a power by another branch assuming to be competent to carry out that function or contesting the way it has been carried out. For instance, a frequent case is that of public prosecutors lodging a claim against a Chamber of Parliament denying the authorization to arrest or search an mp during an investigation. The same kind of jurisdictional dispute can be introduced by a Region against the State or another Region or by the State. The third function, introduced by the Constitutional Law 1/1948 concerns the judgment of admissibility of the abrogative referendums contemplated by Article 75 of the Constitution. It implies the prerogative to verify whether the request of referendum, by half a million electors or by five Regions, is encompassed in the constitutional limits and does not touch topics where its calling is forbidden, though this judgment has been expanded over the years to include the clearness of the language, the understandability of the question and its possible consequences, the eventual impact on constitutional bodies whose functioning cannot be paralysed. The verification of the number of

14

The details in J.O. Frosini, Constitutional Justice, in G.F. Ferrari (ed.), Introduction to Italian Public Law (Milano, 2008), pp. 195 ff.

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signatures in case of popular request or of the regularity of the collection proceeding is not allocated to the Court, but to central office of the Court of Cassation. The last function, one that has never been exercised, concerns the judgment of the President of the Republic in case of impeachment: the investigation is supposed to be completed by the immunities committees of the two Chambers, and the accusation deliberated by a majority of the members of the Chambers in joint session. The impeachment procedure can be activated only for two unique crimes, high treason or attempts to overthrow the Constitution. Originally the Constitution also assigned to the competence of the Court the ministerial crimes: the only occasion when it was actually exercised was in the Lockheed case, for bribery in the process of buying airplanes from an American firm. The Court was compelled to suspend almost all the other activities for several months, thus generating an enormous backlog of cases that took some years to dispose of. Therefore Constitutional Law 1/1989 repealed this provision from the constitutional text. V

Kinds of Decisions and their Effects

The Constitutional Court can issue several types of decisions, which can be classified according to their different parameters. From a procedural viewpoint, judgments are the final decisions concluding the proceeding where the question of constitutionality has been raised; orders are procedural decisions not closing the procedure or closing it only temporarily; decrees are adopted by the President and normally regulate organizational matters. In more substantive terms, both incidenter proceedings and principaliter proceedings are decided either with an inadmissibility decision, for instance because the question was proposed by a body lacking judicial nature, the question lacks concrete nature, it lacked relevance in the a quo proceeding, or even because the statute to which the question refers has been abrogated or integrated and it might be necessary to get a supplementary evaluation by the a quo judge; or on the merits. In this last case, unless the question is clearly unfounded and can be disposed of with an order, the judgment is either of acceptance or of dismissal. The dismissal decision rejects the question of unconstitutionality and saves the law: this kind of decision only has inter partes effect, binding only the judge who proposed the question, which can be proposed again by another judge or even by the same judge later on, even when initially lodged through a principaliter proceeding by a Region. Given the absence any stare decisis doctrine, the Court is allowed to change its mind, overruling its former decision.

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Such an event is not very frequent, but it may occur when the interpretation which leads the Court to save the contested provision is not followed by ordinary or administrative judges, and the question comes back to the Court in later years. The acceptance decision, to the contrary, declares the statutory provision unconstitutional and has erga omnes effect. The acceptance decision does not abrogate the unconstitutional provision, which simply becomes non applicable from the publication of the case: therefore, the decision has ex nunc effects. The simple scheme which opposes acceptance and dismissal decisions has been elaborated over the years and has given way to a much greater variety of options, which have represented a model for several other European constitutional courts. A further type of decision, that cuts across the former two, is the interpretative decision. Since no binding consequence derives from the precedent, two or more possible interpretations can be attributed to the same statutory provision by different judges, and even by the Court of Cassation, at least before a Grand Chamber decision. Therefore, when a constitutionality question gets to the Court through a claim lodged by an a quo judge, the Court may recognize the existence of different normative meanings (in theory or even in practice) and must opt for one of them before deciding the issue of constitutionality itself. When the Court prefers to adhere to a normative meaning that leads it to state the unconstitutionality of the contested provision, the interpretative judgment of acceptance is final, because the decision has an erga omnes effect. To the contrary, when the Court prefers to stick to a normative meaning that allows it to save the provision as non-unconstitutional, there is no guarantee that ordinary and administrative judges will confirm it in future cases, given the absence of erga omnes binding effects of the dismissal decision; if another interpretation in fact prevails, a claim of unconstitutionality can be lodged again and the interpretative decision of dismissal can leave place to an interpretative decision of acceptance. Manipulative judgments are another category of decisions including several types. Partial acceptance judgments, for instance, imply that confronting a normative text drafted in a complicated manner, the Court finds itself obliged to sever parts of the statutory provisions, saving some of them and declaring unconstitutional others. By so doing, the meaning of the surviving text can be consistently different from the original intent of Parliament, if understandable. Over time, the Court has been criticized for this approach, which in some cases produces the same effects of the line-item veto in the US presidential experience. Its creativity reaches the apex and can produce a relevant change in the normative meaning as a consequence of the selective elimination of some parts of the provision only. On other occasions, the manipulation is even

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more intentional and far-reaching when the Court, in declaring the unconstitutionality of a given provision suggests how to replace the unconstitutional part of it, not by simply giving advice to Parliament, but by actually introducing into the text a new proposition that it declares to be the only one compatible with some constitutional principles, somehow directly filling a vacuum. These manipulative decisions are called substitutive judgments. The most frequently mentioned case of this group15 goes back to 1969, when the Court, while declaring the unconstitutionality of the Criminal Code provision subordinating the prosecution of the contempt of the Constitutional Court to the consent of the Minister of Justice for endangering the independence of the Court, decided to integrate its reasoning by stating that only the Court itself could be responsible for such an authorization. Additive judgments belong to the same family, involving an increasing amount of judicial creativity. It happens that a provision can be sanctioned as unconstitutional not for what it says, but for what it omits to say. The declaration of unconstitutionality in that case necessarily implies that the Court also states the rule that should integrate the provision in order to give it a sense that is compatible with the Constitution: when there is a plurality of options, the choice is necessarily left to the discretion of the legislative power; when only one seems to be available or to be compelled by constitutional exigencies, then the Court may integrate the text right away. For instance, the defendant in a criminal case, according to international conventions, has a right to an interpreter when interrogated and since the Criminal Procedure Code did not contemplate any provision of such a right, the Court directly integrated the Code, adding a constitutionally required provision.16 On very rare occasions, the Court, while adding a provision into a statutory text deserving integration in conformity with the Constitution, can find itself at odds with the exclusion from welfare benefits of a group of subjects potentially in need on the same terms as others.17 Something similar happened in the United States with the Supreme Court in the first half of the 1970s, when the due process and the equal protection clauses started to be used to extend the welfare protection, almost introducing welfare or social rights.18 15 16

Dec. 15/1969: see again J.O. Frosini, Constitutional Justice, p. 204. Dec. 10/1993, see M. D’Amico, “Decisioni interpretative di rigetto e diritti fondamentali: una nuova strada per la Corte costituzionale?”, (1993) I Giur. it. 2048. 17 For instance decisions 454/2007 on the right to social assistance; 432/2005 on the right to free access to public transportation; 306/2008 and 11/2009 on the right to social benefits related to disability. 18 See Goldberg v. Kelly, 397 US 254 [1970].

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These additive judgments also have an expenditure content, because they deprive Parliament of its most natural prerogative, that of finding the resources necessary to support social services. Therefore, after receiving some criticism from legal scholars19 and political parties, the Court has more recently switched to judgments where the omission is declared unconstitutional because it does not extend constitutionally needed protection, but Parliament simply receives some instructions about how to choose the appropriate solution within a range of given options and keeps the exclusive responsibility of looking for the financial resources and adjusting the delicate distributive problems following the enlargement of the lot of beneficiaries.20 The last type of manipulation appears in the decisions called exhortative, when the Court, confronting matters regulated by technical or otherwise complex rules, does not feel like completely substituting its opinion for the discretion of Parliament and prefers to deliver a message to the Legislature, asking for the adoption of new statutes or even sketching some principles or guidelines for the Chambers to be followed in the requested intervention.21 Many other colourful terms are used by public law scholars to describe further kinds of judgments: for instance, “orthopaedic” are the cases where the Court makes an effort to prevent a stumbling provision from collapsing by applying conservative techniques, like inserting some new element through interpretation or emphasizing aspects formerly ignored or understated.22 More types can be identified in the judgments concerning the admissibility of referendums, where the relationship with Parliament can be even more complicated, depending on the epoch of the statute, its legislative history, its links with the working of constitutional organs, the severability of provisions to be abrogated from the rest of the text, and so on.23

19

20 21

22 23

C. Panzera, Sentenze normative della Corte costituzionale e forma di governo, in A. Ruggeri, La ridefinizione della forma di governo attraverso la giurisprudenza costituzionale (Napoli, 2006), pp. 516 ff. Decisions 385/2005 and 77/2007. See for instance decisions 32/2004 and 61/2006. On this issue see G. Zagrebelsky, La Corte costituzionale e il legislatore, in P. Barile, E. Cheli, S. Grassi, Corte costituzionale e sviluppo della forma di governo in Italia (Bologna, 1982), pp. 141 ff. See decision 303/2003. See A. D’Atena, “L’allocazione delle funzioni amministrative in una sentenza ortopedica della Corte costituzionale,” (2003) Giur. cost. 2782. See for instance decision 13/2013: A. Ruggeri, Davvero inammissibili i referendum elettorali per la (supposta) impossibilità di reviviscenza della normativa previgente rispetto a quella oggetto di abrogazione popolare (a prima lettura di Corte cost. n. 13 del 2012), in AA.VV., Nel limbo delle leggi. Abrogazione referendaria della legge Calderoli e reviviscenza delle leggi Mattarella? (Torino, 2012).

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In sum, the Court has been expanding a growing number of types of decisions, mostly reacting or adapting itself to actions or omissions of Parliament, occupying room left free from legislative inaction, remedying internal contradictions of pieces of legislation, filling loopholes in statutory texts, occasionally preventing or regulating a posteriori conflicts between powers, suggesting and guiding, admonishing and stimulating Parliament and Government, or even the Judiciary, compensating when necessary and more often balancing values and principles, in conformity with its most familiar attitude. With an average number of about 350 decisions per year, there are not only a wide range of types, but also new chances of elaborating further kinds of judgments, though the traditional classification should be considered consolidated. Decisions like the so-called Previti case24 or the Citi case,25 in the sector of the conflicts of power, concerning the refusal of criminal courts to delay some hearings in order to allow a member of Parliament to attend his Chamber and balancing the interest of Parliament to the regularity of its work with the interest of criminal justice to speedy trials, at the beginning of the century seemed to define once and for all the criteria of evaluation of the causes of justification for hearing deferrals. In 2013, the Berlusconi case26 offered new materials for a partially different reasoning. As far as the privilege of the President of the Republic is concerned, the Cossiga case in 2004,27 when a former President challenged the treatment given by the Court of Cassation to his words, seemed to decree the final word on the topic; however, the recent Napolitano case of 201328 where the President in office was intercepted by the anti-mafia public prosecution office of Palermo, concerned unexpected events, which had to be assessed in quite new terms, giving way to unprecedented reasoning. In a completely different field, the approval of the new regional statutes after the constitutional amendments of 1999 and 2001 started a season when the Court had to confront the new concept of “harmony with the Constitution,” to distinguish between limited vices of unconstitutionality and full incompatibility, graduating the effects of its decisions and regulating their follow-up.29 24 25 26 27 28 29

Dec. 225/2001. Dec. 284/2004. Dec. 168/2013. Dec. 154/2004. Dec. 1/2013. For instance decisions 304 and 306/2002; 2, 378, 379/2004. See S. Mangiameli, “La nuova potestà statutaria delle Regioni davanti alla Corte costituzionale,” (2002) Giur. Cost. 2358 e P. Passaglia, Il controllo di legittimità costituzionale degli Statuti ordinari, in R. Romboli (ed.), Aggiornamenti in tema di giustizia costituzionale (2002–2004) (Torino, 2005), pp. 135 ff.

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In other words, the typology of decisions is not static, but keeps on being enriched by various institutional events that the Italian political system never ceases to produce. VI

The Court and Transnational Courts in Europe

A powerful evolutionary factor in the history of the Court has been its confrontation with the framework of international or supranational obligations that have constantly compelled adjustments and adaptations. The result has been the construction of what has been called a multi-level constitutional system, where the role not only of the Italian Constitutional Court, but also that of all the constitutional tribunals of the European countries has been consistently rebuilt. As far as the echr is concerned, before 2007 the ordinary judges tried to promote the Convention from the level of ordinary law to a stronger force. According to Articles 10 and 11 of the Constitution, the force of an international treaty is that of the statute which introduces it into the domestic legal system. After 2000 and after the adoption of the Charter of Nice as an intergovernmental agreement, some courts, among them even the Court of Cassation in Grand Chamber, began to declare inapplicable national provisions conflicting with the Convention, putting it on a par with European law, or considering the fundamental rights incorporated in the Convention almost equivalent to principles of customary international law, or even relying on the increased value of rights in the European order after Nice. The Strasbourg Court, on the other hand, had often repeated that national judges should keep in mind its interpretative guidelines and lodge claims even derogating to the rule of previous exhaustion of all available remedies.30 The Constitutional Court had always confirmed the ordinary force of the Convention, though stating that later statutes, like the Procedural Criminal Code, cannot derogate it, given the atypical force of the legal source, not abrogable by ordinary laws. Finally, in a famous pair of judgments in 2007,31 the Court recognized the quality of provisions integrating the constitutional parameter to the echr, resting on the text of Article 117, para. 1, introduced in the constitutional amendment of 2001, which imposes the observance of international obligations both to regional 30 31

See for example V. Sciarabba, Tra fonti e Corti. Diritti e principi fondamentali in Europa: Profili nazionali e comparati degli sviluppi nazionali (Padova, 2008), pp. 305 ff. Decisions 348 and 349/2007: among many commentaries, A. Bultrini, R. Cafari Panico, L. Tomasi, L. Montanari, A. Ruggeri (2008) DPCE 171–222.

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and State laws. At the same time, the Court has reappraised the importance of the Strasbourg case-law, confirmed the need for international obligations to conform to the whole Constitution- no matter whether in its principles or in more detailed prescriptions-exactly as it requires of European law, opposing the constitutional “counter-limits” to it; it also reinstated the bond to interpret domestic laws in conformity with the echr as construed by the Strasbourg Court. Since then, all judges have followed the Court’s will, ceasing to declare inapplicable domestic statutes contrasting international obligations, leaving this syndicate only with the Court. Finally, in another pair of judgments in 2009,32 the Court specified that any international provision, before being used as an interpretative parameter, needs to be verified as compatible with the Constitution itself, and even balanced towards constitutional provisions guaranteeing other rights already protected in the domestic order so that their protection be improved and not jeopardized. Such a formula has achieved some stability; the case law of Strasbourg, which is quoted much more than before, is considered binding on Italian judges, including the Constitutional Court, be it fully consolidated or not, unanimous or not, of one chamber or of the Grand Chamber, adopted against Italy or other countries, of condemnation or indemnification.33 The higher rate of citations of Strasbourg cases by Italian judges is likely to depend on the tough confrontation between the Italian Court of Cassation34 and the Strasbourg Court on the excessive duration of criminal trials: the unconstitutionality of the domestic provisions has been stated by the Constitutional Court only after a plurality of echr cases confirming repeated violations of the Convention in circumstances similar to those under examination. Some authors describe the reasoning of the Constitutional Court in recent years as resembling the Anglo-American art of distinguishing and being much more careful about facts, due to the influence of Strasbourg.35 As far as European law is concerned, the Italian Constitutional Court, begining its activity before its potential was fully understood, started what was called its “European walk,”36 first examining the constitutional legitimacy of the European treaties,37 then admitting its direct effect in the domestic system 32 33 34 35 36

37

Decisions 311 and 317. See E. Lamarque, “Gli effetti delle sentenze della Corte di Strasburgo secondo la Corte costituzionale italiana” (2010) Corr. Giur. 955. Cass. Sez. un. civ. 26 January 2004, nos.1338, 1339, 1340, 1341. Again E. Lamarque, Gli effetti delle sentenze, p. 960. P. Barile, “Il cammino comunitario della Corte” (1973) Giur. Cost. 2406; F. Sorrentino, “Il diritto europeo nella giurisprudenza della Corte costituzionale: problemi e prospettive” (2006) Quad. reg. 625. Dec. 98/1965 and 183/1973.

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though on an equal footing with ordinary statutes,38 and more reluctantly of regulations and other directly applicable provisions like self-executing directives.39 With the latter, the Constitutional Court accomplished the realization of a continuum between domestic law and European law, leaving behind the classic theory of the separation of legal systems by using both Article 11 of the Constitution and Article 249 (formerly 189) of the ec Treaty40 in order to invent (by derogating from the domestic rules concerning the legal sources) the nonapplication of non-compatible national rules, carried out by all judges, in a diffused system of control. Finally, its decision 232/1989, around the same time of the Solange judgment of the German Constitutional Tribunal, created the counter-limit doctrine, saving the procedural and substantive KompetenzKompetenz and preserving the supremacy of constitutional principles and above all of fundamental rights in the domestic formulation over the penetration of communitarian provisions of European Community law. The counter-limit doctrine, created and maintained in order to protect individual rights, should be designed to save what is left of sovereignty, but in fact has proved almost devoid of content. Only once did the Court come close to declaring unconstitutional Article 177 of the eec Treaty,41 interpreted as authorizing the Luxembourg Court to limit the temporal effects of an acceptance decision excluding any consequences for the controversies originating the case under judgment and rendering it merely prospective.42 Furthermore, distinct from the German Constitutional Tribunal, the Italian Court has always denied the possibility of annulling a regulation for violation of the core content of rights. Should it ever run across a regulation suspected of unconstitutionality, the Court could only resort to the unconstitutionality of the Italian statute ratifying the Treaty and thus consenting the adoption of such a regulation, possibly after asking Luxembourg prejudicially a previous verification of the compatibility of its provisions with the principles of the European system. Until 200843 the Court has traditionally denied its legitimation as remittal judge and in case of doubt of unconstitutionality of a European provision has always returned the question to the a quo judge, escaping a direct confrontation or dialogue with the Court of Justice, assuming a non-aggressive approach. On its side, the Luxembourg Court was developing a growingly protective 38 39 40 41 42 43

Dec. 14/1964 and 183/1973. Dec. 183/1973, and later 170/1984, 113/1985, 168/1991, 384/1994, 94/1995, 509/1995. And now Article 288 of the tfeu. And now Article 267 of the tfeu. Dec. 232/1989. Ord. 103/2008.

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attitude toward rights, for example defence, due process, injunction in the administrative law-suit, and jurisdictional protection of rights. At the beginning of the 1970s, after Nold and Stauder,44 and later on in the mid-1990s with decisions like Zuckerfabrik and Atlanta,45 the Court often used the container of the constitutional traditions of the member States, though it has never really reasoned as a comparatist, limiting itself to select some principles or theories useful to follow paths already chosen to decide the case before it. This technique, as rough and discretionary, or even arbitrary as it might be, has finally yielded the codification of the rights of the European citizen in the Nice Charter. At the same time, the Luxembourg Court has progressively resorted to the balancing of values and interests, typical of constitutional courts, such as between freedom of expression and protection of personal data,46 property, right to be heard and public security,47 freedom of enterprise and intellectual property.48 VII

An Overview: Role and Legitimation of the Constitutional Court

The Italian Constitutional Court has been imposing itself as an important player on the Italian institutional stage, starting from an uncertain position, due to the novelty of such a creature in the legal and political landscape of Italy, as well as of the other European countries, since, notwithstanding an eight year delay, it was the first court of its kind to be activated in 1956. In the beginning, both public law scholars and politicians found themselves at odds in defining its nature and its position in the constitutional system. The very identity of the Court was initially far from clear in the eyes of both public opinion and the lawyers. Nothing was obvious: several judges believed that the sanction of unconstitutionality could be applied to post-Constitution laws only, while older statutes, including the most intrinsic to the Fascist regime, were beyond the competence of the Court. The Court of Cassation was persuaded that most constitutional provisions had no real normative strength, being only a sort of cluster of principles in a long-term political program, and could not be used as a parameter for constitutional review. The Court had to make serious efforts to have its role understood, let alone accepted. Still, in 1960, almost five years after its concrete activation, it had to clarify that it was 44 45 46 47 48

See dec. 14 May 1974C-4/73 and dec. 12 November 1969C-29/69. Dec. 17 November 1993, C-134/92 and dec. 9 November 1995, C-465/93. Bodil Lindqvist, 3 November 2003, C-101/01. Kadi, 3 September 2008, C-402/05. Scarlet Extended, 24 November 2011, C-70/10.

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not a part of the judiciary, and that the function of constitutional review, of supreme guarantee of the observance of the Constitution by the constitutional organs, was unique and not amenable to any of the classical powers.49 Therefore the Court, from its very first judgment,50 had to explain that all the provisions of the Constitution were on a par, equally binding and equally useful as a parameter of unconstitutionality, and that all statutes could be sanctioned independently from the time of their approval. At the first hearing, President De Nicola stated that the mission of the Court was to protect the country from “confusion and mistakes,” possibly alluding to the contemporary French turmoil, which would soon lead to the Fifth Republic.51 This feeling of novelty in search of legitimation was likely the cause of exclusion of dissenting and concurring opinions: this measure was probably conceived as temporary, to be set aside after achieving stability, but in practice it was never cancelled. Sometimes the President, in his annual press conference or on other public occasions, will mention some disagreement in the bench without names nor numbers. Only once, in 1987, did a serious controversy on the election of the President lead to the resignation of a member, for not having been elected, he assumed, due to political reasons: in that case the contraposition came openly to the surface. Within a couple of years, by 1958, the role of the Court had become clear to both scholarship and public opinion. It came to be defined as a role of spur and impulse,52 of supervision of the other constitutional organs, of correction of deviations or mistakes of the political system; the functions carried out were identified as non-jurisdictional and non-legislative, though the Legislature might be in need of being replaced or guided; its position as outside and over the three classical powers.53 Still, in 1960 the Court had a tough confrontation with the current President of the Senate Merzagora in order to establish a definition by its President as a pillar of the constitutional order. The first twelve years, coinciding with the span of the term of the first fifteen nominees, later reduced to nine by Constitutional Law 2/1967, were dedicated to define the space occupied by the Court. It showed great capacity of clearing 49 50 51 52

53

Dec. 13/1960. Dec. 1/1956. See F. Bonini, Storia della Corte costituzionale (Roma, 1996), pp. 117 ff. P. Barile, “La Corte costituzionale organo sovrano: implicazioni pratiche” (1957) Giur. Cost. 907; P. Biscaretti di Ruffia, Il problema della giurisdizione costituzionale e la sua recente soluzione in Italia, in Scritti in onore di Vittorio Emanuele Orlando, vol. I (Padova, 1957), pp. 125 ff. M. Cappelletti, “La giustizia costituzionale in Italia” (1960) Giur. Cost. 469.

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the legal system of most traces of fascist legislation, like in the field of civil rights, such as domicile, peaceful assembly and association, in that of family law, in the criminal trial and in treatment of crimes, and in the sphere of industrial relations. Furthermore, it actively intervened in the promotion of the condition of women, such as in the civil service, in the parliamentary politics of deficit spending in violation of Article 81 of the Constitution, and began to confront the problems deriving from the growing consolidation of the European Communities. By 1968 it had reached a relative stabilization both in the perception of the political system and the public opinion and in the definition and use of its types of judgments, for instance shifting from frequent interpretative dismissal decisions, that ordinary judges often did not respect, choosing different interpretations, to partial acceptance decisions. In the following decade the instrument most resorted to was the living Constitution, defined in its real terms through the case law of ordinary and administrative justice, in an effort of adaptation to the evolving necessities of the time, subject to the Court’s intervention. During the same period the Court confronts some important cases about the admissibility of referendums concerning delicate statutes, such as those introducing divorce54 and abortion.55 Again in the 1970s the Court came to grip with the problems of a more modern society, like the application of annulment and divorce to concordat marriage,56 pre-trial detention,57 freedom of expression,58 trade unions and their activity,59 the right to privacy versus phone tapping,60 defence rights of the accused,61 State monopoly in the radio and television sectors,62 the judiciary oath formula;63 many controversies began to concern the complex relationship between the State and the Regions, the latter having been concretely set up in 1970; for the first time a conflict between the judiciary and Parliament had to be solved;64 it also reacted against too wide a use of referendums in sectors like the concordat between Church and State, parts of the Criminal Code,

54 55 56 57 58 59 60 61 62 63 64

Dec. 10/1972. Dec. 251/1975. Dec. 169/1971 and 176/1973. Dec. 64/1971 and 17/1974. Dec. 199/1972 and 142/1973. Dec. 54/1974. Dec. 34/1973. Dec. 172/1976. Dec. 202/1976. Dec. 117/1979. Dec. 259/1974.

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the organization of the army,65 and imposing its exclusion when constitutional values could be jeopardised. The docket became overloaded, and faced a real crisis between March 1977 and February 1979, when all other activities had to be suspended due to the Lockheed trial against two Ministers, when the Court had to be integrated by sixteen more members, drawn out of a list of forty-five elected by Parliament in joint session among citizens possessing the qualifications required to become a Senator, as prescribed by Article 135, para. 6 of the Constitution. After the end of the trial, it became necessary to decide thousands of unsettled questions by speeding up the pace of decisions and publishing a greater number of judgments for several years.66 In these years the Court was finally accredited as a normal player in the institutional framework, whose intervention is expected and sometimes solicited, the natural place of conflict regulation, the final instance of value balancing. The 1980s and the 1990s confirm this role of the Court and at the same time put it in an even more central position both in the role of guidance of the legal system, at a time when the growing importance of the echr and the gradual strengthening of the European Communities, later European Union, force the legal sources and the institutional powers to look for a new cohesion, and as a centre of the political scene, as the most important stakeholder, mostly around and after 1993, when Italian politics go through a very difficult phase, when the electoral system is changed, some traditional parties disappear, public prosecutors aggressively interfere in the latter’s organization and working, the web of privatization and liberalization comes close to change the social structure more deeply than the industrial boom of the late 1950s and early 1960s. In the first of the aforementioned decades, the Court seemed to engage in adjusting former trends and giving finishing touches to its own case law, keeping a low profile attitude and at the same time dedicating itself to making its reasoning more elaborated. Above all, it had to get rid of the docket overload accumulated during the Lockheed criminal trial. It took about ten years to do so. After 1985, and increasingly after 1987 under the Saja Presidency, a new internal organization and the use of work groups in charge of screening the old cases, some going back to seven years, allowed the Court to publish over 1500 judgments per year, with a maximum of 2074 in 1988. Many decisions were taken in the form of simplified orders, due to inadmissibility or other procedural mistakes leading to manifest irrelevance. Some scholars complained 65 66

Dec. 68, 69 and 70/1970, 251/1975, 16/1978. F. Amirante, Che cosa è la Corte costituzionale, Corte Costituzionale, Roma, 2009, available on the website of the Italian Constitutional Court: www.cortecostituzionale.it/ ActionPagina_216.do.

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about a minimal summary reasoning, but the work was done decently: the response by the judiciary was an increasing number of claims lodged on a per year basis, up to 1.490 in 1984, reaching a final average of about 1000 around 1992, most of them concerning very recent statutes, like the new Criminal Procedure Code of 1990 or the fair rent laws or the expropriation compensation statute, sanctioned several times of unconstitutionality and reformulated many times. Referendum requests also increased, as is probably obvious in times of political turmoil, and so did the conflicts between the Regions and the State. Nevertheless, it found the time to define important questions concerning, for instance, the overcoming of the State television monopoly,67 the protection of linguistic minorities,68 the condition of foreigners,69 eminent domain and compensation,70 the so-called right to housing71 and other social rights, such as to healthcare and transportation,72 new rights like the right to a safe environment,73 the relationship between European regulations and self-executing directives and domestic sources,74 and conscientious objection in the draft.75 Many decisions during this period concerned the building or revising of the Italian welfare system, with particular attention to retirement indemnities76 and social security,77 and to benefits to members of non-marriage families.78 Another event which became common between the 1980s and the 1990s was the trend towards entering into politics of past Presidents or members of the Court. Giuseppe Branca, Francesco P. Bonifacio, Leopoldo Elia, Giuseppe Corasaniti and others accepted to be candidates and were elected to Parliament after the end of their terms, subjecting themselves and the Court to criticism, lest their independence be undermined by politics. During the 1990s the stabilization and adjustment work went on, but the Court was also called upon to confront an increasing demand of constitutional review in the most difficult period in the history of the Republic. On the one 67 68 69 70 71 72 73 74 75 76 77 78

Dec. 148/1981. Dec. 28/1982. Dec. 215/1983. Dec. 223/1983. Dec. 252/1983 and 217/1988. Dec. 245/1984. Dec. 226/1983. Dec. 170/1984 and 113/1985. Dec. 164/1985. Like dec. 137 and 178/1986. Like dec. 266, 286 and 616/1987. Dec. 310/1989.

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hand, it had to decide the constitutionality of the new Local government act of 1990, which had significant impact on the whole of the organization of the regional structure;79 on the conflict concerning the designation procedure of top magistrates between the Secretary of State for Justice and the Supreme Judiciary Council;80 on the relationship between public prosecutors and judges in the new criminal trial;81 on the parliamentary assent to investigations against an mp;82 and on the protection of health after the diffusion of aids.83 On the other hand, the Court had to verify the admissibility of referendum requests on various occasions84 and tried to put on different premises its traditional attitude towards expenditure judgments, less and less compatible with the new exigency of reducing the public debt, the amount of which had surpassed the gdp. Finally, in the last twelve years or so, the Court has been very busy dealing with several themes. Firstly, the constitutional amendment of 2001 completely changed the regional system of government. Therefore, a new wave of controversies between Regions and the State arose both as principaliter judgments and as conflicts. Though the trend has been towards upholding previous doctrines as much as possible, it has taken much work to define the renovated balance in terms of extension of the respective legislative powers: for instance, the new sector defined competition has allowed several State interventions validated on a cross-sectional basis;85 environmental problems have also required a new umpiring activity.86 Most general regional statutes have been controlled.87 Another unusual judgment concerned the claim by the two Chambers against the Court of Cassation in order to prevent the interruption of medical assistance to a patient in state of irreversible coma.88 79 80 81 82 83 84

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86 87 88

Dec. 243/1991. Dec. 379/1992. Among several others, dec. 462, 463, 464, 474, 478/1993. Dec. 443/1993. Dec. 210, 218 and 308/1994 and 438/1995. Dec. 47/1991; 26-38/1993; 1-2/1994; 11/1995; 14-42/1997. The whole story is told by A. Pertici, I giudizio di ammissibilità del referendum abrogativo, in R. Romboli (ed.), Aggiornamenti in tema di processo costituzionale (1996–1998) (Torino, 1999). See e.g. dec. 14 and 272/2004, 80/2006 and 430/2007. See L. Ceraso, “La recente giurisprudenza della Corte costituzionale sulla “tutela della concorrenza” (art. 117, comma 2, lett. e): linee di tendenza e problemi aperti” (2005) Giur. Cost. 3447. See e.g. dec. 407/2002, 108/2005, 367 and 378/2007, 214/2008 and 315/2010. See e.g. dec. 304 and 306/2002, 306/2002, 2/2004, 372, 378 and 379/2004, ord.31 and 353/2005, dec.469/2005, 4 and 12/2006. Ord. 334/2008.

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Conflicts between powers of the State have constantly grown in number and importance, and it has been impossible to avoid deciding them as political questions or adopting other elusive techniques due to their extreme importance for the political system and the public opinion. There have been decisions concerning State secrets, like in the case of a suspect of terrorism kidnapped by Italian and American secret agents89 or in that of the works in the residence of the premier;90 cases concerning the roles of the President and the Minister of justice in the grant of pardon;91 cases relating to the transfer of judges and the powers of the Council of Magistracy;92 the controversy between former President Cossiga and the Court of Cassation about declarations of the former;93 the problems of indirect interceptions of mps and of the President of the Republic;94 the acquisition by the public prosecutors of the records of phone calls of mps;95 the legitimate impediment barring mps, Ministers, and the premier to attend criminal hearings;96 and the limits of ministerial responsibility,97 leaving aside the traditional questions about the censurability of opinions of mps outside Parliament.98 In this turmoil, the number of incidentaliter proceedings has decreased, but some new trends have emerged. Firstly, the Charter of Nice has been mentioned at random even before its formal incorporation into European law,99 and above all the echr has found a well defined and possibly final position in the system of legal sources, being recognized as able to integrate the constitutional parameter, as an “interposed” norm100 thanks to the new Article 117, 89 90 91

Dec. 106/2009. Ord. 404/2005, 124, 125, 337, 338/2007. Ord. 354/2005 and dec. 200/2006: see M. Luciani, “Sulla titolarità sostanziale del potere di grazia” (2007) Corriere giur. 190. 92 E.g. dec. 290/2007. 93 See R. Bin, G. Brunelli, A. Pugiotto, P. Veronesi (eds.), Il “Caso Cossiga.” Capo dello Stato che esterna o privato cittadino che offende? (Torino, 2003). 94 Dec. 390/2007 and 1/2013. 95 Dec. 390/2007, 188/2010. 96 Dec. 225/2001, 263/2003, 284/2004, 451/2005, 168/2013. 97 Ord. 8/2008, dec. 241/2009 and 211/2010. 98 Dec. 10 and 11/2000, 379/2003, 120/2004, 347 and 348/2004, 163/2005. About the whole story, see R. Romboli (ed.), Aggiornamenti in tema di processo costituzionale (2002–2004) (Torino, 2005), pp. 297 ff.; Id., Aggiornamenti in tema di processo costituzionale (2005–2007) (Torino, 2008), pp. 331 ff.; Id., Aggiornamenti in tema di processo costituzionale (2008–2010) (Torino, 2011); V. Tondi Della Mura, M. Carducci, R.G. Rodio (eds.), Corte costituzionale e processi di decisione politica (Torino, 2005). 99 Dec. 394/2006 and 349/2007. 100 See the aforementioned Dec. 348 and 349/2007, and also Ord. 161 and 368/2006.

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para. 1, though itself subject to constitutional review due to the “counter-limit” doctrine, protecting national democracy from outside encroachments. Secondly, the Court has emphasized the focus on the quality of legislation and the possible defects of drafting,101 not only with reference to the necessary homogeneity of the law-decrees and the abuse of them by the Government or the evident lack of their premises of urgency. Thirdly, the Court has increasingly underlined that the a quo judges must be absolutely sure before filing the question in the Court’s docket, that no interpretation in conformity to the Constitution of the statutory provision suspect of unconstitutionality is possible. All judges must make all possible efforts in reviewing the alternative meanings of the norm and choose one of them, even the only one, capable of giving the provision a sense compatible with the Constitution, because the sanction of unconstitutionality is the last resort when it has been demonstrated that no reasonable interpretation according to the constitutional text is available.102 They have to consider the law in action, as coherently interpreted by merit judges and the Court of Cassation, and stick to the most commonly shared opinion when in conformity with the Constitution. If they follow a different method, and try to use the Court as a guide, asking it to state which is the best interpretation, the claim might be declared inadmissible. The law in action, or “living law,” and its use become the dividing line between admissibility and non-admissibility of the incidentaliter claim. Finally, the Court has had to manage a growing number of referendum requests, more and more complicated and often assuming a manipulative attitude, i.e. not simply aiming at the abrogation of a statute or of some of its provisions, but trying to clip words or phrases in order to obtain quite a new law, the meaning of which is far from the original one.103 Such an approach requires a very careful handling and the elaboration of sophisticated devices on the side of the Court, though the electorate is becoming tired with frequent consultations, so that the minimum turnout prescribed by Article 75 of the Constitution, i.e. the majority of voters, is reached on less and less occasions. During the republican experience, the Constitutional Court has represented much more than an authoritative interpreter of the Constitution.104 Of course 101 See e.g. dec. 182/2007. 102 Among many judgments, see e.g. 245, 250 and 252/2005, 209, 244, 280, 324/2006, 369, 392, 396, 464/2007, 154, 155, 226/2008, 317/2009, 3, 197/2010. 103 Like in Dec. 31-51/2000, 41-46/2003, 24-25/2004, 45-49/2005, 15-17/2008, 24-29/2011, 174/2011. 104 In the words of M. Rosenfeld, “Constitutional Adjudication in Europe and the United States, Paradoxes and Contrasts” (2004) 2 Int.J.Con.L. 633.

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it has been the judge of first and only instance in constitutional review and has carried it out in a quite extensive manner.105 In this capacity, from the very beginning it has applied the typical syllogistic and deductive method of the confrontation between constitutional parameter and ordinary statute, which is common to all constitutional tribunals in civil law countries. But it has also had to persuade public opinion and stakeholders of the Italian political life that a new subject was on the stage and deserved respect and cooperation. To achieve such a goal it had to refrain from emphasizing the political implication of its functions. During that effort, it was able to elaborate a cluster of types of decision which were assumed as models by many other European constitutional tribunals of its generation and of later ones. The only kind of judgment it did not create nor imitate was the German decision that defers its own application to future dates, moulding its prospective content. Immediately after conquering, first in Europe, it had to settle a reasonable coexistence with no less than two transnational Courts, on their way towards the expansion of their role. While it was working on this aim, it succeeded in playing the part of a body capable of correcting malfunctioning and mistakes of the system, that of a counter-power in conflict or in tension with the others. It took time and effort to persuade a judiciary that was not accustomed to any binding effects of precedents to help build up a living constitution together with the Court. The same difficulties the Court had to overcome in persuading Parliament to accept its role of “parallel legislator,” with a capacity to admonish, to solicit, to persuade, sometimes to impose. It has had fewer problems solving confrontations with the President of the Republic, with a few exceptions, such as during the Cossiga term, while full cooperation has been recently reached with Ciampi and Napolitano. During this evolution, the Court has been variously defined as regulator of social conflicts, supreme moderator of all balances, superparliament, permanent constituent assembly, and a clearinghouse of the other powers.106 In fact it has played a vicarious role, supplementing other powers or bodies when it was necessary, mainly in moments of crisis or of evolution of the institutional system. This supplementary function has been carried out most of all toward Parliament, when it was too busy or too “sleepy” to handle themes that needed new regulations or update of existing rules. In doing so, there were periods when it had to map out a route and walk ahead of Legislature and Government, 105 To use the language of M. Rosenfeld, “Comparing constitutional review by the European Court of Justice and the U.S. Supreme Court (2006) 4 Int.J.Con.L. 618. 106 A summary of these doctrinal positions in S. Rodotà, “La Corte, la politica, l’organizzazione sociale” (1982) Pol.dir. 170.

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and other seasons during which it was better to apply passive virtues and let other bodies find the way to politically shared solutions. From this viewpoint, its experience has not been too different from that of the US Supreme Court, notwithstanding its nature of court of general jurisdiction in a common law framework.

PART four Relations between the Judiciary and the other Branches of Government

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Chapter TWELVE

The Scope of Judicial Review and the Rule of Law Between Judicial Restraint and Judicial Activism Sir Louis Blom-Cooper QC1,* I

Introduction: Judicial and Judicious Review

As a desiccated English barrister, I am conscious of both the contemporary debate in the UK between a judiciary engaged in the growth industry of judicial review of administrative action that irritates, not a little, the political administrators, and the issue here. It is a constitutional struggle that centres on the Rule of Law. It would be inappropriate for me, therefore, to dwell upon the impact of judicial review on the constitutional independence of our UK judiciary, when we are acutely aware of what is happening on the other side of the Atlantic over the subject of constitutionalism. A year ago the retired Justice John Paul Stevens argued persuasively against the academic (and perhaps politician and practitioner’s) cry for a national convention to review the US Constitution. I fancy that the availability of amending the Constitution in the 21st century lies at the heart of the political problem. And only last week Professor David Cole wrote in the New York Review of Books against the academic suggestion that you should throw away a famous constitution and start again. It is all heady stuff that boggles the philosophical mind, and is better left to public debate and not for outsiders to confuse the plot. But at least what I can do is to observe generally a number of points about the scope of judicial review in a democratic society displaying an increasing desire for more transparency and fairer adjudication of social issues. So here goes, leaving the written constitution for later thought.

1 [1929] 1 Ch 602 at 624. * Sir Louis Blom-Cooper QC was called to the Bar by the Middle Temple in July 1952, and was made a Bencher of the Inn in 1978. He took silk in 1970, and was a Deputy High Court Judge from 1992 to 1996, as well as a Judge of Appeal in the Court of Appeal of Jersey and of Guernsey from 1989 to 1996. Publications include Final Appeal: A Study of the House of Lords in its Judicial Capacity (1972), co-authored with Gavin Drewry, The Court of Appeal (2007), with Gavin Drewry and Charles Blake.

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Much has been written about the comparison between the written and unwritten constitution. I venture to think that recent events have in two major respects brought us closer together; they are worth mentioning. First, the sovereignty of parliament in the Diceyan fashion is no longer persisted with. My own view is that it was already a misinterpretation of Montesquieu in the 18th century. We never had a ‘separation of powers’; it has always been a separation of functions, a distinction of shared powers, in which the phrase, judicial restraint, is the buzz word. The unanswered question is where is the line of distinction drawn? Since at least 1972 (when Parliament took us into the Common Market) we derive powers from Brussels. Second, this and other events (like devolution) have effectively been political issues transmuted into becoming legal issues, fought out in a public-judicial forum. The UK enactment of the European Convention on Human Rights in 1978 provoked and stimulated a judiciary keen to sharpen its tools over government. II

The Origin of Judicial Review

It is helpful to study where the concept of judicial review came from. It has a very English origin that might be worth renewing on both sides of the Atlantic. But before I do, there is one observation to note. It is assumed that British judges have always functioned against an unwritten constitution, and therefore had no experience of a case where the judiciary could countermand legislative action. This is not strictly true. Over the years after World War II when colonial territories gained their independence from the mother country, the English judiciary commonly heard appeals from territories whose final court of appeal was the Judicial Committee of the Privy Council. In two decisions in the 1970s, local legislation aiming to usurp the function of the criminal jurisdiction were held to be unconstitutional. The cases implied that the intervention of the courts in law-making could be properly based on the dual principles of fairness and good government. Judicial review began its statutory life in England only in 1981, and then, in a peculiarly English way, it spoke via delegated legislation, the well-known Order 53 of the Rules of the Supreme Court. That body of lawyers declared that thereafter an application for judicial review encompassed the established prerogative orders (originally, until 1881, ‘writs’ issued by the High Court in the name of the Crown as head of state – hence the unbroken link in the chain of judicial review). It certainly gave power to the judges to control inferior tribunals. Does it give control over other administrative agencies? If that is problematic (which I think it is) it calls for some research into

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the forensic activity of earlier years. By the end of the 17th century, lawyers in the American colonies were familiar with the concept of certiorari, the most applied writ from the courts. It must be remembered that it was in the middle of the 1700s that the constitutionalism of that era was beginning its democratic structure; by the end of the century came the breakaway from the oppressive English and the dynamic of 1776 and all that has followed. But what was happening back in the old country? The judicial hero of that time was the great Lord Mansfield who, by common consent, was the architect of the commercial law where he fashioned the legal system; he was not renowned for his creation of any administrative or public law. Professor Dicey at the beginning of the 20th century said, justifiably or not, that England knew no such legal animal; leave that to the continentals in their adherence to the European philosophical school, Montesquieu and de Tocqueville. But prerogative writs were alive and kicking – not just habeas corpus. In 1762 there is a report of a case involving an appointment to a public office, called R v. Barker.2 It is a short – (for those days mercifully concise and clear) – judgment of Lord Mansfield. On my reading of it, it says that if an individual is declared to establish a right, the courts must give him a remedy – ibi jus, urbi remedium. Furthermore, if necessary the courts will grant him mandamus, a prerogative writ. It will do so if the remedy needs to be based on the twin principles of fairness and good government. Is there, in that judicial pronouncement, the genesis of judicial review of the administrative action – ministerial or departmental unlawfulness? I leave it to you to give the answer to the beginnings of public law in the Common Law of England. III

Separation of Powers

All Western liberal democracies, with their commitment to the Rule of Law, are based on similar constitutions, whether they are written or uncodified. They share roughly the same fundamental values of government, of which there are three arms – legislature, executive and judicature. Ever since the early 1740s, when Montesquieu devoted a whole chapter in his De L’esprit des Loix, misunderstandingly to the English constitution, commentators have universally adopted, without analysis, the phrase ‘the separation of powers’. This then was an unhelpful exaggeration, gained from the French experience; 2 (1762) 3 Burr. 1265.

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governmental powers are always shared, if originally by modern standards disappointingly between the three arms, and are infinitely more widespread and overlapping now. The revised analysis of separation has always been, not of powers but institutional. In his collection of essays on The Business of Judging,3 Lord Bingham concludes that our constitutional arrangements ‘reflect no slavish adherence to the doctrine of the separation of powers. But there are some clear and generally accepted lines of functional demarcation’. By 2014 it could be said that the doctrine is only of historical interest; a better word for ‘functional’ would be ‘institutional’. All three institutions expressing their powers of government distribute them among the three, all aiming at the ultimate goal of good government. The distribution of government powers was never ‘separate’; their boundaries vary from time to time and form the subject of this essay. In the development of the prerogative writs in the 17th century, there emerged in court proceedings a distinct wish of the judiciary cautiously to exercise governmental powers. In the middle of the 18th century, Lord Mansfield asserted that mandamus ‘ought to be used for all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one’. It was in R v. Barker in 17624 that he explained that these writs were collectively prerogative writs (later called orders) because of their intimate connections with the rights of the Crown, by which time each prerogative writ had developed its own characteristic to establish judicial review of administrative actions. And Lord Mansfield added (at p 1268): ‘Within the last century it [the prerogative writ] has been liberally interpreted for the benefit of the subject and advancement of justice’. Thus the creation of Order 53 of the Rules of the Supreme Court in 1883 carried over the court’s powers to control governmental action. This constitutional structure was not interrupted in England; it became entrenched in 1986 in a judgment of Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment:5 ‘Judicial review is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon this exercise of their beneficent power’. It found its written counterpart in the constitutions of British colonial territories, which give overriding powers for ‘peace, order and good government’. It was judicially recognised in two 20th century cases in the Judicial Committee of the Privy Council.

3 2000, at p 342. 4 (1762) 3 Burr. 1265. 5 [1986] AC 240.

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The institutional separation was best espoused by Lord Diplock in R v Hinds,6 a majority decision in the Privy Council in an appeal from the Jamaican courts. He held that the country’s Constitution prevented its legislature from establishing a special court to try certain firearms offences (called a Gun Court) which could exercise powers during the pleasure of the Governor-General on the advice of a Review Board of whom only the chairman was a member of the judiciary. He said that ‘whatever is implicit in the very structures of a constitution in the Westminster model…is that judicial power is to continue to be visited in persons appointed to hold judicial office in the manner and on the terms laid down in the chapter dealing with the judicature, even though this is not expressly stated in the Constitution’. This statement, never seriously questioned, had been firmly endorsed by Lord Pearce in Liyanage v The Queen,7 cited by Lord Diplock at the end of the passage in Hinds. The Ceylon Act of 1962 – the colony of Ceylon achieved independence as Sri Lanka in 1971 – contained substantial modification of the Criminal Procedure Code, by purporting to legislate ex post facto the 60-day detention of persons for offences against the state by indicating classes of offence for which a jury trial could ordinarily be ordered; the issue was whether the 1962 legislation was an unconstitutional law for Ceylon. The presiding judge, Lord McDermott (later the Lord Chief Justice of Northern Ireland) had stated, unchallenged in arguendo, that ‘judicial functions were intended to be vested in the judiciary’. Lord Pearce demonstrated (at p 284) that, in the Board’s opinion, the power to make legislation was given ‘for peace, order and good government’. This was based on all the pre-independence British colonies who were empowered to enact laws. He discussed the use of the doctrine of the separation of powers, and added ‘but there was a recognised separation of functions’; and that ‘the Act involved usurpation and infringement by the legislature of judicial powers inconsistent with the written constitution of Ceylon. The judicial system, therefore, was untouched’. It has been untouched ever since. If such Acts of Parliament are ever to be held unconstitutional, or declared incompatible, the judicial power could be effectively absorbed by the legislature by reversal of the judicial decision, thereby being taken out of the hands of judges. The Rule of Law exceptionally demands no less. The Human Rights Act 1998 confirms the constitutional infrastructure of modern democracy. Whatever Westminster ordained constitutionally, the innate doctrine of incompatibility in the 1998 Act established the primacy of the judicature as a governing institution. The judicial function is thus entrenched. 6 [1977] AC 195 at 215. 7 [1967] 1 AC 259.

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The modern democracy encompasses not just obligations and powers, but establishes institutions to give effect to them; they are organisations with their own independent authority and the ability to share powers intrinsic in other institutions of government. Lord Bingham put it pithily in Pretty:8 a court of law is not a legislative body, but is institutionally judicial. The court cannot create a legislative act, but in terms of the distribution of powers among arms of government it can make law. IV

Parliamentary Sovereignty

It has been my experience as a practising barrister from the 1960s onwards that the academic discussion about parliamentary sovereignty and its doctrine of the separation of powers has never fallen from the lips of the judiciary. Even in a recent commentary in Public Law (the December issue of 2012), discussing the famous gchq case, did no more than reveal three of the Law Lords agreeing that the government exercise of its prerogative power was judicially reviewable by the courts, while the other two thought that the power, by virtue of its notice, was not reviewable. This was not a rehearsal of the separation of powers but the correct distribution of that power. I was personally involved in that case – appearing as counsel for the trade unions – and I do not recall any of the academic literature being cited in the relevant quotes by their Lordships in the various judgments. I had invariably based myself, from my earliest days at the Bar, on the apt remarks made by O’Brien J in the Irish Supreme Court in Buckley and others (Sinn Fein) v. Attorney-General and another,9 that ‘the manifest object of this Article [Article 6 of the Irish Constitution of 1937] was to recognise and ordain that, in this State [which followed the Westminster model] all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive and judicial organs of the State and to require that those powers should not be exercised otherwise’. So it was thought throughout my career, until Lord Sumption, in the F A Mann lecture for 2011, asked the contrariwise argument, whether it is ‘a fundamental question about the relations between the judiciary and the two political arms of the State, the executive and the legislature’, and answered rhetorically, ‘how far can judicial review go before it trespasses [italics supplied] on the proper function of government and the legislature in a democracy?’ It is the first time that the separation of powers has 8 [2002] 1 AC 800. 9 [1950] 1 IR 67, 81.

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been thus articulated in the form of an institutional divide among the three organs of government. Distribution of governmental powers (as I shall show) has never rested upon the institutional separation of the arms of government. The unanswered question is what that distribution of powers should pertain at any time. Has there ever been a dividing line between the organs of government in which it could be said that the ownership of powers could not be trespassed upon? Even before the advent of a distinct English administrative law via judicial review in the 1960s, and the establishment of the Human Rights Act 1998, there has been in practice no effective separation of powers, in three separate legal developments. It is trite law to say that Parliament makes the law, the courts give effect to that law. In practice, law-making is a shared occupation in a number of ways. The courts do not simply enforce the laws on the statute book, but are actively involved in their interpretation. Where, as is often the case, the statute is ambiguous or obscure in its parliamentary language, the courts will seek to find the intention of Parliament by interpreting the statute, sometimes (often) years after the statute has first appeared. Time alone requires protective action in the courts, while Parliament fiddles. Any statute must, by definition, be ambulatory and require replenishment meanwhile. It will be conditioned by both time and space. Here the courts are recognisably the secondary legislators. That quite apart, any decision of the courts ‘makes law’. As Lord Reid stated extracurricularly at the sptl conference in 1972, no one nowadays believes that judges do not make the law; such a thought is like Alice in Wonderland. Similarly Lord Radcliffe pooh-poohed the notion that judges do not make the law. They palpably do. No one suggests otherwise. The Common Law of England, moreover, proceeds upon the assumption that, barring increasing statutory intervention, it can act like a legislature. When in the case of Shaw in 1962 the House of Lords established the right to create a law of morals and many years later affirmed Lord Lane CJ’s decision to render husbands liable of rape against their wives, the judges were engaged in making new laws. And anyone reading the speeches of the Law Lords in AttorneyGeneral v. Jackson cannot avoid the contemplation of the Common Law in action at a future date. The judicature alone cannot be expected to bear the whole burden; as the late Arthur Chaskalson, Chief Justice of South Africa, said: Courts cannot be expected to carry the full burden of what might be required. In a democracy parliament and civil society [the legislature and the executive] are also defenders of the rule of law and it is essential that they should play their part in its protection.

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and Lord Bingham in his Rule of Law claimed that was what makes the difference between good and bad government. V

Judicial Review and Judicial Creativity

The development of an English style of administrative law in the 1960s marked a clear case of judicial creativity. By amendment to Rule 53 of the Supreme Court Rules – written incidentally by the legal profession through its Rules Committee – the courts were able, English-style, to fashion the ancient prerogative writs (later, orders) into an application for judicial review. Since then the judges, with no assistance from the legislature, have developed the greatest growth industry in our legal system. This was achieved by the exercise of legalistic growth of the Common Law. If judicial review has not transformed the legal landscape, the Human Rights Act 1998 gave further impetus to the judicial power to exercise extensive powers over civil authorities. After 2000 the courts were empowered to declare any acts or decisions by Ministers and civil servants as incompatible with Articles of the European Convention on Human Rights and Fundamental Freedoms. Incompatibility was an open invitation to the legislature to reform the violation into legislation that would render the law compatible. The compromise with parliamentary supremacy in legislation was ingenious. It affirmed the constitutional arrangement of apportion of powers, not their separation. The courts’ powers to engage in law-making were not limited to activity as a secondary legislature, as indicated. A deluge of litigation, delegated by Parliament to respective Ministers, rendered such delegation supervised by the courts. Judges were able to declare the statutory instrument, drafted by ministerial officialdom, as ultra vires the primary legislation, thus conferring a further control by the courts of the scope of Parliamentary legislation. None of this answers the question: what then are the limitations on the power of the courts over acts of government? Is there such a thing as a judicial restraint that operates to restrict the ambit of judicial power over executive and (in certain circumstances) legislative actions? If so, where is the boundary line to be drawn? The question is often asked, and never given a definitive answer. It was first discussed in the House of Lords in the Fire Brigade case in 1987 – most informatively in the dissenting judgment of Lord Mustill. The judgment of Lord Mustill in 1984 (the date is important) in R v. Home Secretary, ex parte Fire Brigades Union – the fact that it is a dissenting judgment is of no consequence, since it accords with judicial expression of the need to observe the precise nature of our constitution – is of immense significance.

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If, on the face of it, it discloses a traditional approach to our constitutionality, on close analysis it bears usefully in the present-day view of the constitution. His opinion (actually it is a peroration) suffices to explain the purpose that lay behind 300 years of developing democratic rule. I quote the words of Lord Mustill: It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain.10 While the phrase ‘sovereignty of powers’ is the familiar expression of the lawyer and the constitutionalist, the use of the final word ‘domain’ is instructive. The separation is of all three. It is thus institutional, not a matter of their functioning. The word does not purport to express any operational or functional activity of the institutions. It is heritable property held in possession, lands or dominion. It is an institution, an area of influence or rule. The meaning of the sentence is that all three parts of the constitution are separate institutions while their powers (as I will demonstrate) are shared and not distinct or discrete. No dissociation of the two ‘political’ arms from the judicature (presumably, but inaccurately described as non-political). They are all three concerned with ‘good government’; the fact that the trio are complementary in membership (Parliamentary and executive officers) and the third unelected is of no significance in terms of their functioning. The three are institutionally separate: their powers are complementary. What those powers constitute is for professional discussion in 2014. Lord Mustill then explains the separate functions of the three institutions in familiar traditional form, and adds that ‘it requires the courts on occasion to step into the territory which belongs to the executive [institution], to verify not only that the powers asserted accord with the substantive law created by Parliament but also that the manner in which they are exercised conforms with the standards of fairness which Parliament must have intended [fairness or proportionality being a power shared by all the branches]’. He ends the paragraph with the words ‘…it is the task of Parliament and the executive in tandem, not the courts, to govern the country. In recent years, however, the employment in practice of these specifically Parliamentary remedies has on occasion been perceived as falling short, and sometimes well short, of what was needed to bring the performance of the executive into line with the law, 10

p 567D of [1985] 2 AC 513.

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and with the minimum standards of fairness implicit in every Parliamentary delegation of a decision-making function’. And then there is added: ‘To avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers the courts have had no option but to occupy the dead ground in a manner, and in areas of public life, which could not have been foreseen 30 years ago’ – a description of the residual powers in the Common Law. That clear allusion to the development of administrative law by Lord Reid and his colleagues in the 1960s demonstrates the pre-existing separate institutions, but their separate powers lay fallow and uncultivated, if not actively dormant in the previous years. The need now (as we shall develop) is some guidance as to the proper distribution of the powers of government as properly allocated to the three institutions. VI

The Challenge of Demarcating the Boundary Line between Executive Action and Court Intervention

Absent a written constitution that marks out the boundary line between executive action and court intervention in the exercise of the powers of government, is the prime occupation of the distribution of powers. Lord Mustill concludes his observation of the unwritten constitution by stating – preHuman Rights Act 1998 and devolutionary powers – that the political and social landscape has changed beyond recognition, but the boundaries [note the plural] remain; ‘they are of crucial importance’. What then are the boundaries of power that are not separate but complementary in 2014? The best reason for the development of the Common Law, acting as a secondary legislature, is the case of Jones v. Kaney.11 It is a good illustration of the duty of a judge (particularly an appellate judge). As Benjamin Cardozo explained graphically in the 1930s, a judge must be both sensitive of precedent and be creative (I much prefer the term ‘creativism’ to ‘activism’. Who wants a judge to be inactive?) At least Lord Cooke (the distinguished New Zealander who sat in the judicial House of Lords) said that he had a positive distaste for ‘activism’, which he described as ‘a term of dubious import but often having a connotation of remedy’. I have cited in extenso the remarks of Lord Dyson MR on his observation in the Supreme Court in a separate assenting judgment, simply because of his willingness (with others) to alter the law of immunity for legal liability of expert witnesses before the courts, without more ado. The two out of seven 11

[2011] 2 AC 398.

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dissenters in Jones v. Kaney – Lord Hope and Lady Hale – were disposed to the change in the law, but only after acceptance by Parliament of the immunity of witnesses, often orally, in the courtroom. Lord Dyson was absolutely right in his mild and decorous denial of such a judicial function of such deference to Parliament. Good government of these domestic issues demands a trilogy of powers that includes a principle of parliamentary primacy in law-making which, properly constituted, leaves certain policy issues to Parliament to decide. But the mere incantation of parliamentary supremacy in law-making is far from absolute. It requires a judicial reasoning for foregoing the parliamentary powers – at common law at least – to override the activities of higher judiciary. What are the distinctions of these powers of law-making? I deal here only with the question of delay that accompanies actions from Parliament. Ever since 1554 in Buckley v. Rice-Thomas12 English judges have treated the expert who gives advice only on technological or scientific matters as witnesses per se, and alike for immunity from suit for what they say in the witness box (and probably preparatory to such testimony). Whether this was historically correct has been doubted. Whether relevant today, the fact has been that for four or more centuries, experts have been treated as the same as witnesses. Throughout that period Parliament has not pronounced upon the matter. It took 30 years even for the courts themselves to reverse the rule in Rondel v. Worsley in which I unsuccessfully sought to remove the immunity of barristers for what they said in the course of legal proceedings, although Lord Lowry in 1994 in Spring v. Guardian Mutual Assurance12 said that he could not understand why my argument had not been accepted. The fact is that the immunity for those acting in the courtroom had not been the subject of parliamentary activity over a number of years. VII

Inactivity of Parliament on Expert Evidence in Criminal Proceedings

I gave examples of how the activities (or inactivities) of Parliament, often prompted by political decisions, should not, in themselves, constitute deferment to Parliamentary discussion, debate and decision-making. The reasons, good or bad, for non-activity of Parliament should never be regarded as good government. The courts themselves, in considering passing the buck to Parliament, must take account of the passage of time that is the inevitable 12 13

1554 Plowden 118. [1995] 2 AC 296.

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consequence of legislative action at primary instance. The two examples I give are to the point. Barbara Wootton once wisely remarked that one should give at least two examples for any generalisation – so here goes! The first example is that of Jones v Kaney. For some years now – quite apart from its origins in the 16th century – Parliament has been made aware of the deficiency in the expert witness system. Both of the bodies of the Academy of Experts and the Expert Witness Institute since the 1980s have pointed out the problems of expert witnesses. Yet Parliament chose not to adjudicate upon the matter, until Jones v Kaney came on the scene. Even then the Supreme Court seemed nervous of the activities that were going on. Without expatiating on its origins, the subject of the admissibility of expert evidence in criminal proceedings in England and Wales arose in a consultation paper from the Law Commission (No 190) in 2009 and its final report (No 325), together with a draft Bill of some eleven clauses and one Schedule to the House of Commons on 21 March 2011. The closing date for agreement on the report was 20 February 2011. The judgments in Jones v Kaney (amounting to 190 paragraphs) before the UK Supreme Court were delivered in January 2011. The draft Criminal Evidence (Experts) Bill would give authority to enforce principal recommendations. The relevant department, the Ministry of Justice, has declined, so far, to recommend to Ministers that primary legislation is required: instead they insist that the recommendations can be implemented administratively. The Law Commission view is that nothing short of primary legislation will suffice. The dissenters in Jones v Kaney seemed unaware of these promptings from the Government’s chief law reform agency. Had they been aware of these administrative talks they would have been in a better position to judge whether the simple legislation dealing with the admissibility of expert evidence in criminal trials should be legislatively enacted, before concluding that Parliament should first consider the policy issues posed by Jones v Kaney. The Supreme Court, in Jones v Kaney, had to decide whether to abolish the rule that a witness could not be sued in negligence by his client. The case was a classic instance of rival views about judicial restraint on non-governmental legislation. The justification for the immunity accorded to lay witnesses is long-standing and is based on policy considerations which are well understood. The immunity enjoyed by expert witnesses from liability to their clients had also been established, although it was a less well entrenched principle, even if its origins were misunderstood historically. The majority of the Supreme Court held that the immunity could no longer be justified, in the public interest. It was absurd to think that the courts should await protracted action by Parliament. They were not persuaded that, if experts were liable to be sued for

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breach of duty, they would be discouraged from providing their services at all; or that immunity was necessary to ensure that expert witnesses give full and frank evidence to the court; or that diligent expert witnesses would be harassed by vexatious claims for breach of duty; or that the removal of the immunity would engender a risk of multiplicity of suits. The dissenters took the cautious and ‘non-activist’ line. Lord Hope said that the lack of a secure principled basis for removing the immunity from expert witnesses; the lack of a clear dividing line between what is to be affected by the removal and what is not; the uncertainties that this would cause; and the lack of reliable evidence to indicate what the effects might be, all suggested that the wiser course would be to leave matters as they stood. Lady Hale saw the proposed abolition of immunity as an exception to the general rule that witnesses enjoy immunity from suit. She asked rhetorically how far the exception should go. Did it cover all classes of litigation? In particular, how far beyond ordinary civil litigation did it go and did it cover all or only some of the witness’s evidence? It was impossible to say what effect the removal of immunity would have, either on the care with which the experts give their evidence, or on their willingness to do so. It was not self-evident that the policy considerations in favour of introducing the exception to the general rule were so strong that the court should depart from previous authority to make it. It was ‘irresponsible’ to make such a change on an experimental basis. Issues that affect the process of litigation call for judicial action, and not to await policy issues that are politically neutral. There is another, essentially human, factor at work. That is judicial temperament. It is an inescapable fact that some judges are more traditional in their approach than others. As Lord Dyson MR said on 6 November 2012 in the annual lecture for alba, ‘some are cautious and prefer to paddle in the warm and safe shallows of clear precedent. Others are more adventurous and are prepared to give it a go in the more treacherous waters of the open sea…But history has shown that the product of today’s buccaneer sometimes becomes tomorrow’s orthodoxy’. We need both varieties, but must not spurn the advocate who displays a vision of better government tomorrow. .

VIII

Parliament Inactivity on the Offence of Homicide

The second example is the more telling and socially important. It involves the basis of our law on homicide. As long as 20 years ago, Lord Mustill began his judgment referring to the English law as ‘a conspicuous anomaly’ and went on to explain that the law was ‘permeated by anomaly, fiction, misnomer and

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obsolete reasoning’. But he looked to Parliament to remedy the situation. ‘I am willing to follow old laws until they are overturned, but not to make a new law on a basis for which there is no principle’. Lord Mustill reaffirmed his statement five years later when he said: ‘Only Parliament has the powers, if it will choose to exercise them. It may not be a popular choice, but surely it is justice that counts’. He might have added the words extracurially uttered by Lord Devlin who once said in his book Judges as Lawmakers that ‘…it is for Parliament to change the law. But these protestations ring hollow when Parliament has said, as loudly as total silence [and even with expression] can say it, that it intends to do nothing at all’, and even says it by proclaiming that nothing will be done. What happened then? The Government, no doubt spurred on by such demands for legislation, referred the defences to murder to the Law Commission in 2003. The report ultimately provided the answer, but stated that the legislation could be complete only if the whole of murder and manslaughter were referred for legal reform. After much prevarication the Law Commission was, very restrictively, given terms of reference, including no question reviewing the vital distinction between murder and manslaughter; nor was the penalty to be discussed. Given these restrictions, the Law Commission produced a valuable legal document which prompted a limited reform of the law. Despite a viable form of appeal, which attracted some assents and some dissents, the Government dithered, and ultimately rejected the limited response, after any other reply. Instead in the legislation of 2009 – the Coroners and Justice Act of that Year – it half-heartedly amended the partial defences to murder, those of diminished responsibility and provocation. The former made modern sense, the latter was a convoluted alternative of ‘loss of control’ to replace the outdated version of provocation. But what of the substantive law, which represented publicly a ‘mess’? Since then the rest has been anything but silent. Lord McNally in the House of Lords on 10 March 2012 announced that the Coalition Government has no present intention of responding to the Law Commission, or proposing changes in the law of homicide. And in its 11th report in 2012 the Law Commission itself has abandoned any immediate proposal to look at the subject again. IX

Judicial Restraint

Judicial restraint is one of those familiar phrases that is full of meaning and in practice determines too little substance. It has its place, but needs to be used wisely. It depends on the emanation of the precise sense: does it come from a

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judge to explain his attitude to parliamentary or governmental action? Or is it implicit in a historical attitude towards judicial adjudication on a statutory provision or executive action that insists on the essence of social policy? Commonly enough there is a recognition of the task of Parliament and the Executives in tandem with the courts, to govern the country. To do otherwise is to proceed to a state of unwarrantable intrusion by the courts into the political field, and thereby a usurpation of the function of Parliament. But the popularism of that eminence is, I venture to think, no longer the proper view of their relationship. Nowadays, increasingly frequently, the emphasis is on ‘the relative institutional competence’, a phrase that has more creative possibilities than the ‘separation of powers’. It has been best described by Lord Bingham in A v. Secretary of the State for the Home Department:13 The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions. It has the great merit of being based on an articulated awareness of the contribution each of the institutions of good government can make to constitutional checks and balances. To close one’s eyes to the frequent inactivity, not to say impotence, to the activities of Parliament (often dictated by political whimsy and motivation that does not induce good government) is not an adequate response of the judge. The instant case in the court of law must always operate; it defends initially the individual against the State. It depends for its constitutional effectiveness on the existence of the restraints within Parliament. Absent parliamentary restraint, judges operate a constitutional logic for a rule that intrudes on behalf of the individual. And the citizen expects that the powers of the State are shared among the constitutional institutions according to the nature of the exercisable powers. What should be the principles of judicial restraint? Nothing generally should be barred from judicial restraint, if only because any remedy against 14

[2005] 2 AC 68, 102.

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the legislature or the executive would be simply ‘think again’. Such was confirmed by Section 2 of the Human Rights Act 1998. Judicial restraint, however, may be properly exercisable so long as the judiciary acts upon empirical evidence that is prescribed to it. Too much of latterly judicial action is based, not upon empirical evidence, but on opinions of public attitude that are insufficiently fact-based. An example from one High Court judge last June who ruled in a case testing a privileged occasion of a defence to a libel action. The judge expressed as his reason the view that there was a publicly-espoused confidence in the criminal justice system; and added, without any factual evidence at all, that a prosecutor’s statement diminished (as opposed to enhanced) public respect for that instrument of criminal investigations. Courts of law are decision-makers on factual material and are not formers of opinions or attitudes. These are matters for politicians and the rest of us to express through democratic institutions. Financial aspects of policy and other administrative decisions are made on the basis of finite funds and a proper distribution of funds; courts are generally not a party to issues over financial matters. But other policy issues are not aptly described as ‘political’ matters unsuitable for courts of law where the latter have sufficient evidence to make decisions. Courts, if adequately informed, are as much political as are other institutions in society. Fairness (or what used to be called ‘natural justice’, and may be equated with disproportionality) now seems to dominate the scene of judicial intervention, although so far the courts have not yet fully grappled with a concept that has eluded adequate analysis. It was best described by Lord Nicholls in Miller v. Miller in 2006:14 Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next. X

Judicial Role in Statutory Interpretation

Much of the problem focuses on the construction of the statutory power of parliamentary language. Until 2000 the rule of statutory construction was the 15

[2006] UKHL 24, at para 4.

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literal rule, that if the words used by Parliament were quite clear they must be applied, even though the result would be absurd or undesirable. The result of the application of this literal rule was that judges tended to look for the intention of Parliament, as if the parliamentarians put their heads together to form an overall state of mind. A classic example of this approach came in 1985 (a pointer to the last two decades of the century) in R v. Hillingdon Borough Council, ex parte Puhlhofer15 which concerned specifically the local authority’s duty to house the unintended homeless under the Housing (Homeless Persons) Act 1977, the first personal housing legislation. The question was: does the ordinary (intended) meaning of the word ‘accommodation’ apply, even though the place which he is thereby compelled to occupy is so lacking in cooking and washing facilities that he is compelled to eat out and to use a locally-provided launderette for washing his clothes? The ‘accommodation’ may not be, by reason of its size, capable of accommodating a person, together with others who normally reside with him as members of his family; such a place would not usually be described as ‘accommodation’ in any meaningful sense. The Court of Appeal (three judges gave lengthy separate judgments arriving at the same conclusion) and the House of Lords in which a single Law Lord gave the acceptable answer that Parliament’s intention could not be for ‘appropriate’ or ‘reasonable’ accommodation that Parliament had deliberately not used. The trial judge – Mr. Justice Hodgson, a wise and humane judge who took a purposive view that a sensible legislature would seek to apply good grammar and government – held otherwise. The reversal of his ruling by eight judges stuck firmly to the literal rule and held that ‘accommodation’ could not be qualified by the use of ‘reasonable’ or ‘acceptable’ accommodation such as to impute a single, meaningful word to ‘accommodation’, because it might in certain circumstances pertaining to the applicant be unfit for habitation. It might be a misuse of language to describe Diogenes as having occupied accommodation within the meaning of the 1977 Act. A tub was good enough, according to the Law Lords, for someone to live in the civilised standards of the 20th century. It is difficult, if not impossible, to be critical of the eight superior intellects if the starting point for the exercise required in the interpretation of statutory  language is the primacy, if not superiority, of Parliamentary language. Apart from one critical observation (made hereafter) the higher court judgments (all models of their existing genre) sought by logical reasoning to find that Parliament could not have meant to exclude the personal qualification. 16

[1986] AC 484.

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If it had, would it not have inserted the qualification? They stressed, not unnaturally, that this was the first occasion on which the elected government had engaged in housing legislation, a factor of novelty in the search for modern intervention by the State in personal affairs. But if the approach was not that of an interpreter of the legislation, without regard to the Rule of Law which imparted a sense of humanity towards the public’s need for reasonable housing, then the Law Lords could not be faulted. There was some satisfaction from the proponents of Mr Justice Hodgson, that in the Housing and Planning Acts 1986 – the year after Puhlhofer – Parliament promptly disclosed its true hand by reversing the Law Lords. So much for parliamentary intention, or the literal rule of statutory construction of the 1977 legislation! XI

Conclusion: The Scope of Judicial Review

What particularly disturbed the commentators of that period was the Law Lords’ dampener of the concept of judicial review. Put aside the Lord Chancellor’s desire to curb the use of judicial review by the instrument of limiting the time for applying and reducing the scope of the remedy, by filtering out of the system of access the cases that are insufficiently arguable. Through Lord Brightman’s single judgment they said, with vigorous endorsements, that they were ‘troubled by the prolific use of judicial review for the purpose of challenging the performance of local authorities in their function’, and no doubt (for the time immediately thereafter) they would have included central government activities in their injunction. But all that changed in the 21st century with the arrival of the Human Rights Act 1998. Not only did that Act reinforce the use of judicial review, it also encouraged the judiciary to view its new-found functions of elevating human rights and fundamental freedoms from its international law perspective by determining ‘as near as possible’ the compatibility of those rights with English legislation. Events were thereafter (if not before) assumed to share, in dialogue with executive government and legislature, the burden of good government. Lord Bingham’s 2011 book, The Rule of Law, was the beginning of the shared responsibility. In the 1990s, as a Deputy High Court Judge, I heard a number of judicial reviews in the homeless person legislation, which was overtaken by the Housing Act 1996. In the course of these reviews I attempted – not always successfully in the view of the Court of Appeal – to encourage improvements in the quality of administration of some local authorities towards the homeless population. I did not experience the problem of excessive jurisdiction of this

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aspect of judicial review, although I suspect that the legislation of 1996 was partly due to the demands of local authorities that they should fight their housing battles in a more inspectorial role, and less cumbersome and less access to justice provided by the legal procedure before the High Court. Judicial review, otherwise, had begun to flourish.

Chapter THIRTEEN

Entering the Political Thicket

The Role of the Judiciary as an Arbiter in Relation to Making and Implementation of Public Policy Anton Cooray*

I

The Genesis

“Courts ought not to enter this political thicket. … The Constitution has many commands that are not enforceable by courts, because they clearly fall outside the conditions and purposes that circumscribe judicial action. … The Con­ stitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action, and, ultimately, on the vigilance of the people in exercising their political rights.” So wrote Justice Felix Frankfurter famously in Colegrove v. Green,1 denying a suit to declare unlawful the failure of Illinois to revisit the 1901 apportionment of seats in the legislature and its resultant failure to attain fair representation.2 It is true that Colegrove v. Green was narrowly construed by Justice Frankfurter himself in Gomillion v. Lightfoot,3 and subsequently overruled in Baker v. Carr:4 But the principle that political questions are non-justifiable remains unscathed. Justice Brennan in Baker v. Carr described the nature and scope of the political question doctrine as follows: “The non-justiciability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the ‘political question’ label to obscure the need for case-bycase inquiry. Deciding whether a matter has in any measure been committed * Anton Cooray, Law School, City University London, was until recently Professor of Law and Associate Dean of Law at City University of Hong Kong. He specializes in comparative public law and is the editor of Asia Pacific Law Review, the first Asia based law journal to be indexed in ssci. 1 328 US 549 (1946). 2 The Court described the suit as an “an appeal to the federal courts to reconstruct the electoral process of Illinois in order that it may be adequately represented in the councils of the Nation. Because the Illinois legislature has failed to revise its Congressional Representative districts in order to reflect great changes, during more than a generation, in the distribution of its population, we are asked to do this, as it were, for Illinois.” 3 364 US 339 (1960). 4 369 US 186 (1962).

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_014

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by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a deli­ cate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.”5 Justice Brennan made it clear that whether a particular question is political and non-justiciable is fact dependant and identified the applicable criteria: “It is apparent that several formulations which vary slightly according to the set­ tings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commit­ ment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judi­ cial discretion; or the impossibility of a court’s undertaking independent reso­ lution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifari­ ous pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dis­ missal for non-justiciability on the ground of a political question’s presence.”6 Most recently, in the Obama Care case, Chief Justice Roberts emphatically reiterated the limited role that the judiciary plays in controlling the legislative and executive branches of the government. “Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”7 Chief Justice Roberts went on to remind the courts’ role as the guardian of the Constitution and law: “Our deference in matters of policy cannot, however, become abdication in matters of law. … Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed.”8 5 Ibid., 210–211. 6 Ibid., 217. 7 National Federation of Independent Business v Sebelius 567 US __ (2012), decided on 28 June 2012. 8 For a useful commentary on “political questions” from a UK point of view see Paul Daly, “Justiciability and the ‘Political Question’ Doctrine” 2010 PL 160.

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Developments in the UK and Hong Kong

Courts of England and Hong Kong have expressed similar sentiments. In the recent case of R (on the application of MM, Majid and Javed) v. Secretary of State for the Home Department,9 which concerned Immigration Rules which pre­ scribed a minimum income requirement to sponsor an immigration applicant, Justice Blake referred to “the tensions between the competing calls for judicial respect for sensitive issues of policy-making by the democratically account­ able executive and judicial scrutiny with an appropriate degree of intensity of rules that affect the enjoyment of a fundamental human right.”10 In the Hong Kong case of Clean Air Foundation Ltd & Another v. Government of HKSAR Harman J said: “It has long been accepted that policy is a matter for policymakers and that to interfere with the lawful discretion given to policy-makers would amount to an abuse of the supervisory jurisdiction vested in the courts.”11 In a recent case dealing with the question whether certain restrictions in a land use plan severely constrained the building design on the applicant’s land Reyes J said that “whether restrictions ‘severely constrain design’ is not a ques­ tion appropriate to a judicial review. The question is subjective in nature. It is for the Board, to the extent needed for a planning decision, to assess whether a restriction which it intends to impose will or will not unduly constrain design. The Court can claim no expertise on matters of design and must accord all due deference to the Board’s assessment of such question.”12 III

Separation of Powers

The demarcation of areas of competence of the three branches of government derives from the doctrine of separation of powers, which plays a crucial role in the constitutional order throughout the common law world. It has featured more prominently in the USA and the Commonwealth countries13 than in the UK, which has no written constitution as such. The reason for the somewhat 9 10 11 12 13

[2013] EWHC 1900; [2013] WLR (D) 280. Ibid., [94]. [2007] HKEC 1356, [32] Hysan Development Co Ltd v. Town Planning Board [2012] HKEC 1266, [18]. For the most recent reference to the concept of separation of powers as a “fundamental principle” in Westminster Model constitutions, see Surratt and others v. Attorney General of Trinidad and Tobago [2008] 1 A.C. 655, PC. See also Seepersad v. Attorney General of Trinidad and Tobago [2013] 1 AC 659, PC.

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muted application of the separation powers in the UK has been the long estab­ lished doctrine of supremacy of Parliament. The admission of the UK into the European Union and the advent of the Human Rights Act have, however, brought to the forefront the importance of the concept of separation of powers to ensure that the judiciary acts as a sentinel of fundamental rights against legislative and administrative transgressions. The doctrine of separation of powers principally means two things. First, the three agencies of government—the legislature, the executive and the judiciary—have their own area of exclusive competence free from interfer­ ence or overflow. Secondly, each branch respects the others’ province of com­ petence. In this scheme of things the judiciary, as the natural arbiter of disputes, has exclusive power to determine the legality of acts of the other two branches of government. A classic example of usurpation by one branch of the government of func­ tion of another takes the form of exercise of judicial power by administrative agencies. Tribunal cases from Australia and Sri Lanka are illustrative of situa­ tions where administrative agencies had been given judicial power inconsis­ tently with the Constitution, which vested judicial power exclusively in the judiciary.14 Similarly, some of those cases have held that it would be unconsti­ tutional for the legislature or the executive to interfere with the exercise of judicial power by courts.15 In R (on the application of Girling) v. Parole Board and another, the English Court of Appeal noted that the principle of separa­ tion powers would prevent the Minister from interfering with the exercise of judicial power by the Parole Board.16 Recently, Judge LCJ highlighted the importance of the legislature and the executive respecting judicial decisions: “It is fundamental to the constitu­ tional  separation of powers, the independence of the judiciary, and the rule of law itself that, although judicial decisions may be reversed by legisla­ tion (but very rarely with retrospective effect)17 ministers are bound by and cannot  override judicial decisions: in our constitution that power is vested in Parliament. If ever the Government or any minister in the Cabinet 14 15 16 17

R v. Hinds [1977] AC 195, PC, the “Jamaican Gun Court Case” is a frequently cited case to illustrate this principle. The most celebrated decision is that of the Privy Council in the Ceylon case of Liyanage v. R [1967] 1 AC 259, PC. [2007] QB 783, CA. For instance, as noted by Judge lcj, in the context of witness anonymity in the criminal courts, the Criminal Evidence (Witness Anonymity) Act 2008 in effect set aside the deci­ sion of the House of Lords to the contrary effect in R v. Davis [2008] 1 AC 1128, HL.

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could, without more, but in particular because of dissatisfaction with a judicial decision, not merely ignore it, but nullify it, the elementary entitle­ ment of the citizen to effective recourse to independent courts would be extinguished.”18 In R (on the Application of Rob Evans) v. Her Majesty’s Attorney General, where Lord Chief Justice expressed these concerns, the High Court neverthe­ less upheld the Attorney-General’s decision to override the decision of the Upper Tribunal that a certain category of communications between Prince Charles and Ministers in 2004–2005 were not covered by qualified privilege under the Freedom of Information legislation. This was on the ground that the Attorney-General had reasonable ground to exercise his discretionary power. In support of its decision to uphold the legality of the executive override the court held that the override is not final and could be tested by judicial review as was done in the present instance. While upholding the opinion of the Attorney General that he had reason­ able grounds for his decision, Judge LCJ ventured to describe this power as more than “unusual,” in the sense there was no other known statutory provi­ sion in England which authorised the executive to override a judicial deci­ sion.19 Davis LJ said: “in my opinion…the executive is, ex hypothesi, interfering with the decision of a specialist body or tribunal or court. That is a very sensi­ tive situation, calling for appropriately close scrutiny by the courts on a judicial review challenge.” Davis LJ went on, however, to remind us of the courts’ own limitations: “At the same time, however, nothing in the language of the section either requires or entitles the reviewing court to substitute its own opinion as to where the balance of the public interest lies.”20 Viewed from the perspective of supremacy of Parliament, what is important is that separation of powers ensures that the judiciary does not intervene in matters, which are exclusively in the legislative province. For instance, UK courts have relied on the doctrine of separation of powers to determine that parliamentary privilege is immune from judicial investigation.21 18 19

20 21

R (on the Application of Rob Evans) v. Her Majesty’s Attorney General [2013] EWHC 1960 (Admin), 12]. Ibid., [9]. Judge lcj noted that freedom of information legislation in several common­ wealth jurisdictions including Canada and Australia, however, provide for an executive override. Ibid., [89] Office of Government Commerce v. Information Commissioner [2008] EWHC 737. See also Mereworth v. Ministry of Justice [2011] EWCA Civ 1796, CA and R v. Chaytor [2011] 1 AC 684, SC.

Entering the Political Thicket

IV

205

From Common Law to Constitutional Government

Under the common law, the doctrine of separation of powers had to operate within the overriding doctrine of supremacy of Parliament, in the sense that legislative acts were non-justiciable and that administrative action could not be impugned so long as the administrative agency had acted within the powers conferred on it by the parent legislation. To the extent that administrative action was legislation-compliant, the only constraint upon it was the funda­ mental concept of the Rule of Law which required that administrative action had to be interpreted, as far as circumstances permitted, to uphold and not to restrict citizen’s rights. As a result of the UK’s European Union membership, the fairly narrow scope of judicial control of administrative action under the common law has given way to an ever-expanding supervisory role especially in respect of Convention rights, which are specifically incorporated through the Human Rights Act. UK courts do not have the power to declare UK legislation invalid for infringement of Convention Rights, unlike in the USA or Commonwealth countries such as India or Australia where inconsistency with the Constitution invalidates legis­ lation. However, the primacy of European law has put the common law doc­ trine of supremacy of Parliament in serious jeopardy. In relation to administrative action, there has been serious criticism of the traditional view that judicial review is based on ultra vires or legality. The crit­ ics have argued that wider principles of good governance must provide the yardstick for determining validity of administrative action. They have argued that the judiciary must have regard not so much to Supremacy of Parliament as to the supremacy of individual rights. There has not only been an academic debate to which eminent judges also have contributed: Judicial decisions themselves have had to confront and deal with the debate.22 As a starting point, courts have recognized that there are certain areas which are best reserved to the legislature or the administration. These “forbidden areas”23 include, for instance, “making treaties, making war, dissolving parlia­ ment [and] mobilising the armed forces.”24 The courts have, however, at the 22

See for an informative survey of the literature and a useful commentary, Murray Hunt, “Sovereignty’s Blight: Why Contemporary Public Law Needs the Concept of ‘Due Deference’?” in Bamforth and Layland (eds), Public Law in a Multi-Layered Constitution (2003: Hart), pp. 337–370 and more recently T R S Allan, “Judicial Deference and Judicial Review: Legal Doctrine and Legal Theory” (2011) 127 LQR 96. 23 See R (on the application of Abbasi) v. Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76, [106] per Lord Phillips, CA. 24 See Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, HL.

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same breadth emphasized that many other matters such as the consideration of an application for a passport affect individual rights and are undoubtedly justiciable.25 The prevailing view is that instead of demarcating exclusive zones of competence for the legislature and the administration, what is needed is an evaluation of facts and circumstances of each case for the court to decide whether it would be justified in refusing to interfere with the exercise of legis­ lative or executive action. This is precisely the position that has gained accep­ tance in the USA as we saw above in the opening paragraphs of this essay. As Sir Anthony Clark MR said in R (Gentle and Another) v. the Prime Minister, “the issue of justiciability depends, not on general principle, but on subject mat­ ter and suitability in the particular case.”26 In Daly v. Secretary of State for the Home Department Lord Steyn famously said: “In law, context is everything.”27 Courts and leading academics such as Jeffrey Jowell have insisted, however, that judicial review does not extend to a merits review.28 As Lord Scarman said in Nottinghamshire County Council v. Secretary of State for the Environment,29 judges will not entertain claims that legislative policy is unwise or unreason­ able: “Judicial review is a great weapon in the hands of the judges: but the judges must observe the constitutional limits set by our parliamentary system upon their exercise of this beneficent power.” Hong Kong has, during its 150 years as a British Crown Colony, inherited the English tradition of judicial deference to the legislative and administrative branches of government, subject to one fundamental difference, namely that the local legislature had limited legislative competence because of the para­ mountcy of Hong Kong’s Constitution. The transfer of sovereignty to the People’s Republic of China in 1997 has continued this idea of limited legislative competence in the sense that any Hong Kong legislation which contravenes Hong Kong’s Basic Law is invalid.30 Importantly, the Hong Kong legislature must not act inconsistently 25 26

27 28

29 30

See Taylor LJ in R v. Foreign Secretary, Ex p Everett [1989] QB 811 at 820. [2006] EWCA Civ 1689 (CA), [85]. See the stimulating essay by David Dyzenhaw on “The Politics of Deference: Judicial Review and Democracy” in Michael Taggard (ed), The Province of Administrative Law (1997: Hart), Chapter 13, where he draws a distinction between “submission” and “respect.” [2001] 2 WLR 1622, [28], CA. See for instance Daly v. Secretary of State for the Home Department ;[2001] 3 All E.R. 433; [2001] 2 WLR 1622, [27], HL and Jeffrey Jowell, “Due Deference under the Human rights Act” in J Jowell and J Cooper (eds), Justice/UCL Seminars (2003: Hart). [1986] 1 All ER 199; [1986] AC 240, HL. Article 11(2) of the Basic Law provides: “No law enacted by the Legislature of the Hong Kong Special Administrative Region shall contravene this law.” Chief Justice Andrew Li

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with fundamental rights enshrined in the ICCPR, which are incorporated through Hong Kong Bill of Rights and the Basic Law. V

Some Illustrative Cases from Hong Kong

Operating within a constitutional and administrative structure, whose guiding principles are similar to those obtaining in the UK, the Hong Kong courts have had to deal with the question of judicial role in relation to legislative and administrative action in a number of interesting cases. We will now set out some of these interesting cases and evaluates the principles which guided the courts in the exercise of judicial review powers. A

Worsening Air Pollution and Government’s Slow Response

Clean Air Foundation Ltd & Another v. Government of HKSAR31 concerned a judicial review application seeking court’s intervention to force the govern­ ment to take immediate and meaningful action to combat Hong Kong’s wors­ ening air pollution. For this purpose the applicants asked two declarations, first that the government has an obligation to protect the “right to life” of Hong Kong residents from harmful effects of air pollution and secondly that the existing environmental legislation is invalid for failure to comply with this con­ stitutional obligation. Hartmann J, a judicial review specialist, had no hesita­ tion in refusing leave to proceed. Hartmann J observed that under the Basic Law it is for the Government to formulate and implement policies (Article 62) and for the Chief Executive to decide whether, and to what degree, a government policy was to be executed (Article 48). He emphasised that a government policy is beyond judicial reproach so long as it is lawful and that a policy is not to be regarded as unlaw­ ful merely because it is unwise or shortsighted or retrogressive.32 In support of this he quoted from the judgment of Lord Hailsham in Chief constable of the North Wales Police v. Evans33 where it was said that judicial review

31 32 33

emphatically stated in the Court of Final Appeal decision in Ng Ka Ling and Others v. Director of Immigration [1999] 1 HKC 291, at 322, that Hong Kong courts undoubtedly have the jurisdiction to examine constitutionality of legislative and administrative action. He said that “the exercise of this jurisdiction is a matter of obligation, not of discretion.” [2007] HKEC 1356. Ibid., [32]. [1982] 1 WLR 1155, at 1160, HL.

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“is intended to see that the relevant authorities use their powers in a proper manner…[and not] to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question.” In essence, Hartmann J viewed the judicial review application as an invita­ tion for the court to judge the merits of government policy or more accurately to inquire why the government had failed to pursue some of its policies. The judge dismissed the application for leave to proceed with a judicial review application and said that courts would not entertain a request to “review the merits of policy in an area in which Government must make difficult decisions in respect of competing social and economic priorities.”34 In the more recent case of Chu Yee Wah v. Director of Environmental Protection,35 which concerned the validly of the environmental impact assess­ ment report of the proposed “Hong Kong-Zhuhai-Macau Bridge project,” the Court of Appeal, while it was prepared to examine whether the assessment had complied with the statutory requirements, refused to enter into a discus­ sion on the desirability or adequacy of government policy. The Court of Appeal agreed with the view expressed by Fok J in the Court of First Instance: “Nor is this case a debate about the adequacy of the air quality objectives currently in force in Hong Kong under the Air Pollution Control Ordinance (Cap.311). That is a matter of policy and, so long as lawfully determined and executed, policy is not a matter for the courts. No one can seriously question that air quality in Hong Kong is a matter of concern. But [as Reyes J said in Ng Ngau Chai v. Town Planning Board]36 the Judiciary cannot manage the environment. That is the role of the Executive.”37 B

Sexual Discrimination and Legislative Policy

Leung v. Secretary of Justice38 is a case where constitutionality of legislation was successfully challenged on a judicial review application. There, the applicant challenged the constitutionality of certain sections of the Crimes Ordinance. His argument was that the prohibition contained in the ordinance against 34

35 36 37 38

[2007] HKEC 1356, [43]. This is reminiscent of the view expressed by Hoffmann J in Stoke on Trent City Council v. B & Q [1991] 1 AC 49; [1990] 2C.M.L.R. 377 (dealing with legality of Sunday trading). [2011] 5 HKLRD 469, CA. [2007] HKEC 1207, [28]. [2011] 5 HKLRD 469, [30]. [2006] HKEC 1763, CA. A UK parallel is Sutherland v. United Kingdom (The Times, 13 April 2001), ECHR.

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sexual acts between males below the age of 20 was discriminatory because the age of lawful sexual intercourse for heterosexuals was only 16 years. The government opposed the judicial review application on the ground that there was no administrative decision which the applicant was calling into question, such as prosecution for an infringement of the Crimes Ordinance. Thus, the question raised before the court was purely academic and the appli­ cant did not have standing to bring the action. The Government argued that what the applicant was seeking was a frontal attack on a legislative provision, in essence asking the court to give an advisory opinion on the constitutionality of legislation, without any concrete dispute for resolution. Unlike in the Clean Air case, Hartmann J brushed aside the objections raised by the government and held that judicial review was the appropriate remedy. His decision that the statutory provisions in question were unconstitutional was affirmed by the Court of Appeal. The reasons for the success of the judicial review application were as follows: (1) While as a general rule judicial review concerns some administrative act, there may be circumstances where legislation itself may be the subject of review. (2) Courts’ function being to settle disputes, they would not generally decide purely academic or hypothetical legal questions. However, where the legal issue can be determined without reference to a disputed facts situa­ tion and where legal arguments for and against the legal challenge are well presented to the court, there is no objection to the court assuming jurisdiction. In fact, Article 35(1) of the Basic Law refers to the right of access to courts and the need for timely protection of rights through judicial remedies. (3) Where the court is convinced that the impugned legislation is clearly unconstitutional, it may be a travesty of justice to refuse to grant the application merely because the applicant has not been the victim of an unlawful administrative act. As Advocate General Jacobs had said in Union de Pequenos Agricultores v. Council of the European Union “individ­ uals clearly cannot be required to breach the law in order to gain access to justice.”39 (4) In exceptional circumstances a declaration may be directed to any pos­ sible unlawful action in the future. In the present case there was a real likelihood of such action being taken not only against the applicant but any other homosexual. 39

[2003] QB 893, [43].

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Unlike in the case of Clean Air the court ventured to declare the impugned legislation invalid. Hartmann J rejected the argument that the legislature must be given a free hand in determining whether it was in the public interest to regulate more strictly consensual sex between males, reflecting the conserva­ tive attitude of the Hong Kong community. While agreeing that in the generality of cases the courts would defer to legislative policy, Hartmann J was of the view that the present legislation which predated the Hong Kong Bill of Rights seri­ ously compromised the basic democratic value of equality. Citing Lord Hope in the leading case of R v. DPP ex p Kebilene & Others40 Hartmann J said that in cases involving rights of high constitutional importance courts would give less deference to the legislature, unlike in cases concerning social or economic pol­ icy where courts more readily recognise “a discretionary area of judgment.” Hartmann J held that even where the majority supported a discriminatory measure judges must stay steadfast to protect individuals from unjustified dis­ crimination, following the view expressed by Lord Hoffmann in R (Alconbury Development Ltd & Others) v. Secretary of State for the Environment, Transport and the Regions.41 In the recent case of W v. Registrar of Marriages,42 the Court of Final Appeal considered whether the statutory requirement that a marriage can be con­ cluded only between a male and female was unconstitutional. In a lengthy judgment, whose reasoning need not be set out here, the court decided that it was so. However, instead of invalidating the relevant statutory provisions, namely Section 20(1) (d) of the Matrimonial Causes Ordinance and Section 40 of the Marriage Ordinance, the court decided that they must be read and given effect so as to include within the meaning of the words “woman” and “female” a post-operative male-to-female transsexual person whose gender has been certified by an appropriate medical authority to have changed as a result of sex reassignment surgery. Recognising the inevitable role that the legislature must play in formulation of policies in an important area such as marriage, the court suspended the coming into effect of the declaration by twelve months giving time to the legislature to come up with a comprehensive legislative framework to deal with all aspects of sex discrimination against trans-sexuals in the context of marriage. The court explained that while the courts have no diffi­ culty in deciding whether a claimant satisfies the criteria for entering into mar­ riage,43 it would be rather unsatisfactory for the court to set out tests of general 40 41 42 43

[2000] 2 AC 326,381, HL. [2001] UKHL 23; [2001] 2 WLR 1389, 1411, HL. [2013] HKEC 716, CFA. Ibid., [147].

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application for the resolution of complicated problems that would arise in relation to eliminating sex discrimination in respect of marriage. The court decided to leave this area of controversial policy to the legislature, but ven­ tured to point out several issues that the legislature had to address.44 C

Miscellaneous Cases

There have been several cases where the courts had to consider their jurisdic­ tion in relation to legislative or administrative policy decisions and exercise of discretion. The principles emerging from a survey of these cases are: 1.

Public authorities are entitled to adopt policies as guidance for the exer­ cise of discretionary powers. So long as discretion is exercised lawfully, courts will not intervene simply because the court would have exercised that discretion differently. Nor would the courts question the adoption of a policy so long as the decision-maker has an open mind in dealing with a factual situation calling for the exercise of their discretion. In Chu Hoi Dick & Another v. Secretary of Home Affairs it was argued that the Secretary for Home Affairs had been wrong not to declare the Queen’s Pier a monu­ ment under the Antiquities and Monuments Ordinance which would have ensured that the Pier had to be preserved in situ. The Secretary had not made such a declaration, although the advisory committee had rec­ ommended such action. As a result, the government was able to disman­ tle the pier and reconstruct it at another place, enabling a new harbour development to take place. The court refused to be drawn into a merits review of government policy. Lam J said: “In judicial review, the court is concerned with the legality of administrative action. The court can exam­ ine whether an administrative decision has been made in accordance with the relevant legislative provisions and other common law principles securing the procedural and substantive fairness of the process. However, it cannot substitute its own view as regards what decision should be made. Provided that the administrative decision is one a minister or an executive body can lawfully make, the court cannot interfere.”45 2. An area where the courts have been prepared to allow an area of fairly unrestricted operation relates to immigration. Chu Woan Chyi & Others v. Director of Immigration46 provides a good illustration. The case 44 45 46

Ibid., [127]–[146]. [2007] HKEC 1471, [1]. [2007] HKEC 553.

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concerned Falun Gong activists who were refused entry visas to partici­ pate in a conference organised by the Falun Gong, which is a proscribed organisation in China, but not in Hong Kong. Hartmann J said that in the area of immigration aliens had restricted rights and immigration authori­ ties must enjoy wide powers to screen visa applicants. He was of the view that in dealing with a visa application the immigration authorities exer­ cise an administrative power and therefore there would not necessarily be a right to a hearing. Hartmann J pointed out that courts have consis­ tently accepted that Hong Kong’s unique geographical, physical, social and economic circumstances make it legitimate for the Director of Immigration to manage a restrictive policy of immigration. It was held that the Director had not acted unlawfully: he had refused entry to the applicants not because of their religious beliefs, but because in his assess­ ment permitting the applicants to enter Hong Kong would not be in the public interest: “He came to that determination on the basis that, in his view, there were no exceptional circumstances outweighing the impera­ tives of the intelligence assessment. Whether his determination was, on the merits, right or wrong, is not the issue. The issue is solely whether he acted within the limits of his broad discretionary power and clearly he did.” Recently the Court of Final Appeal has reiterated the position that the courts would not question immigration policies of the government, for instance the policy not to grant asylum in Hong Kong. The court, however, emphasised its duty and power to question whether govern­ ment officials exercising immigration related powers have acted law­ fully and consistently with the Rule of Law.47 3.

The extent to which administrative officers may consider themselves bound by government policy came up for discussion in Lai Tak Shing v. Director of Home Affairs.48 There, the Minister had refused the applicant’s request to amend a Schedule of the Village Representative Elections Ordinance by adding a certain village to the list of indigenous villages in it, because that village could not be considered an indigenous village according to the relevant government policy. If a village is an indigenous

47 48

D v. Director of Immigration [2013] HKEC 428, CFA. [2006] HKEC 1873, CA.

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village, there is provision for the election of an indigenous villager to represent their interests in addition to the election of a representative to generally look after the village affairs. The Court of Appeal affirmed the decision of the Court of First Instance refusing the application. On the question whether the Minister had fettered his discretion by follow­ ing a government policy, which had been endorsed by the Legislative Council, the Court of Appeal observed that the adoption of a legislative or administrative policy provides for certainty. But at the same time, there must be sufficient flexibility in the application of such a policy in order to accommodate any special circumstances of a particular case. It is only an inflexible policy that would fetter administrative discretion. Thus, it was open to the government to adopt a policy regarding what criteria should be used in determining whether a village is an indigenous village. VI

Conclusion: How does Independence of the Judiciary Fit into all this?

We uphold the independence of the judiciary for a very special reason: namely, for courts to be able to perform their function as the guardian of the constitu­ tion and law. For this purpose, first, people must have unobstructed access to the judiciary, which is almost universally regarded as a fundamental right whether such right is expressly protected by the constitution or not. Secondly, the judiciary must have the power to decide whether or not the legislature, the executive, an individual or a legal entity has acted lawfully. It is because the judiciary has to decide on legality of legislative and administrative action that constitutions have to provide special safeguards to prevent the government from interfering with the performance of judicial functions. The core of the doctrine of separation of powers is that judicial power is vested exclusively in the judiciary—subject to special exceptions like privi­ leges jurisdiction of Parliament—and is not to be shared, or interfered with, by the other two branches of government. The flip side of the coin is that legisla­ tive powers are vested in the legislature, subject to legislative powers— described as secondary legislation—that are expressly or impliedly vested in the executive to supplement primary law. Apart from some powers of a legisla­ tive nature—such as making rules of court—the judiciary has no legislative powers. As far as judicial power is concerned, some dispute resolution pow­ ers that used to be part of the ordinary jurisdiction of courts have been taken away and granted to special tribunals and executive agencies that have been

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given the power to take decisions which affect rights of the subject. In this complex situation why should the judiciary defer to the legislature or the executive? The modern day political systems are based on the understanding that laws and legislative policies must be made by a representative legislature and that their implementation must be left in the hands of the administration which is accountable to the legislature. It is therefore logical that the judiciary should not, and should not appear to, exercise or interfere in the exercise of legislative power. Similarly, the judiciary should not exercise, or appear to exercise, pow­ ers that are vested in the executive. This is the justification for judicial defer­ ence on the grounds of constitutional considerations. This judicial deference in relation to the legislature means that courts do not question the wisdom of legislation or legislative policy. And in relation to the executive it means that courts do not question the wisdom of subsidiary legislation or merits of discre­ tionary decisions. This, however, does not mean that the judiciary is wholly incompetent to interfere so long as a law has been lawfully enacted, a legislative or administra­ tive policy has been lawfully made, or an administrative decision has been taken in accordance with the relevant law. The judiciary has an important role to play in relation to the substance of legislation, policy or discretionary deci­ sion, because there is a higher law that governs all this—embodied in a para­ mount constitution or evolved from the common law idea of the rule of law. It is this special responsibility of the judiciary to ensure the protection of funda­ mental rights and norms that brings it into conflict with the legislature and the executive. It is for this reason that independence of the judiciary calls for not only institutional safeguards to protect the judiciary from interference, but also a strengthening of the judiciary’s competence to uphold the constitu­ tion  and fundamental values against legislative or administrative inroads. While judicial deference requires the judiciary to respect the lawful spheres of legislative and executive competence, the judiciary has to intervene when there is unlawfulness—not only in respect of procedure—but also in respect of substance, such as where constitutional rights are infringed by perpetuating unequal representation in the legislature as was in issue in Baker v. Carr. The limitation that the judiciary operates under is that a court can decide on the meaning and application of law only where there is a dispute to be resolved. Thus while a law or legislative policy may be declared unconstitu­ tional in relation to a matter before the court, there is no power in the courts to repeal a law, in the sense that the law continues to be on the statute book until

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it is repealed by the legislature.49 It is for this reason that the Court of Final Appeal in W v. Registrar of Marriages50 left it to the legislature to make suitable legislative amendments, for which purpose the court set out some guidance. An important underlying reason for judicial deference to the legislature is that the legislature reflects public opinion: but the reason that a law or policy has majority support is not a reason itself for it to command judicial deference. If laws are valid because of majority support, protection of minority rights would be in serious jeopardy. As Chief Justice Ma said in W v. Registrar of Marriages, “reliance on the absence of a majority consensus as a reason for rejecting a minority’s claim is inimical in principle to fundamental rights.”51 Judicial decisions which directly or indirectly question validity of govern­ ment policy conflict not only with the government but also sections of the public who support such policy. UK media frequently report government’s dis­ pleasure with the intrusions that the human rights jurisprudence is making into government affairs and more generally what the government considers as undesirable impact of the European Union law on the UK. Courts which play a crucial role in implementing EU treaty obligations and ensuring compliance with the Human Rights Act have come in for particular criticism, be they judges of domestic courts or EU judicial tribunals. The resentment is so deep that there is considerable dissatisfaction not only with the Human Rights Act but also with membership of the European Union. The judiciary has come under attack for questioning government policies and their implementation. For instance, newspapers have been critical of judi­ cial decisions upholding the right of criminals to remain in the UK to protect their right to family life;52 and the right of prisoners to vote to protect their right to participate in the democratic process.53 49 50 51 52

53

Of course, courts use the language of “null and void” in relation to a law that it finds unconstitutional and for all practical purposes such a law will have no effect. [2013] HKEC 716, CFA. Ibid., [116]. Recently the Home Secretary announced plans to exclude power to deport from the application of Section 8 of the Human Rights Act, which protects the right to family life. See “May lays down the law over foreign criminals’ human rights: Judges will be forced to reject claims to a family life” Daily Mail of 18 February 2013: http://www.dailymail.co.uk/ news/article-2280291/Theresa-May-lays-law-Judges-forced-reject-claims-family-life -foreign-criminals-human-rights.html. A commentator argued that prisoners’ voting rights ought to be decided by Parliament and not by courts. See “Prisoners’ Right to Vote: A Commentary” in Daily Telegraph of 2 November 2010. http://www.telegraph.co.uk/news/uknews/law-and-order/8104458/ Prisoners-right-to-vote-commentary.html.

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So long as independence and integrity of the judiciary remains unimpaired, and judicial decisions are reasoned and based on ideas of good governance and the Rule of Law, judges will not feel inhibited in inquiring into all aspects of governance. Our survey of a selection of Hong Kong and UK cases show that courts have taken a clear stand on the implications of the separation of pow­ ers: namely that the legislature and the administration are subject to judicial review but that the fundamental principle that guides judicial review is the respect for legitimate decision making by these two branches of government.

Chapter FOURTEEN

On Judges Writing Commentaries

Is It Appropriate for A Judge to Engage in Outside Activities? Fryderyk Zoll1

I

The Problem

It is a characteristic problem for Poland in the last 20 years that the jurists appear in different roles in the society. One person can be a law professor and an advocate or a professor and a judge at the same time. There are judges who write commentaries on the statutes or even the notes to the judgements of the courts or reviews of the case law. The judges in Poland are prominent members of the law commissions, drafting the laws. One may ask whether it is healthy for the system of justice when the jurists trespass the border line of their professions and appear in different roles in the society. This question is quite a fundamental one for the functioning of the system of justice and for the understanding of the role of the lawyers and other jurists in the system of the society. The answers to all these questions are not self-evident. It depends on the fundamental assumption of the legal system and the general expectation towards the jurists. In this paper I would like to discuss the question of whether judges should be active as participants in the discussion about law outside of the courtroom. To clarify certain points of this discussion I would also like to indicate another potential conflict between the role of the law professor and practicing lawyer. It is an important introduction to present the whole picture of the various conflicts appearing when different legal professions are exercised simultaneously. II

The Role of the Different Legal Professions

The Polish legal system belongs to the Civil Law tradition. It is characterized by the important role of the academic legal doctrine in the formulation of the

1 Professor of law, Jagiellonian University and University of Osnabrück, Member of the Polish Codification Commission.

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_015

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interpretation concepts and the development of the law2 by the judicial system with the active role of the judge and a less important of the lawyers. These assumptions are, however, permanently changing. The contradictory formula of the judicial process becomes more important and there is a gradual transfer of the leading function in shaping the course of the procedure from the judges to the lawyers. However, this process does not occur equally in the different branches of the law. Astonishingly, it is much stronger in the criminal than in the civil procedure. III

Can Law Professors be Practicing Lawyers?

Before presenting the problem related to the judges, I would like to focus on the problem whether or not professors should be practicing lawyers. It shows that the question of the conflict of roles played by various legal professions is not restricted only to judges. Formally, there are no obstacles for the professors of Polish law schools to run a legal practice. The economic conditions of the transition time in the early 90s, however, have forced many scholars to seek additional sources of income. At this time the profession of professor had rather become a hobby or side-activity. This situation has produced various effects. The participation of highly qualified academic jurists in the legal profession has had a positive influence on the quality of the system of justice. The universities have undeniably benefitted from the newly gained practical experience of the professors, but they have also suffered due to the fact that a large part of the academic body did not have its focus on the law school any more.3 2 On the principles of the Continental Law, see the script of the Ministry of Justice on the “Continental Law – global, predictable, flexible, cost-effective,” editorial team (responsible): Jean-Marc Baïssus (Fondation pour le Droit Continental), Rechtsanwalt Axel C. Filges (Bundesrechtsanwaltskammer), Rechtsanwalt Prof. Dr Friedrich Graf von Westphalen (Deutscher Anwaltverein), Vorsitzender Richter am Landgericht Berlin Lothar Jünemann (drb), Notar Dr Timm Starke (Bundesnotarkammer), Notar Dr Oliver Vossius (Deutscher Notarverein) published by the Association des Juristes Français et Allemands (ajfa), Bundesnotarkammer (bnotk), Bundesrechtsanwaltskammer (brak), Conseil National des Barreaux (cnb), Conseil Supérieur du Notariat (csn), Deutscher Anwaltverein (dav), Deutscher Notarverein (dnotv), Deutscher Richterbund (drb), Fondation pour le Droit Continental (fdc), Université Paris Panthéon-Assas Paris II, Berlin/Paris 2011; C. Graf v. Bernstorff, Deutsches Recht – Globales Recht, Anw-Prax 2011, str. 274–276. 3 F. Zoll, The Challenges of the Mass University and the Civil Law Country Model of Legal Education: How Open Is the Polish University Model to Innovative Teaching and Nurturing

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Nevertheless, this is not the place to discuss the result of this development for the legal education in Poland which is an issue of its own. From the perspective of this paper it is much more important to analyse briefly, whether or not combining these two functions is in compliance with their objectives. In the continental legal tradition, or more precisely in its Germanic variant, the university plays an important role in the system of justice. The professors formulate their opinions concerning the interpretation of the law (in the form of academic writings, but also, what is more controversial in the form of private opinions for the court on behalf of the client) and these opinions are an important factor in the process of the making of legal decisions. This role of the professors requires, however, that the impartiality of the law professors is secured. In case of the academic professors who also act as advocates, the professional roles become unclear and the reliance in the impartiality of the professors suffers. In some Civil Law systems there are some essential limits on allowing the law professors to practice law4 (such limits are also in the USA, enforced by the accreditation rules of the aba).5 Admittedly, these restrictions predominantly serve the protection of the educational and academic purpose of the university. They have, however, quite an important function if the professor should serve as a kind of independent authority explaining the ambiguities of the legal system. This function is underestimated today and it is rather a side-effect and not the primary purpose of these restrictions. In Poland there are no such restrictions. Albeit there are no surveys concerning the position and prestige of the particular group of law professors, the existing situation must affect the reliance to the professors. They cannot claim to have the status of being an independent arbitrator over the legal system any more. It is sometimes difficult to distinguish in which role the person is arguing in public – as a lawyer or as independent researcher.6

of Clinical Programs?, in: D. Ikawa/L. Wortham, The New Law School, Reexamining Goals, Organization and Methods for a Changing World, Cracow 2010, pp. 81 (83–86). 4 German Federal Court (bgh), decision from 10. October 2011, AnwZ (B) 10/10, in: NJW 2012, p. 615 and decision from 13. February 1995, AnwZ (B) 77/94, in: NJW-RR 1995, p. 888; On the incoherency of the work as a professor and the legal profession, see: Federal Constitutional Court (bverfg), decision from 30 June 2009, 1 BvR 893/09. 5 Standard 402 (b) of the aba Standards for Approval of Law Schools 2013–2014, American Bar Association, Chicago Illinois 2013. 6 F. Zoll, in: D. Ikawa/L. Wortham, pp. 81 (82–83); German Federal Court (bgh), decision AnwZ (B) 77/94, in: NJW-RR 1995, p. 888.

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The Conflicts of the Role Caused by the Judges

Principally, the judges must not exercise other professions.7 There is only an explicit exception for the academic function (also containing specific restrictions). One may say that the judges are basically not allowed to cause such a confusion of the role played in the system of justice, since they are limited by the law. The truth is, however, that the judges are not free from situations, where there is a confusion concerning the role of the person in the system of the justice, either. Various constellations of these activities may be named. Judges in Poland actively take part in academic discussions. They publish commentaries to the laws and statutes, notes to the court decisions etc. There is a growing number of jurists who simultaneously fulfil the duties of university professors and are members of judiciary. Further, the judges in Poland actively participate in the process of legislation, being member of (law) codification commissions. In a certain sense one may argue that the judges in Poland make the law, apply the law and comment the law. Is this multiplication of functions a problem? A

The Judges as Legislators

The judges in Poland often participate in the process of drafting the law. They are members of the law commissions for civil and criminal law and essentially influence the shape of the statutes. Although the judgments in Poland do not have the effect of a precedent, the confusion in the system of the partition of powers is visible. The judges are not the legislators in the narrow sense, but practically they play an extremely important role in the process of legislation. Their participation in such bodies is important due to their practical experience. The judges were always present in the Polish codification commissions. Today, however, their role is increasing. Numerous judges take seats in this commission. Their role in drafting the rules on civil procedure is immense. Despite their practical experience, the question arises whether the principle of the separation of powers, rooted in the Polish constitution,8 does allow such an active participation. This principle is not absolute and should rather be understood as certain guidance or direction for the organization of the state. The participation of judges in the process of legislation may also have the consequence that a 7 Art. 86 Ustawy o Ustroju Sądów Powszechnych (Statute on the Structure of Judiciary), Statute from 27 July 2001, Official Gazette 2001 no 98 pos. 1070. 8 Art. 10 of the Constitution from 1997, see on the seperation of power in Poland: B. Banaszak, Konstytucja Rzeczypospolitej Polskiej. Komentarz, Vol 2, Warsaw 2012, Art. 10, para. 1–16.

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specific perspective of the law might dominate the judicial system. It is often a perspective of the protection of the judge and a relaxation of his or her duties. It is an important perspective which also serves justice by making the procedure more effective. It could, however, potentially underestimate the needs to protect the legitimate interest of the other participants in the procedure.9 B

Judges Writing Commentaries

In the market of the legal writings, there are numerous commentaries and other books or articles written by judges. Without any doubt, they immensely enrich the discussion on legal matters. They present the views which are not influenced by the particular clients’ needs. They regularly accomplish a high standard of objectivity. Nevertheless, there are some controversies about these writings. The positions presented there are not only supported by the power of the arguments. They are also supported by the formal authority of the judge. The parties may trust the court to decide the dispute according to the positions presented in the papers, not because the arguments are especially convincing but because the judge deciding the case (or the judge of the higher court, who may review the case) has expressed a certain view. It is a kind of rationes imperli which also influences the judge him- or herself, who may feel bound by the opinion presented in the literature. Sometimes the judges write notes to the decisions of other judges. It may undermine the reliability of the judiciary system. But I do not see a problem in this – despite of the issue discussed above. The fiction of one possible legal position or interpretation cannot seriously be maintained. The criticism towards the decision of a colleague obscures the clarity of the decisions from the perspective of the addressees and may weaken the feeling that the decision is “just” but such decision is not released from the discussion. The other judge criticising such a decision, however, finds him- or herself in an unclear situation, whether the source of the criticism results from the authority of the author as a judge or from the quality of arguments. By allowing the judges to be professors at law schools this conflict seems to be accepted by the legislator. The professors are obliged to publish their views and to take part in the legal discussion; the judges should settle their cases in the independent way. 9 It may be disputed whether this situation in Poland would violate Article 7.1. of the Mt. Scopus Approved Revised International Standards of Judicial independence from March 19, 2008, if they would be applicable to this case; the rules are available at http://www .cristidanilet.ro/docs/MtScopusInternationalStandrds.pdf, visited on September 2013.

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If such a restriction was accepted in Poland, it would mean a serious revolution in the discussion on law. Its radicalism would probably go too far. The judges in the continental tradition do not have this extremely elevated position as common law judges do. The situation that the same jurists appear in different roles lasts so long that everybody regards this situation as normal. However, it cannot be disregarded that this permanent mixing up of positions of people participating in the judicial system influences the functioning of the system in negative way as well. At least all Polish jurists should be more reflective about the role which they fulfil in the delicate system of justice. The trespassing of the border between different legal professions produces numerous positive effects, enriching the discussion and improving the law. The picture of the justice system, however, becomes less clear and the rules of finding justice and the law are also inflected by the existing permanent conflict created by the confusion of too many roles in one person. This situation cannot be changed at once. In the period of the transition of the legal system there were just not enough people with sufficient competences to draw clear lines. But we are approaching the point that there are sufficient human resources to handle and develop the system without creating the confusions described above. This does not mean that it is necessary to deprive judges from participating in the academic dispute and to entirely exclude them from the process of the drafting of law. A certain proportion, however, must be maintained and also the awareness must grow that such situation despite of all unquestionable benefits still bears risks to the quality of the justice system.

Chapter FIFTEEN

Procedural Guarantees of Independence and Impartiality of Judges in Russia Sergey Nikitin* I Introduction Procedural remedies play an important role in the system of procedural independence and impartiality of judges when carrying out justice. This means that the standards that procedural law regulates should provide an objective, impartial and independent review of court proceedings. Of all the procedural remedies, we will look more closely at the matters of the legal procedure of recusing judges, and also some aspects of ensuring judicial independence when rendering decisions. Grounds for recusing a judge or for self-recusal are circumstances that give rise to doubt of impartiality, including reasons to suspect the direct or indirect interests of a judge in a case. A judge should not participate in proceedings when there are questions of partiality or potential partiality.1 II

Recusal of Judges to Insure Impartiality

The general principles should, to some extent, be elaborated by domestic law and judicial precedent. Indeed, domestic law should contain rather specific and concrete grounds for the recusal (self-recusal) of a judge, and also a separate (special) legal procedure of establishing the existence or lack of specific grounds and making the decision to recuse a judge. It is thus important that the grounds and procedure of recusal (self-recusal) of a judge have generalities and that they are equally applied irrespective of the type of legal proceedings (criminal or civil). * Doctor of Law, Professor, Honoured Jurist of the Russian Federation, Pro-Rector of the Russian Academy of Justice, Member of the Higher Qualification Commission of Judges of the Russian Federation. Academic interests – judicial control over legal acts, judicial evidence, bankruptcy legislation. 1 Judicial Independence Standards, s. 8.2.

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The concepts of partiality and self-interest may be defined. Conclusions on the partiality (potential partiality) or self-interest of a judge are based on objective and/or subjective factors (circumstances). In this regard, it is very important to specify thoroughly in domestic law and judicial precedent the circumstances that may testify to the partiality or self-interest of a judge in a process. First of all, objective circumstances have to be directly incorporated in procedural law that directly and unambiguously exclude the possibility of a judge participating in a case. Such circumstances could be a) the previous participation of a judge in a case as a lawyer, prosecutor, expert, witness, etc.; b) the previous participation of a judge in considering a specific case in other judicial instances as well as in other arbitration courts; c) the existence of family ties of the judge to any of the participants in a process; or d) a judge being currently under, or previously under, the service of, or otherwise dependent on, one of the parties participating in a case. In addition, it is possible to consider whether a judge has previously spoken publicly or commented on the substance of a case being considered. Other circumstances of the direct or indirect interest of a judge in a case, or grounds for doubting the impartiality of a judge, may also be implemented in procedural law and judicial precedent. The procedure for rendering a decision on recusal is an important element of the legal mechanism of recusing a judge. It is very important that the process used to recuse a judge be regulated by procedural legislation. On the one hand, the procedure should allow those participating in a case the possibility of filing well-reasoned petitions on recusing a judge; while, on the other hand, the procedure should exclude the possibility of abusing procedural law when filing such a petition, including those that would unreasonably protract proceedings. A judge from a different court should be assigned to review a petition to recuse a judge and to render a corresponding decision, which, for the most part, guarantees an objective review of the matter on recusing a judge. III

Ground for Recusal Under Russian Law

The process of recusing a judge in the procedural legislation of the Russian Federation lacks general regulations. A judge may not review a case in civil proceedings and must be recused if said judge:

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has participated in a case previously as a prosecutor, courtroom secretary, attorney, witness, expert, specialist and/or an interpreter/translator; is a relative or in-law of one of the parties participating in the case or their attorneys; is personally or indirectly interested in the outcome of a case or there are other circumstances that cause to doubt a judge’s objectivity and impartiality.2

A judge may not participate in criminal proceedings if said judge: 1)

is an injured party, a civil plaintiff, a civil defendant or a witness in the current legal proceedings; 2) has been a member of a jury, expert, specialist, interpreter/translator, witness, courtroom secretary, defendant, legal representative of a suspect/accused, a representative of an injured party, a civil plaintiff and/or a civil defendant, and a judge also as an interrogating officer, investigator, prosecutor in the proceedings of the current criminal case; 3) is a close relative or relative of any of the parties participating in the proceedings of the current criminal case; 4) is involved in other circumstances that give cause to believe that the judge is personally, either directly or indirectly, interested in the outcome of the current criminal case.3 Arbitration (commercial) court proceedings have a wider range of grounds for recusing a judge. According to article 21 of the capc of the rf,4 a judge may not review a case and must be recused if said judge: 1) 2) 3)

has participated in the previous review of a case as a judge and has repeated a review of a case under the requirements of the current code; has participated in the previous review of a case as a prosecutor, judicial assistant, courtroom secretary, representative, expert, specialist, interpreter/translator or witness; has participated in the previous review of a case as a judge of a foreign court or arbitration court;

2 Civil Procedure Code of the Russian Federation. 2002, art. 16. 3 Criminal Procedure Code of the Russian Federation, 2001, art. 61. 4 Commercial Arbitration Procedure Code of the Russian Federation, 2002.

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4) is a relative of a party involved in a case or its representative; 5) is directly or indirectly personally interested in the outcome of a case or there are other circumstance that give rise to doubting a judge’s impartiality; 6) is or previously was under the service of or dependent on a party involved in a case or its representative; 7) has spoken publically or commented on the matters of a case under review. The indicated different ways to establish grounds to recuse a judge could not likely be fully justified by the specifics of one or another type of judicial proceedings and could give rise to grounds to criticize the procedural doctrine.5 IV

The Procedure of Recusal

A single process for deciding to recuse a judge is not embodied in procedural legislation. Therefore, when a court is reviewing a civil or criminal case collectively, the matter of recusing a judge is decided by this very same group of judges without the recused judge. A decision to recuse a judge, as petitioned by several judges or by the entire group of judges, is decided by this very court as an entire group of judges by a simple majority of votes. If a judge is reviewing a case individually, then the matter of recusal, as petitioned to a judge, is decided by this very same judge.6 In arbitration (commercial) legal proceedings, the matter of recusing a judge considering a case individually is decided by the chair of an arbitration court, the deputy chair of an arbitration court or the chair of a judicial structure. The issue of recusal declared to several judges or the entire structure considering a case of an arbitration court is similarly resolved. The greatest doubts are raised by a process during which a petition to recuse a judge is resolved individually by the very judge considering a civil or criminal case. It is obvious that if a judge is really interested in the outcome of a case or there are other circumstances giving rise to doubt objectivity, then the judge will not be able to be impartial when resolving the matter of recusal.7 In this 5 Voskanyan M.Zh, “Procedure to resolve self-recusal and recusal of a judge during civil and commercial arbitration proceedings” (2008) 1 Yurist. 6 Criminal Procedure Code of the Russian Federation, 2001, art. 61. See also note 2 above. 7 Eseva E.Yu. “Recusal of a judge during a civil procedure: reality or function?” (2012) 1 Court Administrator.

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case, it is possible to say that one of the main legal postulates (axioms) is being infringed: nemo judex in propria causa. In this sense, a procedure for resolving the matter of recusing a judge in arbitration (commercial) proceedings is more acceptable.8 At the same time, it must be kept in mind that when a presiding judge or his/her deputy has the right to recuse a judge, under certain circumstances, this could be used to pressure a judge, thereby limiting the judge’s independence. In terms of the practice of Russian arbitration courts, there have been cases when a chair of the courts has used the right to recuse a judge, and the latter has regarded this as an unjustified recusal from the case and has filed complaints against the judge with the community of judges as well as the respective law enforcement structures. In this case, it would be better to assign to other regular judges of this court the right to resolve the matter of recusing a judge that is individually considering a case, and also the majority of judges or the whole court structure. V

The Transfer of the Case to another Judge

An important procedural guarantee of a judge’s independence is restricting the recusal of a judge from a case: A judge may not be recused from a particular case without sufficient grounds, such as cases of serious illness or a conflict of interest. Any similar reasons as well as a response procedure must be stipulated by the law, and this may not depend on any interests of the government or administration. The decision to recuse a judge from a case has to be accepted by a body that uses the same judicial independence as the court.9 Implementing this principle envisages the need to embody in domestic legislation the grounds and procedure for transferring a case from one judge to another one. The ban on recusing a judge from a case is not formally set in Russian procedural legislation, and there are not norms to the general rules to transfer a case to another judge. A number of special norms are available, which establish separate grounds and procedures to transfer a case to another judge, and in 8 A.T. Bonner in M.S. Shakaryan (ed.), Commentary on the Civil Procedure Code of the Russian Federation (Welby TC; Prospect Press, 2007) p. 62. 9 Judicial Independence Standards, s.7.10.

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civil proceedings these include particularly the accepted recusal (self-recusal) of a judge (article 21 ccp rf); a decision to transfer a case to another court (article 33 ccp rf); combining similar cases that are being heard by several judges of the court (article 151 ccp rf). Moreover, in practice, cases may be transferred for reasons owing to judges not being able to preside over them for extended periods of time because of illness, vacations, temporary suspension of a judge’s competency and others. On occasion, court chairs remove part of a case from a judge owing to the need to decrease the heavy load on a judge that has led to or could lead to a revolving door and substantial failure to comply with the deadlines of reviewing cases. VI

Insuring Judical Independence

Russian procedural legislation lacks sufficient regulation of the grounds and procedure to recuse a judge from a case, meaning that a court manager may take voluntary action; and this could be a factor in decreasing the level of guaranteed judicial independence. Procedural norms intended to provide judicial independence when reviewing a case and rendering a decision play an important role in the system of guaranteeing legal independence. Russian procedural legislation states directly the principle of judicial independence and reviewing and resolving a case: Judges are independent when carrying out justice, and they answer only to the Constitution of the Russian Federation and federal law. Any outside interference of judges, interference in their work for state bodies, self-governing bodies or other bodies, organizations, administrative officials or citizens is forbidden and may be prosecuted under the established law. The Constitution of the Russian Federation and federal law establish the guarantee of judicial independence.10 Judicial independence and impartiality when rendering justice is also provided by the principle of the open evaluation of evidence in a case, private chambers, the right of a judge to his/her own opinion, etc. 10

Civil Procedure Code of the Russian Federation. 2002, art. 8. Commercial Arbitration Procedure Code of the Russian Federation, 2002, art. 5.

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The principle of judicial independence and answering only to the Constitution of the Russian Federation and federal law is also evident when a judge, having established that the accepted regulatory acts are not consistent with the Constitution of the Russian Federation or federal law, must refuse to apply such acts and must render a decision on a case based on the Constitution of the Russian Federation or federal law. VII

The Issue of Clarification

Along these lines, within the context of judicial independence, I would like to discuss the matter of Russian courts applying so-called clarifications of the higher courts that they render on various matters of applying the norms of material and procedural rules; as well as matters of the obligations of the indicated higher-standing judicial instances (cassation or supervisory), which it grants to lower-standing instances when canceling its decision and transferring a case for a new review. Among established Russian legal traditions is when higher judicial bodies publish clarifications of judicial precedent in abstract form without reference to a specific case. In this case, we are talking about the legal documents of the higher judicial bodies that contain clarifications on practice: decrees of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, and reviews of judicial precedent approved by the Judicial Board of the Supreme Court of the Russian Federation. It should be noted here that clarifications of the higher judicial bodies carry substantial regulatory significance for judicial precedent as well as for other enforcement practice. They play a substantial role in overcoming the breaches in legal legislation that contradict and conflict with current and functioning legislation, and they act as the most important instrument for ensuring the unity of judicial precedent and the predictability of decisions rendered by the Russian courts. For a long period of time, matters of judicial legislation in Russian jurisprudence have been under discussion, including the matter of the legal nature of the clarifications of the higher judicial bodies. One of the main discussions concerns whether these clarifications should be considered as sources of law, and how legally binding these legal acts are for a court that is reviewing a specific case. Those who support judicial precedent consider the acts of the higher courts of the Russian Federation to be a source of Russian law, and that they contain

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clarifications on judicial precedent; and one of these types emphasizes standards, including formal clarity and obligation.11 Those who are against the idea of judicial legislation believe that the indicated acts of the higher courts are those of judicial interpretation, and that they are non-regulatory in nature and may not be recognized as sources of Russian law.12 A significant number of authors that do not consider the acts of the higher judicial bodies to be sources of law nevertheless note their unique regulatory nature and obligation.13 It is worth keeping in mind that currently, in terms of only the decrees of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, there are indications of federal law in respect of the obligations of the courts, as contained in their clarifications.14 However, neither legislation on judicial administration nor procedural legislation indicates such an obligation. There is not full clarity in the matter of how a court should act in cases when it has concluded that the clarification of judicial precedent is not in line with federal legislation, and what the legal consequences will be for the court not adhering to the indicated clarifications when rendering a decision on a specific case. The higher judicial bodies have also not formed a legal opinion on these matters. Indeed, the Plenum of the Supreme Court of the Russian Federation in its Decree No. 23 “On Judicial Decisions” of 19 December 2003, indicated that when rendering a decision, the court “should take into consideration the decrees of the Plenum of the Supreme Court of the Russian Federation that contain clarifications that have arisen in court practice when applying norms of material or procedural law that are applicable in the case.”15 It is clear that 11

12

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15

Zhuikov V.M. “On the matter of judicial precedent as a legal source” in Judicial precedent as a legal source (Moscow 1997). pp. 16–23. Marchenko M.N. Judicial legislation and magisterial law (Moscow 2008) pp. 418–419. Gros L.A. “On the Decree of the Plenum of the Supreme Court of the Russian Federation ‘On the judicial ruling’” (2004) 10 Arbitration and civil procedure. pp. 37–43. Nersesyants V.S. “Russian courts do not have law-making powers” in Judicial precedent as a legal source (Moscow 2000) p. 111. Bonner A.T. “Legal precedent in the Russian legal system” (2004) 3 Russian annual of civil and arbitration proceedings. p. 160. Cherdantsev A.F. Interpretation of the law and contracts. P. II. (Yekaterinburg 2000) pp. 55–56. paragraph 6, article 58 of the Law of the rsfsr “On Judicial Administration of the RSFSR,” paragraph 2, article 13 of Federal Constitutional Law No. 1-fcl “On Arbitration Courts in the Russian Federation” of 28 April 1995. Bulletin of the Supreme Court of the Russian Federation (2004) 2.

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the phrase “should take into consideration” is rather ambiguous and does not explain the legal meaning of the clarifications of the Plenum of the Supreme Court of the Russian Federation. In our opinion, regardless of the evaluation of the legal nature of the indicated clarifications, it is worth recognizing that from a practical point of view, judges currently view them as being obligatory. In this regard, when a judge is rendering a decision on a specific case, there is still the possibility that said judge could decide that the legal provisions formed in the clarifications of judicial precedent do not, in the judge’s opinion, correspond to the Constitution of the Russian Federation or to federal law. What should a judge do in this situation – apply the indicated clarifications contrary to his/her own decision or render a decision based on his/her own interpretation of the law? The concerned participants in a process may present this matter to the court for discussion. A judge may have doubts as to the legality of the clarifications, regardless of the opinion of those participating in the judicial proceedings; but in one or the other instance, a judge is unlikely to be able to avoid the clarifications that arise during this conflict. Naturally, in most instances, the clarifications of judicial precedent are based on the law; therefore, ignoring them, as a rule, will result in a judicial error. Nevertheless, it is not possible to exclude fully the possibility that the clarifications of judicial precedent could diverge from the provisions of the law. In regards to this, it is believed that a judge should have adequately concise legal reference points that allow for resolving the indicated conflict. It is advisable that a judge, as an independent legal official who must adhere only to the law when rendering a decision, be guided by the provisions of the law as he or she understands and interprets them. In the event that a judge applies a law contrary to the clarifications contained in an act of a higher judicial body, the said judge must more fully justify his/her dissent from the indicated clarifications. It makes sense that such an obligation of the judge be established as a regulatory act, and it is also possible to oblige a judge to send a copy of his/her decision to the judicial body that delivered the clarifications of judicial precedent. Moreover, it is advisable to require legally that a judge send an official petition to the higher judicial bodies on reviewing the clarifications of judicial precedent that in the judge’s opinion are not in agreement with the provisions of the law. However, in order to do this, it is necessary to have a special judicial oversight procedure to contest and review contentious provisions contained in the clarifications; however, such a procedure unfortunately is not currently stipulated in Russian legislation.

Chapter SIXTEEN

The Relationship of the Judiciary and Legislature in Australia1 HP Lee* In Australia, the judiciary at Commonwealth, State and Territory level, can be seen to be a branch of government which is separate from the legislative and executive branches and independent of them. The relationship between the judiciary and the other branches of government is generally one of mutual respect and there is a general subscription by all branches to the fundamental importance that there should be no unprincipled intromission into each other’s sphere of functions. The Commonwealth judiciary and the Commonwealth Parliament are provided for in the Commonwealth Constitution, an instrument described by Dixon J in the Australian Communist Party case2 as an instrument framed in accordance with many traditional conceptions. He added: “Among these I think that it may fairly be said that the rule of law forms an assumption.”3 In McGraw-Hinds (Aust.) Pty Ltd,4 Murphy J referred to the operation of the rule of law as an implication arising from the nature of Australian society.5 In attempting to understand the relationship between the judiciary and the legislature in Australia, it is essential to appreciate some fundamental propositions. The first is that the doctrine of parliamentary sovereignty is subject to the Constitution which provides a federal polity. The division of legislative powers between the Commonwealth and the States must of necessity require the judiciary to act as an arbiter when there is a conflict over the exercise of powers by the national parliament and a State parliament. Furthermore, as the 1 This article is a revised and expanded version of a paper delivered at a conference on judicial independence in Vienna, 19–21 May 2011. * HP Lee holds the Sir John Latham Chair of Law at Monash University. Professor Lee’s publications include The Australian Judiciary (2nd ed. Cambridge University Press, 2013) (co-author) and Judiciaries in Comparative Perspective (Cambridge University Press, 2011) (editor). 2 Australian Communist Party v. Commonwealth (1951) 83 CLR 1. 3 Ibid., at p. 193. 4 (1979) 144 CLR 633. 5 Ibid., at p. 670.

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processes of law-making are set out expressly in the constitutional framework, they pose questions of the extent the judiciary can ensure compliance with these processes. Another point to note is that the national constitution does not incorporate a Bill of Rights. Neither is there a federal statutory Bill of Rights. The final fundamental point to note is that in ruling on the validity of the legislation of parliaments, courts often stress that they are not concerned with the desirability of the legislation. As is often said, this is a matter calling for political wisdom. Dixon CJ in Burton v. Honan6 said: “In the administration of the judicial power in relation to the Constitution there are points at which matters of degree seem sometimes to bring forth arguments in relation to justice, fairness, morality and propriety, but these are not matters for the judiciary to decide upon.”7 I shall provide a brief excursus on the inter-action between these two branches of government against a backdrop of the rule of law. I shall focus on: (1) judicial intervention in the law-making process; (2) legislation impacting  on  specific court decisions; (3) protecting the integrity of state courts; (4) restricting parliamentary intrusions into fundamental guarantees, (5) parliamentary attempts to restrict courts’ jurisdiction, (6) accountability of the judiciary to parliament, and (7) parliamentary restructuring of courts. I

Judicial Intervention in the Law-Making Process

The High Court of Australia in Egan v. Willis8 remarked that “the primary role of Parliament is to pass laws.”9 In Australia some doubts have been expressed as to whether Australian courts have a jurisdiction to intervene in the lawmaking process by, for instance, issuing an injunction to restrain the presentation of a Bill to the Governor (at State level) or the Governor-General (at federal level) for the royal assent. An injunction is a remedy which has coercive effect. Lord Diplock, speaking for the majority of the Privy Council in Rediffusion (Hong Kong) Ltd v. Attorney-General of Hong Kong,10 said that in Australia, the question was not one of jurisdiction rather than of a “settled practice.”11 This issue in Australia has arisen in the context of an application for 6 7 8 9 10 11

(1952) 86 CLR 169. Ibid., at p. 179. (1998) 195 CLR 424. Ibid., at pp. 451–452 per Gaudron, Gummow and Hayne JJ. [1970] AC 1136. Ibid., at p. 1155.

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an injunction to restrain the Speaker of a legislature from presenting a Bill, enacted by the normal law-making procedures, for the royal assent. Kirby P in Eastgate v. Rozzoli12 said that if an injunction were issued there would be an “expec[tation]” that it would be obeyed. He added: “If, however, Parliament declined to accept a perceived intrusion of another branch of Government in its affairs, a risk of disobedience might arise. The court would then be faced with grave difficulty in enforcing its orders.”13 To minimize the risk of a confrontation between the judiciary and the legislature, Australian courts have reached an accommodation of the extent to which they will exercise judicial supervision over the observance of the requirements of the law-making processes of parliaments. The Australian courts seek to intrude as little as possible into the inner workings of parliament. It will allow the law-making process to be completed and then to step in to pronounce upon the validity or invalidity of the Act by means of declaration, which is a non-coercive remedy, a position succinctly put by Kirby P: “It is now settled practice in Australia that such an injunction will virtually never be issued, nor a declaration made, at that stage. It will be left to the applicant to seek relief after the Royal Assent has been given and the Bill has become law.”14 Kirby P explained this accommodation in the following fashion: It is in this way that the Courts of Australia have achieved an appropriate balance between: (a) The fulfilment of their role as guardians of the rule of law, including in respect of any requirements that may be laid down by law and which parliament is obliged to obey in respect of the passage of a particular law; and (b) The respect which is conventionally accorded to a separate branch of Government with its own ancient rights and privileges reflected in the Bill of Rights of 1689, established by longstanding tradition and recognised in many places, including in the law of Parliament.15 12 13 14 15

(1990) 20 NSWLR 188. Ibid., at p. 193. Ibid., at p. 199. (1990) 20 NSWLR 188, 198–199. The cases referred to by Kirby P included Attorney-General (NSW) v. Trethowan (1931) 44 CLR 394; McDonald v. Cain [1953] VLR 411; Hughes and Vale Pty Ltd v. Gair (1954) 90 CLR 203; Clayton v. Heffron (1960) 105 CLR 214; Cormack v. Cope (1974) 131 CLR 432; Rediffusion (Hong Kong) Ltd v. Attorney-General of Hong Kong [1970] AC 1136.

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Despite adopting a policy of judicial restraint in relation to intervention in the law-making process, a caveat was expressed by Barwick CJ in Cormack v. Cope16 to ensure that the courts retain their role as guardians of the Constitution: Whilst it may be true the court will not interfere in what I could call the intra-mural deliberative activities of the Parliament, it has both a right and a duty to interfere if the constitutionally required process of lawmaking is not properly carried out…17 Barwick CJ was not prepared to accept that judicial intervention was confined to declaring a law void only after it had completed the process. He said: I[I]n an appropriate, though no doubt unusual, case when moved by parties who have an interest in the regularity of the steps of the law-making process at the time intervention is sought, the Court is able, and indeed in a proper case bound, to interfere.18 In Victoria v. Commonwealth (pma case)19 the High Court invalidated the impugned legislation on the basis that it failed to comply with the interval of three months between when the Senate first rejects or “fails to pass”20 the Bill and the second passage of the Bill in the House of Representatives as set out in Section 57 of the Commonwealth Constitution. Section 57 provides a mechanism for resolving “deadlocks”21 between the two houses of parliament. On this occasion, the law was challenged after it had been assented to. If it had been a challenge to restrain the further deliberations of the proposed law when it was clear that the three months interval was not satisfied, arguably this would amount to a likely case for the courts to intervene even before all the steps in Section 57 had been completed as this would be a case where the “constitutionally required process of law-making”22 has not been properly carried out. 16 17 18 19 20 21 22

(1974) 131 CLR 432. Ibid., at p. 453. Ibid., at p. 454. (1975) 134 CLR 81. Ibid., at p. 124. Ibid., at p. 195. (1974) 131 CLR 432 453.

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Legislation Impacting on Courts and Court Decisions

In Australia there is no equivalent of the provision in the United States Constitution which prohibits both the United States Congress and the State legislatures from passing such legislation. Nevertheless, in Polyukhovich v. Commonwealth,23 the High Court expressed the view that federal legislation amounting to a Bill of Attainder would be invalid.24 Such legislation would be viewed as amounting to an unconstitutional “usurpation”25 of the judicial power. However, there is judicial authority that an ex post facto law is valid.26 In Australian Building Construction Employees’ and Builders Labourers’ Federation v. Commonwealth,27 the High Court said: It is well established that Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution…It is otherwise when the legislation in question interferes with the judicial process itself, rather than with the substantive rights which are at issue in the proceedings.28 In Chu Kheng Lim v. Minister for Immigration,29 a statutory provision that required a court “not to order the release from custody of a designated person” was held to be invalid as it amounted to “a direction by the Parliament to the courts as to the manner in which they are to exercise their jurisdiction.” There are judicial indications that legislative attempts by parliament to require a court “to proceed in the manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to the facts determined in accordance with rules and procedures which truly permit the facts to be ascertained”30 23 24

25 26 27 28 29 30

(1991) 172 CLR 1. A Bill of Attainder is “a legislative enactment which inflicts punishment without a judicial trial”: ibid at 535 per Mason CJ. A Bill of Pains and Penalties is one where the penalty is other than death. (1991) 172 CLR 1 708. R v. Kidman (1915) 20 CLR 425. (1986) 161 CLR 88. Ibid., at p. 96 per Gibbs CJ, Mason, Brennan, Deane and Dawson JJ. (1992) 176 CLR 1. Nicholas v. The Queen (1998) 193 CLR 173, 208–209 per Gaudron J.

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would be invalidated.31 Increasingly the principle of natural justice is being recognized as a constitutionally entrenched “defining characteristic” of judicial power. Parliament can also seek to negate the effect of a particular judicial decision if it regards the judicial ruling as unpalatable. The High Court, for instance, in the 1995 case of Minister for Immigration and Ethnic Affairs v. Teoh,32 had held that, absent statutory or executive indications to the contrary, there would be a legitimate expectation that decision-makers would act in conformity with a treaty when ratified. Two joint ministerial statements issued in 1995 and 1997 expressly rejected the view that entry into a treaty would provide the basis for an invocation of a legitimate expectation that a decisionmaker would act in conformity with the terms of the treaty. Doubts have been raised as to the legality of these statements. The Commonwealth Parliament made attempts to negate the Teoh ruling by introducing the Administrative Decisions (Effect of International Instrument) Bill 1995 with the following key provision: The fact that Australia is bound by, or a party to, a particular international  instrument, or that an enactment reproduces or refers to a particular international instrument, does not give rise to a legitimate expectation, on the part of any person, that: (a) an administrative decision will be made in conformity with the requirements of that instrument; or (b) if the decision were to be made contrary to any of those requirements, any person affected by the decision would be given notice and an opportunity to present a case against the taking of such a course.33 The Commonwealth Parliament subsequently abandoned these attempts. The High Court in a subsequent case has foreshadowed a retreat from the Teoh ruling regarding the use of ratification of a treaty by the Australian polity.34 Although “the role of international treaties in generating a legitimate expectation”35 was not in contention in Lam, the extent to which the High Court in 31 Ibid. 32 (1994) 183 CLR 273. 33 Administrative Decisions (Effect of International Instrument) Bill 1995s. 4, s. 4(a), s. 4(b). 34 Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex part Lam (2003) 214 CLR 1. See A Duxbury, “The Impact and significance of Teoh and Lam” in M Groves and H P Lee (eds), Australian Administrative Law – Fundamentals, principles and Doctrines (Cambridge 2007) 299, 307. 35 Ibid., at p. 315.

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Lam dealt with the issue “is an indication of the depth of feeling regarding the need to maintain the proper constitutional functions of the executive, the parliament and the judiciary.”36 III

Protecting the Integrity of State Courts

The High Court has imposed a constraint on the legislative capacity of state parliaments by invalidating legislation enacted by state parliaments which affects the integrity of state courts. An ad hominem piece of legislation, the Community Protection Act 1994 (nsw) of the New South Wales Parliament was invalidated in Kable v. Director of Public Prosecutions.37 The legislature, through the extraordinary enactment, was creating a perception that the judiciary was “apt to be seen as but an arm of the executive which implements the will of the legislature.”38 In South Australia v. Totani,39 French CJ said that “judicial independence is an assumption which underlies Ch III of the Constitution, concerning the exercise of the judicial power of the Commonwealth”40 and that it should be maintained in “reality and appearance for the courts created by the Commonwealth and for the courts of the States and Territories.”41

36

A Duxbury, “The Impact and significance of Teoh and Lam” in M Groves and H P Lee (eds), Australian Administrative Law – Fundamentals, principles and Doctrines (Cambridge 2007) 299, 315. 37 (1996) 181 CLR 51. For an analysis of Kable see HP Lee, “The Kable Case: A Guard-Dog that Barked But Once?” in G Winterton (ed), State Constitutional Landmarks (Sydney 2006), pp. 390–415. The literature on Kable is extensive. See generally: G Carney, “Wilson and Kable: the Doctrine of Incompatibility – an Alternative to the Separation of Powers?” (1997) 13 Queensland University of Technology Law Journal 175; R Hardcastle, “A Chapter III Implication for State Courts: Kable v DPP” (1998) 3 Newcastle Law Review 13; P Johnston and R Hardcastle, “State Courts: the Limits of Kable” (1998) 20 Sydney Law Review 216; P Johnston, “State Courts and Chapter III of the Commonwealth Constitution: Is Kable’s Case Still Relevant?” (2005) 32 University of Western Australia Law Review 211; R Orr, “Kable v DPP: Taking Judicial Protection Too Far?” (1996) 11 AIAL Forum 11; K Walker, “Persona Designata, Incompatibility and the Separation of Powers” (1997) 8 Public Law Review 153, 164–166; F Wheeler, “The Kable Doctrine and State Legislative Power Over State Courts” (2005) 20(2) Australasian Parliamentary Review 15; A A McCunn, “The search for a single standard for the Kable principle” (2012) 19 Australian Journal of Administrative Law 93. 38 Ibid., at p. 134 per Gummow J. 39 State of South Australia v. Totani (2010) 242 CLR 1. 40 (2010) 242 CLR 1, 20 per French CJ. 41 Ibid.

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Given that the text and structure of Ch III of the Constitution postulate an integrated Australian court system for the exercise of the judicial power of the Commonwealth, French CJ said that there should be “no distinction, so far as concerns the judicial power of the Commonwealth, between State courts and federal courts created by the Parliament.” He added “that the consequences of the constitutional placement of State courts in the integrated system” include the following: 2.

A State legislature cannot confer upon a court of a State a function which substantially impairs its institutional integrity and which is therefore incompatible with its role as a repository of federal jurisdiction. 3. State legislation impairs the institutional integrity of a court if it confers upon it a function which is repugnant to or incom­ patible with the exercise of the judicial power of the Com­‑ monwealth. 4. The institutional integrity of a court requires both the reality and appearance of independence and impartiality. a. The principles underlying the majority judgments in Kable and further expounded in the decisions of this Court which have followed after Kable do not constitute a codification of the limits of State legislative power with respect to State courts. Each case in which the Kable doctrine is invoked will require consideration of the impugned legislation because [citation omitted]: ‘the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes’”. He continued: For legislators this may require a prudential approach to the enactment of laws directing courts on how judicial power is to be exercised, particularly in areas central to the judicial function such as the provision of procedural fairness and the conduct of proceedings in open court. It may also require a prudential approach to the enactment of laws authorising the executive government or its authorities effectively to dictate the process or outcome of judicial proceedings.42 42

Ibid., at p. 169.

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Restricting Parliamentary Intrusions into Fundamental Guarantees

It is well known that there is no equivalent of a comprehensive Bill of Rights at the federal level. Only Victoria and the Australian Capital Territory have a statutory form of a Bill of Rights. Sir Gerard Brennan said: So long as the fundamental postulate of the Constitution continues to be the rule of law in the hands of the Courts, the individual can be protected against an unlawful exercise of power. However, the Courts are subject to the statutory directions of the Parliament. The consequence is that, if the statute is oppressive, injustice must follow. There can be some amelioration of oppression by judicial interpretation of statutes and development of the common law so as to preserve human rights and fundamental freedoms. But under our present Constitution, it would be impermissible to strike down laws simply because they offend human rights and fundamental freedoms. That may be the function of a court armed with a Bill of Rights.43 In Nationwide News Pty Ltd v. Wills44 Brennan J said: A court will interpret laws of the Parliament in the light of a presumption that the Parliament does not intend to abrogate human rights and fundamental freedoms but the court cannot deny the validity of an exercise of a legislative power expressly granted merely on the ground that the law abrogates human rights and fundamental freedoms or trenches upon political rights which, in the court’s opinion, should be preserved.45 The High Court in Union Steamship Co of Australia Ltd v. King46 observed that the constitutional formula “peace, order and good government”47 does not confer on a court a jurisdiction to strike down legislation as the words contained in the formula are not words of limitation. The High Court tantalisingly 43 44 45

46 47

G Brennan, “The Parliament, the Executive and the Courts: Roles and Immunities” (1997) Bond Law Review 136, 147 (footnotes omitted). (1992) 177 CLR 1. (1992) 177 CLR 1, 43; See G Brennan, “Human Rights, International Standards and the Protection of Minorities” in P Cane (ed), Centenary Essays for the High Court of Australia (Brisbane 2004), 33, 4. (1988) 166 CLR 1. Ibid., at p. 4.

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left open the question whether the exercise of legislative power “is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law.”48 Nevertheless, the development by the High Court of a constitutional jurisprudence of “implied rights” stemming from the landmark cases of Nationwide News Pty Ltd v. Wills49 and Australian Capital Television Pty Ltd v. Commonwealth (actv case)50 has resulted in the High Court constraining the capacity of the legislatures, at both federal and state level, to legislate in such a way as to encroach on an implied freedom of political communications.51 The provisions of the Commonwealth Constitution that the House52 and the Senate53 be composed of members “directly chosen by the people” give rise to the implication that for the choice to be meaningful there must be the freedom of political communication among the people. Legislation of the Commonwealth Parliament which impinges on this implied right would be vulnerable to constitutional challenge and invalidation. The implied freedom was subsequently extended in operation to the states.54 V

Parliamentary Attempts to Restrict Courts’ Jurisdiction

Relations between the courts and parliament become more difficult when a parliament desires to restrict the role of the courts in exercising the power of judicial review of administrative decisions by enacting “privative” or “ouster” clauses. It has been said that the Australian case law on privative clauses is “best understood as a site of power struggles between courts and legislatures.”55 Generally, a state of equilibrium has been reached in reconciling the exercise of sovereign power by the parliament and the maintenance of the rule of law by the courts. Judicial decisions highlight the accommodation through a restrictive construction of such clauses and an insistence that only clear words

48

49 50 51 52 53 54 55

Ibid., at p. 10. For a discussion on this case and Durham Holdings v New South Wales (2001) 205 CLR 399 and Broken Hill Proprietary v. Dagi [1996] 2 VR 117, 204 per Hayne JA (dissenting), see G Taylor, The Constitution of Victoria (Sydney 2006) 214–217. (1992) 177 CLR 1. (1992) 177 CLR 106. L Zines, “A Judicially Created Bill of Rights?” (1994) 16 Sydney Law Review 166,180. Commonwealth of Australia Constitution Act, s. 24. Ibid., at s. 7. See e.g. Stephens v. West Australian Newspapers (1994) 182 CLR 211. P Cane and L McDonald, Principles of Administrative Law – Legal Regulation of Governance, 2nd ed., (Oxford 2012) p. 206.

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can deprive the courts of their jurisdiction: this is exemplified by “final and conclusive” statutory provisions which are construed as merely prohibiting “appeal” but not precluding “judicial review.” In Australia, the problem is compounded by Section 75(v) of the Commonwealth Constitution which provides for the High Court to have original jurisdiction in all matters “[i]n which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.” The High Court expounded the view that because these remedies are “constitutional writs” they are entrenched and therefore the Commonwealth Parliament cannot legislate to remove the ability of the High Court to grant these remedies where there is a “jurisdictional error” committed by an “officer of the Commonwealth.” In order not to invalidate an all-embracing privative clause which is aimed at preventing judicial review on the grounds of “jurisdictional error,” Dixon J in R v. Hickman; Ex parte Fox and Clinton56 expounded a “compromise” construction which would preclude the invalidation of the impugned privative clause “provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.”57 This “Hickman formula” is arguably difficult to comprehend and extremely difficult to apply. Sir Anthony Mason described the Hickman formula as “an artificial rule of construction designed to achieve a compromise which will give some effect to a privative clause but certainly not the effect which the legislature intended.”58 In Plaintiff S157/200259 the High Court “reconceived [the Hickman formula] in a way which clearly limits its effectiveness in diminishing the efficacy of the High Court’s [Section] 75(v) judicial review jurisdiction.”60 Gaudron, McHugh, Gummow, Kirby and Hayne JJ In Plaintiff S157/2002 said that the constitutionally entrenched jurisdiction of the High Court “exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction.”61 They added: 56 57 58

59 60 61

(1945) 70 CLR 598. Ibid., at p. 615. A Mason, “The Foundations and the Limitations of Judicial Review” (2002) 31 Australian Institute of Administrative Law Forum 1, 20. See: E Campbell and M Groves, “Privative Clauses and the Australian Constitution” (2004) Oxford University Commonwealth Law Journal 51. [2003] HCA 2, (2003) 211 CLR 476. P Cane and L McDonald, Principles of Administrative Law – Legal Regulation of Governance, 2nd ed., (Oxford 2012) pp. 193. [2003] HCA 2, (2003) 211 CLR 476, 514.

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In any written constitution, where there are disputes over such matters, there must be an authoritative decision-maker. Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this Court. The Court must be obedient to its constitutional function. In the end, pursuant to s 75 of the Constitution, this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.62 The approach of the High Court was viewed by Peter Cane and Leighton McDonald as amounting to a “political compromise.”63 They said: On the one hand, the court upheld the constitutional validity of the clause. Striking the clause down as invalid may have elicited further attacks against the judiciary which may ultimately have adversely affected the High Court’s political legitimacy. On the other hand, the clause was restrictively interpreted, enabling the court to maintain its declared commitment to the rule of law.64 In Kirk v. Industrial Relations Commission (nsw),65 the High Court of Australia enunciated a degree of constraints on the enactment by State legislatures of privative clauses in relation to the exercise of supervisory jurisdiction by the State Supreme Courts. Kirk v. Industrial Relations Commission (nsw) dealt with Section 179(1) of the Industrial Relations Act 1996 (nsw) which provides that a decision of the Industrial Court “is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal.”66 The High Court said: “Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.”67 62 Ibid., at [104]. See: Bodruddaza v. Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 in which the High Court construed a time-limit clause as being inconsistent with s 75(v) of the Commonwealth Constitution. 63 P Cane and L McDonald, Principles of Administrative Law – Legal Regulation of Governance, 2nd ed., (Oxford 2012), p. 206. 64 Ibid. 65 (2010) 239 CLR 531. 66 s. 179. 67 (2010) 239 CLR 531, 100.

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In essence, the High Court held that “a privative clause in State legislation cannot deprive the Supreme Court of the State of its supervisory jurisdiction over inferior courts, tribunals or administrative decision-makers, where the decision under challenge is affected by jurisdictional error,”68 leading to the observation: “Just as the Commonwealth Parliament cannot deny the High Court’s minimum supervisory jurisdiction, so State Parliaments cannot deny an equivalent jurisdiction to the Supreme Courts of the States.”69 In the context of privative clauses in the United Kingdom, Professor Christopher Forsyth said that “the courts have been forced to rebel against Parliament.”70 The relationship of the legislature and the judiciary is aptly put by him in the following way which has resonance in Australia: Parliament is mostly concerned with short-term considerations and is strangely indifferent to the paradox of enacting law and then preventing the courts from enforcing it. The judges, with their eye on the long term and the rule of law, have made it their business to preserve a deeper constitutional logic, based on their repugnance in allowing any subordinate authority to obtain uncontrollable power. Needless to say, they have maintained throughout that they are correctly interpreting Parliament’s true intentions.71 VI

Accountability of the Judiciary to the Parliament

While the courts exercise an oversight role regarding the legislation enacted by the parliaments, they are subject to a degree of accountability in the parliamentary forum, either in terms of individual capacity or as an institution. That accountability can take the form of annual reports of the operations of the courts, comments and observations by ministers and other parliamentarians during question time. On occasions, critical comments have been made by parliamentarians and these in turn give rise to controversy as to the need to

68

R Sackville, “The constitutionalisation of State administrative law” (2012) 19/3 Australian Journal of Administrative Law 127,128. 69 Ibid. 70 H W R Wade & C FR Forsyth, Administrative law, 10th ed., by C Forsyth, (Oxford 2009) p. 616. 71 Ibid., at 617.

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reconcile freedom of speech, parliamentary privilege and maintaining public confidence in the judiciary.72 The Commonwealth Constitution provides for judges of the High Court and the various federal courts created by Parliament to be removed on the grounds of proved misbehaviour or incapacity by an address of each House of Parliament. The drawn out saga involving Justice Lionel Murphy of the High Court of Australia illustrates the important role of a parliament to ensure that judges conduct themselves without bringing the institution into disrepute.73 That saga reiterates the importance of a demarcation of roles between the courts and the parliament. Andrew Wells QC (a member of the Parliamentary Commission of Inquiry74) describes that demarcation in the following appropriate manner: [T]he Houses of parliament have the power and responsibility of deciding whether any conduct of a judge which is the subject of a motion to address amounts to misbehaviour. That does not however make them masters of the law: it means rather that they must conscientiously accept the legal test of what is misbehaviour and decide, as a matter of fact and degree, whether behaviour proved against the judge meets the criteria embodied in the test. It is no part of this ruling that the Houses of Parliament may vary that test from case to case.75 A narrow construction of “misbehaviour” would indubitably constrain the scope for removing a judge. A broad view is one which is preferred by the Parliamentary Commission of Inquiry. Sir George Lush expressed the broad view as follows: If their conduct, even in matters remote from their work, is such that it would be judged by the standards of the time to throw doubt on their own suitability to continue in office, or to undermine their authority as 72 73 74 75

E Campbell and M Groves, “Attacks on Judges under Parliamentary Privilege: a Sorry Australian Episode” [2002] Public Law 626–639. HP Lee and E Campbell, The Australian Judiciary, 2nd ed., (Cambridge 2012), pp. 117–120. The other members were Sir Richard Blackburn and Sir George Lush. “Parliamentary Commission of Inquiry Re The Honourable Mr Justice Murphy” (1986) Australian Bar Review 203; Lee and E Campbell The Australian Judiciary 2nd ed., Cambridge 2012), pp, 117–120. “Parliamentary Commission of Inquiry Re The Honourable Mr Justice Murphy” (1986) Australian Bar Review 203, 249.

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judges or the standing of their courts, it may be appropriate to remove them.76 In 1989 the Queensland Parliament voted to remove Justice Angelo Vasta from the Supreme Court of Queensland.77 The Standing Orders of the Australian Senate and House of Representatives expressly provide that no member of the House may use “offensive words” against any judicial officer and that “all imputations of improper motives and all personal reflections” on such officers should be considered “highly disorderly.”78 This rule “is based on the need for comity and mutual respect between the legislature and the judiciary, and the requirement that judicial officers be protected from remarks which might needlessly undermine respect for the judiciary.”79 A “sorry episode”80 occurred in 2002 when a senator (Bill Heffernan), under the cover of parliamentary privilege, launched a baseless attack on a highly respected Justice of the High Court of Australia (Justice Michael Kirby), who is a professed homosexual. The senator strategically left the naming of the judge till the end of his speech in the house to avoid being stopped in his tracks for violating the Standing Order. In the end it was established that the allegations were unfounded and the document obtained by and relied on by the senator turned out to be fabricated. The controversy led to the standing down of the senator from his position of parliamentary secretary to the Cabinet and his eventual resignation from the position.81 While not all Houses of Australian legislatures have adopted Standing Orders of this kind, their Standing Orders commonly include one which declares that where the Standing Orders do not cover a particular matter, the practices of the House of Commons of the Parliament of the United Kingdom are to be applied.82 In that House, it is accepted that, in debate, reflections must not be cast upon the conduct of judges, or their character or motives, or charges of a personal nature made against them. However, this general rule does not apply where a substantive motion is moved, for example, to appoint 76 77 78 79 80 81 82

Ibid., at p. 210. HP Lee and E Campbell, The Australian Judiciary, 2nd ed., (Cambridge 2012), pp. 120–122. Senate SO 193(3); HR SOs 75 and 78. AR Browning (ed), House of Representatives Practice, 2nd ed. (Canberra 1989) p. 231. This episode is discussed in E Campbell and M Groves, “Attacks on Judges under Parliamentary Privilege: A Sorry Episode” (2002) Public Law, 626. Ibid., at 629. See, eg, Standing Orders and Rules of the Legislative Assembly of Victoria, r 50.

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a select committee to inquire into the conduct of a judge.83 This is also the position in the Australian legislatures. An interesting question is posed regarding the ability of a House of Parliament to compel a sitting judge to testify before a parliamentary committee. It is not fully settled whether such an attempt is valid given the fundamental importance placed by the High Court of the separation of judicial power.84 The Senate Select Committee on the Conduct of a Judge which was appointed to inquire and report on the authenticity of certain tapes and transcripts and the conduct of Justice Murphy noted in its report that the judge declined to appear before the Committee although submissions were made by his counsel. In the case of the Senate Select Committee on Allegations Concerning a Judge the Committee in setting out its procedures resolved that Justice Murphy “shall not be summoned to give evidence.” It was up to Justice Murphy whether to appear before the Committee. However, if he chose to give evidence he would be sworn and subject to examination.85 There have been recent reforms to the system for disciplining of judges.86 The protracted Murphy affair culminated in the setting up on an ad hoc basis of a Parliamentary Commission of Inquiry. The criticism of the unsatisfactory nature of establishing an ad hoc committee without statutory backing has now been overcome. The Commonwealth Parliament has enacted to place on a statutory footing the power to create a parliamentary commission of inquiry regarding the removal of federal judicial officers and also to set out the modes for dealing with complaints against these judicial officers (except for High Court judges). VII

Parliamentary Restructuring of Courts

In the final analysis, a parliament desirous of controlling a court which is perceived by it of exceeding its remit may legislate to abolish such a court. Fortunately, this has never occurred in Australia. Recently, the Commonwealth Parliament legislated to rename the Federal Magistrates Court as the Federal 83

Erskine May’s Treatise on the Laws, Privileges, Proceedings and Usage of Parliament, 21st ed. (London 1989) 379–380. 84 E Campbell, “Judges at the Bar of Parliament” (1999) 18 Australian Bar Review 131. 85 Senate Select committee on Allegations Concerning a Judge, report to the Senate, October 1984, p. 44. 86 Courts Legislation Amendment (Judicial Complaints) Act 2012 (Cth); Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth).

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Circuit Court of Australia.87 As this was purely a name change it did not evoke any controversy. However, a government on occasions, may feel the need to restructure the court system with a view to improving efficiency in the system or providing another tier of appeal. However, a restriction is placed on a state legislature regarding the Supreme Court of the state. In Kable, McHugh J said that because Section  73 of the Commonwealth Constitution provides for a right of appeal from the Supreme Court of each state to the High Court of Australia the continued existence of the State Supreme Court is implied. He added: It necessarily follows, therefore, that the Constitution has withdrawn from each State the power to abolish its Supreme Courts or to leave its people without the protection of a judicial system. That does not mean that a State cannot abolish or amend the constitutions of its existing courts. Leaving aside the special position of the Supreme Court of the States, the States can abolish or amend the structure of existing courts and create new ones. However, the Constitution requires a judicial system in and a Supreme Court for each State and, if there is a system of State courts in addition to the Supreme Court, the Supreme Court must be at the apex of the system.88 Controversy may arise when a government seeks to abolish an existing tier of courts or independent tribunals and their replacement by the creation of new courts or tribunals. On one such occasion, the practice was denounced as representing a “shocking erosion of the principle of independence of judicial and like decision-makers.”89 The New South Wales government had sought to reorganize the magistracy in the state by enacting the Local Courts Act 1982 (nsw). However, five of the serving magistrates who applied were not appointed to the new Local Courts based on the policy that serving magistrates who applied would be appointed to the new Local Courts unless they were 87

Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth). In the state of Victoria, the state legislature enacted legislation to restrict the appointment of reserve judges to persons who previously have held judicial appointments, deviating from a past practice of appointing them from a wider pool which included barristers, solicitors  and legal academics: Courts Legislation Amendment (Reserve Judicial Officers) Act 2013 (Vic). 88 (1996) 189 CLR 51, 111. 89 The Ronald Wilson Lecture 1994, published as “Abolition of Courts and Nonreappointment of Judicial Officers” (1995) 12 Australian Bar Review 181, 183.

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considered unfit for judicial office.90 The Chairman of the Bench of Stipendiary Magistrates had written to the Attorney-General stating that there were strong  reasons based on their past performance not to reappoint these five magistrates. The Court of Appeal of nsw, dealing with an appeal from Lee J of the Supreme Court, declared that the Attorney-General’s decision not to recommend the appointment of the five magistrates was void as there had been a denial of procedural fairness arising from the failure of the Attorney-General to give the five magistrates any opportunity to respond to the allegations. In consequence, the five magistrates were told that they could now apply for appointment to the Local Courts in competition with other applicants. Mr. Quin, who was one of the five magistrates, contended that his application should be considered on its individual merits without reference to other applications. The decision of the Court of Appeal in Quin’s favour was reversed by the High Court.91 The majority of the High Court found that the reorganisation of the court structure in New South Wales was a genuine exercise. Mason CJ said that no suggestion was made, that its object was simply to enable the removal from office “by covert means” of the magistrates concerned.”92 Mason CJ added: “That case fails because it would require the court to compel the Attorney-General to depart from a method of appointing judicial officers which conforms to the relevant statutory provision, is within the discretionary power of the Executive and is calculated to advance the administration of justice.”93 The Constitution Act 1902 (nsw) was subsequently amended to ensure that a person who held an abolished judicial office is entitled (without loss of remuneration) to be appointed to and to hold another judicial office in a court of equivalent or higher status when the judicial office has been abolished by the abolition of a court.94 In commenting on the abolition or restructuring of specialist courts and tribunals, “usually in the area of industrial law and workers compensation,” 90 91 92 93

94

Only one magistrate did not apply. Attorney-General (NSW) v. Quin (1990) 170 CLR 1 (Mason CJ, Brennan and Dawson JJ; Deane and Toohey JJ dissenting). (1990) 170 CLR 1, 19. Ibid., at p. 24. Justice Kirby has described the majority decision of the High Court as a “most unfortunate decision”: M Kirby, “Abolition of Courts and Non-reappointment of Judicial Officers” (1995) 12 Australian Bar Review 181, 193. See Constitution Act 1902 (NSW) s. 56 as affected by the Constitution (Amendment) Act 1992 (No 106).

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Chief Justice Doyle of the Supreme Court of South Australia pointed out that the replacement or restructuring of a court “could be a convenient way to achieve indirectly what could not be achieved directly.”95 He added that the convention is “that the existing judges of the court that is abolished or restructured must be appointed to a court of equivalent status or to the new replacement court. Failing that, they should continue to hold office in the former court, even if the work of that court has come to an end.”96 VIII Conclusion The courts in Australia seek to ensure that the parliaments operate within the parameters of the powers provided by the constitutional framework at both federal and state level. It does this through exercising the power of judicial review, which extends to the invalidation of legislation of the federal and state legislatures. Decisions of the courts invalidating legislation of a parliament are, despite the occasional murmurings of disquiet about “judicial activism,” accepted and obeyed. Because Australia operates under a written constitution which constrains the powers of the other arms of government, the courts generally display “qualified judicial deference to the will and the judgment of the legislature.”97 Sir Anthony Mason remarked: In determining whether legislation is within constitutional power or consistent with constitutional prohibition and guarantees, courts allow a margin of appreciation for legislative judgment where appropriate.98 Overall, the relationship of the judiciary and the parliamentary institutions in Australia can be described as a healthy relationship characterized by mutual respect. 95 “Judicial Independence” (1997–1998) 16 Australian Bar Review 212, 215. 96 Ibid. 97 A Mason, “Courts, Constitutions and Fundamental Rights” in G Lindell (ed), The Mason Papers (Sydney 2007), p. 226. 98 Ibid.

Part Five Impartiality of the Judicial Process

∵

Chapter SEVENTEEN

Relations between the Court and the Parties in the Managerial Age Neil Andrews* I Introduction This article is dedicated to Marcel Storme1 and to Shimon Shetreet.2 Marcel Storme has consistently advocated, with great eloquence, the need for the * Professor of Civil Justice and Private Law, Faculty of Law, University of Cambridge; Fellow of Clare College, Cambridge; Bencher of Middle Temple, 2007; Member of the American Law Institute; Vice-President, International Association of Procedural Law. 1 Former, and heroically long-standing, President of the International Association of Procedural Law; and Emeritus Professor, Gent, Belgium; for example, M. Storme (ed.), Approximation of Judiciary Law in the European Union (Gent 1994); M. Storme (ed.), Procedural Laws in Europe: Towards Harmonization, (Maklu, Antwerpen/Apeldoorn 2003); M. Storme and B. Hess (eds.), Discretionary Power of the Judge: Limits and Control (Kluwer, Dordrecht, 2003). 2 Shimon Shetreet (Greenblatt chair of public and international law, Hebrew University of Jerusalem, Israel); an expert of great eminence and a pioneering scholar in the field of judicial independence and ethics. Awarded the 2010 International Jurists Award for maintaining the highest standards of legal education. Has been in recent years been Herbert Smith Visiting Professor at University of Cambridge, U.K. and Senior Academic Visitor at Clare College, Cambridge; and has been visiting professor of numerous U.S.A. law schools, and elsewhere. Shetreet was called to the Israeli Bar, 1969, and he has appeared before the Supreme Court of Israel in landmark cases. As a Minister he held high public offices: 1988 to 1996, and was a Member of the Knesset, the Israeli Parliament. Main works: Judges on Trial A Study of the Appointment and the Accountability of the English Judiciary (1976) (relied upon by the House of Lords in the Pinochet Case in January 1999; this and other works have also been relied upon as well in numerous highest court cases in Canada, Australia, New Zealand and India); Judicial Independence: The Contemporary Debate (1985); The Role of Courts in Society (1988); National Security and Free Speech (1991); Justice in Israel (1994); Women in Law (1998); The Good Land Between Power and Religion (1998 Hebrew); Law and Social Pluralism (2002); On Adjudication (2004) (Hebrew); S. Shetreet and C. Forsyth (eds.), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges (Martinus Nijhoff, Leiden and Boston, 2012); Uniform Civil Code: The Challenge of Implementing Uniform Civil Code for India, to be published by Oxford University Press (with Hiram Chodosh); Judges on Trial (2nd edn., Cambridge Univeristy Press, 2013), with Dr. Sophie Turenne; Shimon Shetreet, ‘The Normative Cycle of Shaping Judicial Independence in Domestic and International Law…’

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_018

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judge to perform a multi-faceted role. And Marcel has insisted that different procedural families should explore bridges to connect their traditional systems. His influence on comparative discourse has been inspirational and tireless. Shimon Shetreet has undertaken fundamental research on the relations between the court and the political system. His work has been pioneering, both in its empirical originality and in its principled rigour. He is responsible for the (continuing) project on judicial independence, Mt. Scopus International Standards of Judicial independence.3 The author and other procedural commentators have learned a great deal from these distinguished jurists. II

Main Themes of this Paper

These are: I.

civil justice is now expected to be a more civilised form of contest; litigants and their lawyers are expected to avoid opportunistic and combative tactics; instead they must approach civil proceedings in a co-operative manner; II. consistent with this, legal representatives are officers of the court; and so their overriding responsibility is to the interests of justice rather than their client; III. the court is no longer required simply to adjudicate at trial; the modern court is required to manage cases and to promote a range of litigious aims, including speedy and cost-effective resolution of disputes, and the promotion of opportunities for extra-curial settlement, especially by outof-court mediation; IV. like cinema-going, a traditional public event, trial is now in drastic decline; like the giant panda greater crested newt, trial is now an endangered species; V. expansion of mediation and arbitration has overlapped with the failure of the court system to control costs; but mediated settlements and confidential arbitral awards are beyond public scrutiny. III

Players and Officials

Who are the players? For the most part the parties will be legally represented. But litigants-in-person are quite common. They pose problems for the court

(2009) 10 Chicago J. of Int. L. 275–332. Shetreet is responsible for the (continuing) project on judicial independence, Mt. Scopus International Standards of Judicial independence. 3 http://law.huji.ac.il/upload/InternationalStandardsofJudicialInd2008.doc.

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system because the structure of pleading, fact-finding, exchange of documents, examination of witnesses, legal submissions, the conduct of appeals, are all matters requiring professional discipline, efficiency, and integrity. In England specialist advocates (barristers) are used for most court hearings, notably trial and appellate hearings. The professional division between different types of litigation lawyers has been maintained: overall control of the case rests with solicitors, who delegate specific tasks, such as advocacy or ‘advice on law or evidence’, to specialists, namely barristers. There is an analogy with construction companies who delegate specific tasks by sub-contracting them to specialists, such as plumbers and electricians. Barristers are the plumbers or electricians or tilers or roofers: advocates specialising in general common law, commercial, family, or Chancery. Who are the decision-makers? Judges sitting in the county courts or in the High Court are drawn from the ranks of the profession. They have learned their craft not at judicial college but during the cut-and-thrust of court-room advocacy and preparation of cases for hearings. They are butterflies who used to be caterpillars. Judges are not born or educated: they pupate. Another modern assumption in the civil sphere is that the decision-maker will be professional and competent. Unlike the USA (whose civil procedural peculiarities are legion and highly distinctive), English juries play a minor role in the adjudication of civil disputes. Adjudication at trial is nearly always by a single judge, without a jury.4 The civil jury’s virtual disappearance has transformed the rules of evidence. Civil evidence now displays a strong trend towards ‘free evaluation’, that is, assessment of relevant evidence liberated from the fetters of types of inadmissible evidence (the concept of ‘free evaluation’, or anti-formalism, is an evidential concept embraced in the American Law Institute/UNIDROIT’s ‘Principles of Transnational Civil Procedure’).5 4 Jury trial is confined to serious criminal cases (for example, murder, rape, armed robbery) and civil actions for defamation or misconduct by the police (the torts of defamation, malicious prosecution, and false imprisonment). 5 Rule 25: accessible at: http://www.unidroit.org/ensh/principles/civilprocedure/main.htm. Also published as American Law Institute/unidroit’s Principles of Transnational Civil Procedure (Cambridge University Press, 2006), 137 et seq.; the members of the drafting group were: Neil Andrews, University of Cambridge, U.K.; Professor Frédérique Ferrand, Lyon, France; Professor Pierre Lalive, formerly University of Geneva, sometime Goodhart Professor of Legal Science, Cambridge, in practice as an international commercial arbitrator, Switzerland; Professor Masanori Kawano, Nagoya University, Japan; Mme Justice Aida Kemelmajer de Carlucci, Supreme Court, Mendoza, Argentina; Professor Geoffrey Hazard Jr., now Hastings College of the Law, San Francisco, U.S.A.; Professor Ronald Nhlapo, formerly of

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Lawyers as Officers of the Court

Barristers and solicitors owe duties not just to the client but to the court and to the interests of justice. Their overriding duty is to the wider interests of justice. Lawyers must not allow themselves to be sucked down into a maelstrom by an over-commitment to their client. Thus all advocates (barristers or solicitors) owe: ‘a duty to the court to act with independence in the interests of justice’, as well as a duty to comply with prescribed professional rules, and ‘[both sets of duties] shall override any obligation which the person may have…if it is inconsistent with them’.6 Earlier the Court of Appeal had said: ‘the balance between the advocate’s duty to the client and the advocate’s duty to the court must reflect evolutionary change within the civil justice system. If evolutionary shifts are necessary to match civil justice reforms they should…be towards strengthening the duty to the court’.7 However, the modern system of remuneration of lawyers tolerates parties’ legal representatives having a financial interest in the case’s outcome. The Courts and Legal Services Act 1990 permitted lawyers to agree with litigants ‘conditional fee agreements’ (‘CFAs’), and this paved the way for implementation in 1995 in the case of personal injury litigation, and in 1998 expansion to most civil litigation. Recent legislation, the Legal Aid, Sentencing and Punishment of Offenders Act 2012, introduces into ordinary civil proceedings the USA-style contingency fee arrangements. Restraint and discipline are required in pleading a case. Claim forms and other species of a ‘statement of case’ (whether by a claimant or defendant) must be verified by a statement of truth.8 A dishonest statement exposes a person to contempt proceedings.9 If a party’s lawyer signs the statement of case, he might be liable for contempt if the client has authorised the lawyer to make a false statement and if the lawyer has made a statement in the truth of which he has no honest belief.10

6 7 8 9 10

the Law Commission, South Africa; Professor Dr. iur. Rolf Stürner, University of Freiburg, Germany, and Judge at the Court of Appeals of the German State Baden-Württemberg, Karlsruhe; the assistant to these discussions was Professor Antonio Gidi, now University of Houston Law Center. s. 42, Access to Justice Act 1999. Vernon v. Bosley (No. 2) [1999] QB. 18, C.A., per Thorpe L.J. C.P.R. 22.1(1)(a): on the question of inconsistent statements of case by one party, see Clarke v. Marlborough Fine Art (London) Ltd. [2002] 1 W.L.R. 1731, Patten J. C.P.R. 32.14. P.D. (22) 3.1, 3.7, 3.8; C.P.R. 32.14.

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Allegations of dishonesty should be pleaded only if there is clear evidence. The Bar Council’s Code of Conduct of the Bar of England and Wales states:11 ‘A practising barrister…must not draft any…pleading…containing…any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud…’. In Medcalf v. Mardell (2002), Lord Bingham said that this provision establishes: ‘an important and salutary principle… Counsel is bound to exercise an objective professional judgement whether it is…proper to lend his name to the allegation… [A]t the preparatory stage the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel to conclude that serious allegations could properly be based upon it’.12 Lawyers are also required to research the law. They must comb the sources for relevant precedent decisions and statutory rules. They should not get into the habit of filing away the law reports without reading them. They must actively seek out the latest law. In Copeland v. Smith (2000) Brooke LJ reminded lawyers that it is the duty of an advocate to draw relevant authority to the judge’s attention even if it the relevant authority is adverse to his client’s case.13 In this case, neither counsel had been aware of a particular decision because both had failed to research a point exhaustively. Court decisions must be adequately reasoned. But counsel must offer support to the court in the rendering of accurate judgments. In Re A (Children) (2011), Munby LJ said:14 ‘it is the responsibility of the advocate, whether or not invited to do so by the judge, to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge’s reasoning process’. More generally, the CPR (1998) was intended to change the culture of English court-based litigation. One of the aims of the Woolf reforms was that English civil procedure should abandon an antagonistic style and embrace co-operation between litigants and their lawyers. It was a bold, some might contend even a preposterous, idea that the parties’ lawyers should co-operate. However, after the Woolf changes were introduced in 1999, former Senior 11 12 13 14

(8th edn., 2004), para. 704(c)); on-line: see www.barcouncil.org.uk. Medcalf v. Mardell [2003] 1 A.C. 120, H.L. at [22], per Lord Bingham. Copeland v. Smith (Practice Note) [2000] 1 W.L.R. 1371, C.A. [2011] EWCA Civ 1205, [2012] 1 W.L.R. 595; [2012] C.P. Rep. 6; [2012] 1 F.L.R. 134; [2012] 1 F.C.R. 379; [2012] Fam. Law 8, at [16].

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Master Robert Turner saw evidence of such co-operation. But not everyone was prepared to co-operate. It was difficult to change the mind-set of some senior advocates. Although lawyers have adapted to the judicial expectation that they should no longer pursue their clients’ interests in a relentless and aggressive manner, practitioners report15 that the adversarial nature of the underlying contest remains a daily reality. It is true that correspondence between rival parties, which might be seen by the court in due course, is no longer couched in the aggressive terms which characterised pre-CPR dealings between adversaries. But the softer and more conciliatory tone of written exchanges under the CPR regime masks an intensely fought battle. The CPR system was applied top-down. Lord Woolf’s ‘CPR lieutenants’, for example, Brooke LJ, May LJ, and Lord Scott of Foscote, were very influential. This was a group of judges who enthusiastically promoted the CPR system’s new values. They ensured that those values percolated throughout the court system. Under their guidance early case law applications of the new code reflected the CPR’s core elements of efficiency, procedural discipline, and cost-effectiveness. Lord Neuberger MR (as he then was), in a lecture (2012),16 suggested that a sea-change has occurred since 1998: ‘The judiciary, and lawyers, have adapted pretty well to active case management over the last decade… It is something now with which we are all familiar; and more importantly we now have a generation of solicitors and barristers who know nothing other than a system where there is active case management. There are also many judges who have been appointed since 1999, who know no different approach to carrying out their judicial role… What was once novel is for many not just the norm but the only one they have known. It is unsurprising therefore that we have all got better at it…’ V

Constraints upon the Courts and upon Arbitral Tribunals

Judicial and arbitral decision-makers are required to render a judgment or award, following representations from the parties. Six fundamental 15 16

For example, London litigation partner, seminar, Cambridge March 2010. Lecture entitled ‘Docketing: Completing Case Management’s Unfinished Revolution’ (2012), at [11]: http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mor -speech-solicitors-cost-conference-lecture-feb2012.pdf. at [14].

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principles are associated with this relationship between the adjudicator and the parties: (i) the adjudicator’s impartiality and (ii) independence; (iii), the adjudicator’s duty to treat the parties equally, (iv) to listen to both sides and to respect each party’s right to controvert evidence or legal submission, and (v) the duty to reach a reasoned decision within (vi) a reasonable time. More generally, the numerous fundamental and important principles of civil justice can be arranged under these five headings, which are the five constellations of procedural principles: (1) advice and access: empowering  the parties; (2) conditions for sound decision-making; (3) an efficient process; (4) a fair process; and (5) upholding judgment. Of these numerous  principles, none can be regarded as detached from the judicial process. ADVICE AND ACCESS: EMPOWERING THE PARTIES (1) Rights of Legal Consultation and Representation (2) Access to Court and to Justice (3) Protection against Bad or Spurious Claims and Defences CONDITIONS FOR SOUND DECISION-MAKING (4) (5) (6) (7)

Judicial Independence Judicial Impartiality Publicity and Open Justice Judicial Duty to Give Reasons AN EFFICIENT PROCESS

(8) Judicial Control of the Civil Process to Ensure Focus and Proportionality (9) Avoidance of Undue Delay A FAIR PROCESS (10) Judicial Duty to Avoid Surprise: The Principle of Due Notice (11) Procedural Equality (equal respect for the parties) (12) Equal Access to Information, including Disclosure of Information between Parties (13) Fair Play between the Parties (14) Accuracy of Decision-making

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UPHOLDING JUDGMENT (15) Finality (16) Effectiveness The only principle which is not court/tribunal-centric is the principle of fair play between the parties. But in practice this principle is likely to require intense support by the courts if it is not to become an empty procedural piety. VI

The Managerial and Multi-Tasking Court

Courts now adjudicate, hear appeals, make decisions regarding costs, make decisions concerning enforcement, and in much litigation they are expected to manage the progress of the case. Before 1999, too many cases had been left to drift without official direction. These disputes had become the (lucrative) play-thing of rival teams of lawyers. If one goes back to the conduct of English civil proceedings in the 1960s, 70s and 80s, it had been common under that pre-cpr system for the action to commence just before expiry of the limitation period and to delay service of the ‘writ’ (now known as a ‘claim form’) for another twelve months. There would be no time-tabling. The first intervention of a judge would be at trial. Under the pre-cpr system, before the system of witness statements had been introduced, the trial judge would come to the case with a mind like a blank sheet. There was very little to read in advance. It was perceived that the judicial task was to sit at trial, listen, and give judgment. Under the 1998 procedural code, the Civil Procedure Rules (‘CPR (1998)’), also known as the ‘Woolf Reforms’,17 English judges have been granted wideranging powers to manage development of civil cases, especially in large actions. This was a fundamental change because, before 1998, English procedure had generally avoided pre-trial judicial management (although, even before the Woolf reforms, case management had emerged as a convenient and necessary technique in, notably, the Commercial Court, part of the High Court).18 17

18

Lord Woolf’s two reports are: Access to Justice: Interim Report (1995) and Access to Justice: Final Report (1996) both available on-line at: http://www.dca.gov.uk/civil/reportfr .htm. On the C.P.R. system from the perspective of the traditional principle of party control, N. Andrews, ‘A New Civil Procedural Code for England: Party-Control ‘Going, Going,

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English courts possess extensive ‘case management’ powers. In his reports of 1995–9619 Lord Woolf adopted this technique as the mainstay for actions on the ‘multi-track’, thus including all High Court litigation (this track covering more expensive county court litigation and all High Court actions). Case management has three main functions: to encourage the parties to pursue mediation,20 where this is practicable; secondly, to prevent the case from progressing too slowly and inefficiently; finally, to ensure that judicial resources are allocated proportionately, as required by ‘the Overriding Objective’ in cpr Part 1. This requires the court and parties to consider the competing demands of other litigants who wish to gain access to judges, the court’s ‘scarce resources’. In his 2011 lecture, ‘Achieving a Culture Change in Case Management’21 Sir Rupert Jackson noted that efficient case management requires: (i) judicial experience; (ii) adequate pre-hearing reading by judges and proper preparation by lawyers; (iii) the same judge should deal with each successive hearing (see also discussion below of docketing); (iv) there should be consistency between courts; (v) ‘robust but reasonably fair’ case management orders should be upheld by the Court of Appeal.22 In the same lecture23 Jackson noted the criticism that case management, if not applied efficiently, might itself become a drain on the system and increase the overall cost of litigation.24 He suggested that the legal system must steer a middle course between Scylla and Charybdis: ‘in this context Scylla is officious intermeddling by the courts, which gobbles up costs to no useful purpose’ and ‘Charybdis is laissez-faire litigation, which leaves the parties to swirl around in uncontrolled litigation—with all the problems which Lord Woolf identified in his Reports.’ Gone” (2000) 19C.J.Q. 19–38; N. Andrews, English Civil Procedure (Oxford University Press, 2003), 13.12 to 13.41; 14.04 to 14.45; 15.65 to 15.72. 19 Lord Woolf’s two reports are: Access to Justice: Interim Report (1995), and Access to Justice: Final Report (1996): for comment, A Zuckerman and R Cranston, The Reform of Civil Procedure: Essays on ‘Access to Justice’ (Oxford University Press, 1995); R. Cranston, How Law Works (Oxford University Press, 2006), ch. 5. 20 Generally, K. Mackie, D. Miles, W. Marsh, A. Allen, The ADR Practice Guide (2007), esp. ch.’s 5, 6, 7. 21 http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lj-jackson-speech -achieving-culture-change-case-management.pdf. 22 Ibid., at 4.1. 23 http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lj-jackson-speech -achieving-culture-change-case-management.pdf. 24 Ibid., at 1.8, noting M. Legg, Case Management and Complex Civil Litigation (Federation Press, Sydney, 2011).

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Docketing: Seamless Judicial Assistance, from Commencement to Conclusion

Lord Neuberger, in his 2012 lecture on this topic,25 proposed intensification of case management in complex multi-track cases. ‘Docketing’ would involve individual judges taking charge of the case, from inception to trial, including the conduct of the trial process. He said:26 ‘as a revolution in our approach to the conduct of civil litigation, introduction of case management is one which is unfinished. It is the introduction of a form of docketing or, in the terms of the Jackson Report, of ‘measures…taken to promote the assignment of cases to designated judges with relevant expertise’, which will help to complete that revolution’. Lord Neuberger also referred to the encouraging results achieved in a Leeds pilot scheme,27 experiences within the Technology and Con­ struction Court,28 and to rule changes in the Commercial Court,29 as well as experience in the USA.30 Lord Neuberger MR (as he then was) identified four main benefits of docketing: (1) lawyers’ determination to adhere to deadlines will be reinforced by the fact that judges are known to be ‘on top’ of the case at all stages;31 (2) less judicial time will be spent ‘getting up to speed’ because the same judge will have acquired familiarity with the minutiae of the case;32 (3) case management decisions will be better informed; and ‘formulaic’ managerial decisions will decline;33 this is connected to the observation that complex cases require better tailored case management;34 25

‘Docketing: Completing Case management’s Unfinished Revolution’ (2012): http://www .judiciary.gov.uk/Resources/JCO/Documents/Speeches/mor-speech-solicitors-cost -conference-lecture-feb2012.pdf. 26 Ibid., at [15] (referring to Sir Rupert Jackson, Review of Civil Litigation Costs: Final Report (December 2009), vol. II, at 469). 27 Ibid., at [26], citing a 2012 study. 28 Ibid., at [27], noting Sir Rupert Jackson’s experience in that court between 2004 and 2007. 29 Admiralty and Commercial Courts Guide (London, 2011), section D4, at 25–26. 30 Ibid., at [17], but especially at [20], citing U.S. materials. 31 Ibid., at [15]. 32 Ibid., at [22]. 33 Ibid. 34 Ibid.

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(4) the case will be more likely to be handled in a consistent way, rather than being subject to different judicial interventions, in a spasmodic and haphazard manner.35 VIII

Surviving Factes of Party Autonomy Under the English System of Judicial Management

The cpr (1998) case management revolution has not abrogated fundamental aspects of party-autonomy. English judges must respect various procedural rights concerning the definition and substantiation of the case, including enforcement of judgments or appeals against decisions. First, the scope of the litigation is determined by the parties pleadings rather than dictated by the court. Secondly, the parties formulate legal submissions concerning the claim or defence, and to present statutory or case law authority to support those submissions (this contrasts with the more active involvement of some civil law courts). Thirdly, the parties select relevant witness and documentary evidence; under the English system, witness statements and expert reports are prepared in consultation with the parties’ lawyers but without judicial supervision; if the court gives permission for expert evidence to be used in the case, the parties are free to select the relevant partyappointed expert whose opinion will be used at trial;36 and at trial, factual witnesses and experts are examined and cross-examined by the parties (normally by their advocates) in the presence of a judge whose task is to listen. Indeed the trial judge must only ask occasional questions, for the purpose of clarification. Thus the Court of Appeal in the Southwark London Borough Council case (2006) affirmed that if the judge were to intervene excessively during presentation of oral evidence, he would ‘arrogate to himself a quasiinquisitorial role’, something which is ‘entirely at odds with the adversarial system’.37 Fourthly, the decision concerning how a favourable judgment will be enforced is left to the successful claimant. The court does not enforce its own judgments.38 Fifthly, the court does not take the initiative in taking judgments on appeal. However, in England a dissatisfied first instance party must obtain 35 Ibid., at [24]. 36 Under the C.P.R. system the main rule is that no expert evidence can be presented in a case unless the court has granted permission: C.P.R. 35.4(1) to (3). 37 Southwark London Borough Council v. Kofi-Adu [2006] EWCA Civ 281, [2006] HLR 33, at [148]. 38 Andrews on Civil Processes (Intersentia, Cambridge, 2013), 17.01.

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permission from that court or from the appellate court to take the case on appeal.39 IX

Procedural Discipline and Sanctions

Adrian Zuckerman has contended that the courts have not been consistent and tough enough in exercising their powers of case management.40 Similarly, in his 22 November 2011 lecture, ‘Achieving a Culture Change in Case Management’,41 Sir Rupert Jackson conceded that there had been some undue clemency and that the provision concerning ‘relief from sanctions’ (cpr 3.9) needed to be simplified and to place more emphasis upon the need for procedural compliance.42 He also attractively suggested that courts should become more active in ‘following up’ their directions and orders by seeking confirmation from parties that these measures are being respected and that everything remains ‘on track’.43 However, in Summers v. Fairclough Homes Ltd. (2012),44 Lord Clarke (in a passage which hardly endorses a Stalinist procedural approach of zerotolerance) observed:45 ‘the court has a wide discretion as to how to exercise its case management powers. These include the power to strike out the whole or any part 39

C.P.R. 52.3(1): except decisions affecting a person’s liberty; Andrews on Civil Processes (Intersentia, Cambridge, 2013), 15.31 et seq. 40 A. Zuckerman, ‘Litigation Management under the C.P.R.: a Poorly-used Management Infrastructure…’, in D. Dwyer (ed.), The Civil Procedure Rules: Ten Years On (Oxford University Press, 2010), 89–108; A. Zuckerman, in M. Andenas, N. Andrews, R. Nazzini (eds.), The Future of Transnational Commercial Litigation: English Responses to the American Law Institute/Unidroit Draft Principles and Rules of Transnational Civil Procedure (British Institute of Comparative and International Law, London; re-printed 2006), ch. 12; and in N. Trocker and V. Varano (eds.), The Reforms of Civil Procedure in Comparative Perspective (Torino, 2005), 143 et seq., and Zuckerman on Civil Procedure (2nd edn., 2006), ch. 10, especially at 10.139 and 10.164 et seq.; D. Piggott, ‘Relief from Sanctions…’ (2005) C.J.Q. 103–129. 41 http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lj-jackson-speech -achieving-culture-change-case-management.pdf. 42 Ibid., at 3.1 et seq. 43 Ibid., at 3.3. 44 [2012] UKSC 26, [2012] 1 W.L.R. 2004. 45 Ibid., at [49].

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of a statement of case at whatever stage it is made… However, the cases stress the flexibility of the CPR…[for example] Aktas v. Adepta [2011] QB 894, at [92], where Rix LJ said: “…one of the great virtues of the CPR is that, by providing more flexible remedies for breaches of rules as well as a stricter regulatory environment, the courts are given the powers and the opportunities to make the sanction fit the breach…..”’ This view also chimes with the (non-binding) American Law Institute/ UNIDROIT’s ‘Principles of Transnational Civil Procedure’, which recommend that:46 ‘Sanctions should be reasonable and proportionate to the seriousness of the matter involved and the harm caused and reflect the extent of participation and the degree to which the conduct was deliberate’. X

Decline of the Trial System

English civil judges have traditionally devoted time to hearing trials or appeals. But both forms of activity are now endangered. Instead the great bulk of court litigation involves avoidance of trial and appeal. The judges have become drawn into facilitating and managing trial avoidance. Most English civil litigation occurs without the parties enjoying their ‘day in court’, the ‘plenary session’ known within the Common Law tradition as ‘trial’ (and the vanishing trial has been noted in the USA).47 46

47

Principle 17.2; accessible at: http://www.unidroit.org/english/principles/civilprocedure/ main.htm. Also published as American Law Institute/Unidroit’S Principles of Transnational Civil Procedure (Cambridge University Press, 2006), 38. S. Burbank, ‘Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Towards Bethlehem or Gomorrah?’ (2004) 1 Jo. of Emprirical Legal Studies 591; M. Galanter, ‘The Vanishing Trial…in Federal and State Courts’ (2004) 1 J. Empirical Legal Studies 451; J. Langbein, ‘The Disappearance of Civil Trial in the United States’ (2012) Yale LJ 524; A. Miller, ‘The Pre-trial Rush to Judgment: Are the “Litigation Explosion”, “Liability Crisis”, and Efficiency Cliches Eroding our Day in Court and Jury Commitments?’ (2003) 78 N.Y.U.L.Rev. 982; J. Resnik, ‘For Owen M. Fiss: Some Reflections on the Triumph and Death of Adjudication’ (2003) 58 Miami U.L.Rev. 173; J. Resnik, ‘Whither and Whether Adjudication’ (2006) 86 Boston U.L.Rev. 1101, 1123 et seq.; J. Resnik, ‘Uncovering, Discovering and Disclosing How the Public Dimensions of Court-Based Processes are at Risk’ (2006) 81 Chicago-Kent L.R. 521 and J. Resnik and D.E. Curtis, ‘From “Rites” to “Rights” of Audience: The Utilities and Contingencies of the Public’s Role in Court Business’ in A. Masson and K. O’Connor (eds.), Representation of Justice (Brussels, 2007).

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In fact not only do many actions end without trial, but most disputants do not bring or become embroiled in formal civil proceedings. Of those who do become parties to court proceedings, in most the case is either settled, or a form of summary judgment or dismissal terminates the case before a final hearing. When these vast numbers of non-litigated disputes and litigated but untried cases are subtracted from the pile, all that remains is a tiny trickle of cases which reach trial. Only in this small percentage of cases will a trial judge have the opportunity to pronounce final judgment on the merits, after hearing witness testimony. Some might find this surprising. Has not the central character of common law civil procedure, the trial, disappeared? After all, would it not be a theatrical  non-event to attend a performance of Shakespeare’s ‘Hamlet’, in which the troubled Prince had been excised from the entire script (unless the play were Tom Stoppard’s ‘Rosencrantz and Guildenstern Are Dead’,48 a satellite play). Nevertheless, the bed-rock assumptions of the modern civil system of justice are: avoidance of litigation; encouragement of pre-trial settlement; trial has become an endangered species. XI

Expansion of Arbitration and Mediation

Before the 1990s, mediation was regarded in England in ordinary civil disputes as an exotic and even an eccentric practice. It was promoted by London judges in the late 1990s, following a visit from an American mediator. Influenced by this, Senior Master Turner went on a mediation course in London. He then exhorted his Masters to do the same. Now it is necessary, where appropriate, for judges to remind litigants that they should consider mediation. The rise of mediation and consolidation of commercial arbitration have occurred despite a sustained determination to control court proceedings and to render them more efficient. In England the four main manifestations of the struggle to control court litigation and render it more efficient are: (i) an institutional bias against trial (avoidance of trial and promotion of settlement and mediation); (ii) greater use of pre-trial case management by judges; (iii) expanding the ‘no-win-no-fee’ system of remunerating litigation lawyers, and curbing public civil legal aid

48 ‘Rosencrantz and Guildenstern Are Dead’, ‘an absurdist, existentialist tragicomedy’, by Tom Stoppard, was first staged in 1966, at the Edinburgh Festival.

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(although critics might say that the no-win-no-fee system has excited more bad claims than the legal aid system and that the new filter has been less effective); and (iv) restrictions on appeals. It is perhaps ironic that despite intense activity aimed at reforming, improving and refining civil proceedings, demand for alternative sources of civil justice has not abated but in fact grown. Modern court systems (sources of ‘public justice’) are unlikely to improve to the point that mediation and arbitration (sources of ‘private justice’) cease to be attractive alternative forms of justice. Expansion of mediation is not confined to England. The European Directive on Mediation (2008),49 implemented in England,50 reflects the pan-European and indeed global rise of this technique. Furthermore, there is an official bias against court proceedings. The preaction protocols state:51 ‘Starting proceedings should usually be a step of last resort, and proceedings should not normally be started when a settlement is still actively being explored. Although ADR is not compulsory, the parties should consider whether some form of ADR procedure might enable them to settle the matter without starting proceedings. The court may require evidence that the parties considered some form of ADR’.52 A leading reason for the rise of commercial mediation is the wish to escape the crippling expense of formal court litigation, or of complex arbitration. Both forms of dispute-resolution, court litigation and arbitration, remain expensive and problematic means of resolving many types of civil dispute. Costs and expense are in the forefront of most people’s minds whenever litigation becomes even a remote prospect. Certainly in England, the rise of mediation, notably in high value disputes, is largely attributable to the sheer expense of traditional court litigation. In a lecture (2012) Lord Neuberger concluded:53 ‘Over the last ten years, civil litigation costs have continued to increase. In that respect the Woolf reforms, one 49

50 51

52 53

‘Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters’: Official Journal L 136, 24/05/2008 P 0003 – 0008. N. Trocker and A. De Luca (eds.), La Mediazione Civile alla Luce della Direttiva 2008/52/CE (Firenze University Press, 2011). Cross-Border Mediation (E.U. Directive) Regulations 2011/1133. For an empirical study, T. Goriely, R. Moorhead and P. Abrams, More Civil Justice? The Impact of the Woolf Reforms on Pre-Action Behaviour (Law Society and Civil Justice Council, London, 2001). Practice Direction-Pre-action Conduct, para. 8.1. Lecture entitled ‘Docketing: Completing Case management’s Unfinished Revolution’ (2012), at [3]: http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mor -speech-solicitors-cost-conference-lecture-feb2012.pdf.

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of the main aims of which was to provide a cure for excessive litigation cost, failed. Indeed, I regret to say that the Woolf reforms are generally thought to have increased litigation costs’. Costs have been placed under the microscope in Sir Rupert Jackson’s 2009–10 Review of Civil Litigation Costs: Final Report.54 His two main recommendations are: (1) the success fee and the ATE premium (after-the-event legal expenses insurance) would cease to be recoverable by the victorious party from the defeated party in cfa-funded (conditional fee agreement) litigation;  but the successful client will need to pay his lawyer that success fee; (2) US-style contingency fee agreements would be lawful, that is, victorious  lawyers receiving a percentage slice of the victory cake (limited to a maximum of 25 per cent of damages); but the level of the fee would be regulated; a defeated defendant would be liable to pay the victorious party’s ordinary costs (rather than the percentage success fee). The Jackson report’s recommendations were severely criticised by Zuckerman in the Civil Justice Quarterly.55 However, despite these criticisms, and following a general consultation,56 the Government announced in 2011 (press release of 29 March 2011 by the Ministry of Justice, London) that it would implement the Jackson Report’s main proposals.57 These changes are contained in Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. In a lecture (2012) Lord Neuberger MR (as he then was) suggested that ‘the vast majority of the reforms will, assuming Parliamentary approval is forthcoming, now come into force in April 2013’.58 54 55

Sir Rupert Jackson’s Review of Civil Litigation Costs: Final Report (London, 2010). A. Zuckerman, ‘The Jackson Final Report on Costs—Plastering the Cracks to Shore up a Dysfunctional System’ (2010) 29C.J.Q. 263. 56 Proposals for reform of civil litigation funding and costs in England and Wales (Consultation Paper 13/10: November 2010: Cm 7947). http://www.justice.gov.uk/docs/ jackson-consultation-paper.pdf. 57 http://www.justice.gov.uk/news/press-release-290311a.htm. 58 Lecture entitled ‘Docketing: Completing Case Management’s Unfinished Revolution’ (2012), at [3]: http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mor -speech-solicitors-cost-conference-lecture-feb2012.pdf.

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Civil Justice beyond Public Scrutiny

The process of settlement, including mediated settlements, is not perfect. Possible objections to settlement (including mediated settlements) are:59 (1) parties to settlement might not fully understand their respective positions; (2) the parties might be significantly unequal in various ways;60 (3) a party might have procured the settlement by underhand dealing;61 (4) a party’s full civil entitlement should not be reduced by compromise;62 (5) assessment of the ‘merits’ must be measured, precise, and exacting;63 (6) the public searchlight at trial should be shone upon serious wrongdoing. It would be unfortunate if the system of private justice were invariably to shield from public view last-minute settlements designed to avoid scandal or 59 60

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For a convenient collection of literature addressing these points, H. Genn, ‘Understanding Civil Justice’ (1997) 50C.L.P. 155, 186–187. Genn has said: ‘…studies highlight…the ways in which power influences the outcome of settlement negotiations… Factors which are important are: legal intelligence—getting the right lawyers and experts; financial resources-paying for the [same]; and having the psychological, social, and economic ability to endure litigation’: H. Genn, ‘Understanding Civil Justice’ (1997) 50C.L.P. 155, 179; see also H. Genn, Hard Bargaining: Out of Court Settlement in Personal Injury Actions (Oxford University Press, 1987) (reviewed N. Andrews [1989] C.L.J. 506) and other studies cited by Genn (1997) ibid.; see also H. Genn, The Paths to Justice: What People Do and Think About Going to Law (Hart, Oxford, 1999); H. Genn, ‘Court-Based ADR Initiatives for Non-Family Civil Disputes: The Commercial Court and the Court of Appeal’ (Department for Constitutional Affairs Research Reports 1/2002, 2002): www.hmcourts-service.gov.uk/docs/adr_initiatives.pdf (this last piece in examined briefly in Section  5 of the author’s paper on the Commercial Court and case management). For example, an aggrieved party to a compromise ‘threw the contractual book’ at the opponent, in an attempt to overturn the compromise, Halpern v. Halpern (No. 2) [2007] EWCA Civ 291 (distribution of estate among family members; allegation that not all relevant assets were revealed and that the compromise should be regarded as vitiated on numerous suggested grounds; the report at [2007] 3 All E.R. 478 concerns a specific aspect of the case; consult the online version at [1] et seq. for the numerous contractual challenges); cf also for an allegation that a mediated settlement had been procured by duress, Farm Assist Limited (in liquidation) v. The Secretary of State for the Environment, Food and Rural Affairs (No. 2) (2009) [2009] EWHC 1102 (TCC), [2009] B.L.R. 399; 125 Con. L.R. 154. One of Jeremy Bentham’s anxieties: S. Roberts, ‘Settlement as Civil Justice’ (2000) 63 M.L.R. 739, 743 n. 11, W. Twining, ‘Alternatives to What?…’ (1993) 56 M.L.R. 380, 384 (examining various theorists’ accounts of the civil process, notably, Bentham, Llewellyn, Fuller, and Damaska). For a stimulating account of accuracy and legality, J.A. Jolowicz, ‘The dilemmas of civil litigation’ in On Civil Procedure (Cambridge University Press, 2000), ch. 4.

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embarrassment concerning matters which are in fact matters of public interest. Here are some examples taken from modern Britain: a senior female policewoman complains that her rise within the hierarchy has been obstructed by sexual discrimination;64 a family wishes to complain that their son’s suicide within the British armed forces was the result of bullying by fellow soldiers;65 a car-dealer’s standard-term warranty for repair of new vehicles is mischievously declared to have been ‘forfeited’ for a reason which is no longer tenable under competition law;66 a landlord, a large charity, has failed to keep its property in proper repair, despite similar complaints by a host of domestic tenants;67 matters affecting a large group of litigants, or a class action, are referred to mediation. In these various contexts, the policy choices are: (i) to accept that confidential mediation carries this risk; (ii) to exhort mediators to decline to deal with such cases, if they involve extreme instances of turpitude (or at least that mandatory law protecting an important legal value has been infringed); (iii) to allow confidentiality to be lifted in such cases, on the ground of extreme turpitude. Sometimes statute invalidates clauses which purport to exclude formal recourse to state-administered courts or tribunals. Thus in Clyde & Co v. Bates van Winkelhof (2011)68 the (English) High Court refused to uphold a clause requiring a solicitor in a law firm to refer employment disputes to mediation and then to arbitration rather than to the public system of Employment Tribunals. Despite this clause, the relevant lawyer had brought a legal complaint to an Employment Tribunal. She alleged various statutory breaches by her law firm of equality law. The High Court held that her Employment Tribunal complaint was properly lodged; in this context, statute69 precludes an 64 65

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67 68 69

See the ‘Halford’ affair, July 1992, discussed N. Andrews, Principles of Civil Procedure (London, 1994), 26. Such complaints have received publicity: for Parliamentary comment in 2006 on a Q.C.’s report into one set of incidents, http://www.publications.parliament.uk/pa/ld199900/ ldhansrd/pdvn/lds06/text/60329-05.htm. Typically, customer’s garage failing to fit replacement mechanical part bearing manufacturer’s ‘logo’, even though part in fact fitted has same objective specification as the manufacturer’s named part; facts told to the author: for the legal background to this, see the Office of Fair Trading’s comments at http://www.oft.gov.uk/News/Press+releases/2003/ PN+170-03.htm. Examples must be legion; for example, English Churches Housing Group v. Shine [2004] EWCA Civ 434. [2011] EWHC 668 (QB), Slade J. s. 120, Equality Act 2010, and s. 203, Equality Rights Act 1996.

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employee from ‘contracting out’ from this open and public system of adjudication. XIII

Concluding Remarks

I.

Parties and their lawyers are required to be—cynics might say ‘appear to be’—co-operative. The higher vocation of litigation lawyers places them in a special category of professional. Although paid by clients, or vanquished opponents (under the loser-must pay or costs-shifting rule), lawyers owe their overriding duty to the interests of justice. Court proceedings are now conducted under the watchful eye of judicial case managers. Civil judges have been required to multi-task. They are no longer merely adjudicators at trial. A rich and impressive canon of procedural principles has emerged. There is international agreement on most of this canon. Judges have greater responsibility heaped upon them. They enter a bureaucracy, a system of intense public regulation. It has become more difficult to attract the best to become leading judges. The procedural code, the vast apparatus of the cpr (1998), has become heavy and convoluted. The expense of going to law has not diminished. If they have a choice, people shop around. Privatised justice has flourished. Demand for confidential and more flexible forms of dispute resolution is unlikely to diminish. But private results—whether settlements, mediated settlements, or arbitral awards—are shielded from public scrutiny. Neither the private system nor the public system of civil justice is in perfect shape. There is a manifest need for radical improvement of each system, and the connections between them.

II.

III. IV. V. VI. VII. VIII.

IX.

Chapter EIGHTEEN

Independence of Court Proceedings Impartiality and Fairness* Dmitry Magonya** I Introduction The matter concerning goals and objectives of the civil procedure that may include ensuring of justified public court proceedings conducted by an independent and unbiased court may seem old and trite. However, Professor A. Uzelac believes that the interest to the matter has recently grown and there is an obvious connection between a detailed discussion or even full reconsideration of goals and objectives of the civil procedure, on one hand, and success of procedural reforms undertaken in many countries, on the other hand.1 As Professor M. Treushnikov noted at the recent Moscow conference, the comparative law method under contemporary conditions and globalization first requires the learning of procedural values of procedural systems common for all nations.2 Such values include the fundamental norms (principles) recognized and recorded in international documents; such as the principle of * This report is a result of professional discussions with colleagues from various countries taken during the Moscow Conference of the International Association of Procedural Law that took place on 18–21 September. As it was determined that foreign colleagues somehow misunderstood the civil procedure development trends in Russia which is caused by insignificant number of Russian scientists’ works translated to working languages and not very active participation of Russian colleagues in international professional discussions. As stated Marcel Storme in his introductory report in Moscow, the situation has been recently changed, and I am very thankful to Professor Storme for his positive assessment and invitation to participate in this conference. M. Storme, “Best Science, Worst Practice?,” Civil Procedure in Cross-cultural Dialogue: Eurasia Context: IAPL World Conference on Civil Procedure, Russia: Conference book (Moscow, 2012), p. 17. ** Dmitry Magonya is the Managing Partner of ART DE LEX Law Firm (Russia), concentrating on civil (arbitration) procedural law and corporate and competition law. Mr Magonya also oversees Social Responsibility and Pro Bono, including professional higher education projects. 1 A. Uzelac, “Goals of Civil Justice. General Report,” Civil Procedure in Cross-cultural Dialogue: Eurasia Context: IAPL World Conference on Civil Procedure Russia: Conference book (Moscow, 2012), p. 113. 2 Michael Treushnikov, “Evolution of the Russian Civil Procedure at the Beginning of the XXI Century,” Civil Procedure in Cross-cultural Dialogue: Eurasia Context: IAPL World Conference on Civil Procedure Russia: Conference book (Moscow, 2012), p. 28. © koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_019

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court independence, the right of justified court proceedings and reasonable timeframe for consideration and resolution of cases.3 The importance of the comparative legal analysis also resides in discovery of particularities of procedural systems. The socio-cultural type of the society and its legal culture mainly determine the goals and objectives of the civil procedure. As noted by D. Maleshin, for the typological purposes of civil legal systems, they may be differentiated into collective and individual sociocultural types.4 The adherence of a civil procedural system to the first or second type determines the structure of the civil procedure, the degree of the court effectiveness in evidence gathering, requirement to achieve the objective or formal truth, place of execution of court resolutions and decisions in the civil procedural system, the court enforcement type and many other aspects. The Russian civil procedural system is characterized by the fact that it contains both, collective and individual elements. Collective elements include many common principles, in particular, the permissive rule and adversarial principle; individual elements include court effectiveness in evidence gathering, expanded prosecutor’s powers, revision of cases in exercise of supervisory powers and the doctrinal principle of objective truth. Unique Russian experience includes adoption and development of institutes of the continental system. Regardless of the dominating Romano-German element, we can talk about the originality of the Russian legal system, including its civil procedure. Let’s observe it on the example of the system of titles.5 II

Goals and Objectives of the Civil Procedure

As S. Nikitin stated in his report, civil proceedings are carried out in the Russian Federation by courts of general jurisdiction and arbitration courts. Courts of general jurisdiction consider civil cases with public involvement.6 In contrast to foreign arbitration courts, arbitration courts of the Russian Federation are state-owned courts, not tribunals, and consider economic disputes involving 3 Universal Declaration of Human Rights [1948] unga, at. [10]//www.un.org/en/documents/ udhr/; European Convention on Human Rights [2002] Council of Europe, at. [6]//www.echr .coe.int/Documents/Convention_Eng.pdf; International Covenant on Civil and Political Rights [1966] unga, at. 14//http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg _no=IV-4&chapter=4&lang=en. 4 D. Maleshin, “Civil Procedural System of the Russian Federation” (2011). 5 See note 5 above. 6 S. Nikitin, “Appointment of Judges and Juridical Responsibility of Judges in the Russian Federation” (2012), International Conference on Judicial Independence: Impartiality and Fairness of the Judicial Process Ghent (2012), Conference Materials.

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companies and sole proprietors. The activity of such courts is regulated by the Code of Civil Procedure and the Arbitration Procedure Code. The procedural codes formulate goals allowing for the determination that the main goal of civil proceedings is to defend violated rights, freedoms and legal interests of persons whose dispute is to be resolved by a court. This goal is achieved by resolution of the key task, namely correct and timely resolution of cases. Several objectives complying with the civil procedure stages can be distinguished within the above task. For instance, access to justice that is ensured at the stage of commencement of proceedings or justified court proceedings that are ensured at the stage of a case consideration in merits. It is known that in accordance with the Constitution of the Russian Federation, commonly accepted principles and norms of the international law and international treaties are an integral part of its legal system.7 At the international legal level, the provision about independent and unbiased court is included in The Universal Declaration of Human Rights8 and Convention for Protection of Human Rights and Fundamental Freedoms.9 According to those documents, a court means an authority legally established for independent and unbiased justice, while resolving cases under legal norms and during fair resolution of any matter assigned to court jurisdiction. We can find similar wordings in the International Covenant on Civil and Political Rights.10 Thus, ensuring of correct and timely resolution of a case is directly connected with such categories, as independence, impartiality and justice. They are also included in the topic of this conference. How are they defined in Russian legal practice? III Independence The principle of independence of judges is announced in Article 120 of the Constitution of the Russian Federation that states the following: “Judges are independent and shall only obey the Constitution and federal laws.”11 7 8 9 10 11

Constitution of the Russian Federation 1993, s. 15 (4) amended by the laws No. 6-FKZ 2008 and No. 7-FKZ 2008, No. 7 Russian newspaper (2009). Universal Declaration of Human Rights 1948, s. 10//www.un.org/en/documents/udhr/. European Convention on Human Rights 2002, s. 6//www.echr.coe.int/Documents/ Convention_Eng.pdf. International Covenant on Civil and Political Rights 1966, s. 14//http://treaties.un.org/ Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en. Constitution of the Russian Federation 1993 amended by the laws No.6-FKZ 2008 and No. 7-FKZ 2008, No. 7 Russian newspaper (2009).

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The independence of judges is guaranteed by the Law of the Russian Federation on the Status of Judges of the Russian Federation. Independence consists of two components: external independence (from an outside pressure) and internal independence (from an inside pressure). Nowadays, international standards determine that state and other institutions should respect and keep the judiciary independent.12 На европейском уровне international standards provide for six elements guaranteeing independence of judges: procedure for appointment of judges; non-removability of judges; binding nature of court resolutions; equality within the judicial power; freedom from improper external influence; and correct arrangement of financing of the judicial system.13 There are also remarkable international standards developed by nongovernment organizations. One of the interesting samples that the Russian legislative and judiciary community should pay attention to is Mt. Scopus International Standards of Judicial Independence.14 For the last twenty years, Russia has undertaken significant efforts to ensure court independence.15 Meanwhile, there are known cases when foreign courts and arbitration courts were chosen for resolution of cases of clearly Russian 12

Basic Principles on the Independence of the Judiciary [1985] United Nations//http://www .ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx. 13 Recommendation N (94)12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges [1994], Council of Europe, Committee of Ministers//https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet .CmdBlobGet&InstranetImage=534553&SecMode=1&DocId=514386&Usage=2. 14 Mt. Scopus International Standards of Judicial Independence (2008)//www.jiwp .org/#!mt-scopus-standards/c14de. 15 The beginning was set when the Supreme Soviet of the rsfsr approved the resolution No. 1801–1 dated October 24, 1991 that endorsed the concept of judicial reform in the rsfsr. In 1993 in principle the new Constitution of the Russian Federation was accepted, and it secured the transmission of Russia to the new economic and political system different than the previous soviet system. After 10 years since adoption of the concept of judicial reform in Russia, a number of documents on the further development of current judicial system was accepted according to accumulated experience of court activity. Federal target programs on development of judicial system in Russia 2002–2006 and 2007–2011 are among them. The most important areas of judicial reform in particular include: creation of the federal judicial system; recognition of the right of every person to take proceedings before a jury trail in cases established by law; expanding the possibilities to appeal in the court on misconduct by officials; organization of the legal proceedings on the principles of competitiveness and equality of parties; differentiation of forms of legal proceedings; improving the system of judges independence guarantees and their subordination only to the law, assignment the principle of irremovability.

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origin that demonstrate that Russian lawyers shall complete significant work to ensure implementation of court independence standards.16 Here I remember the words of Professor M. Storme who, as wise as he is, in one of his reports paid attention to the requirement of interaction between courts and lawyers in the same project, namely for the resolution of disputes between people. One of the signs of actual cooperation may be considered a conversion of these two systems, as a rule, by creation of judicial manpower out of former lawyers. Unfortunately, the statistics on judicial replacement show that lawyers hardly become judges: in one third of cases judges are former court administration workers; in one third of cases judges are former workers of investigating authorities and prosecutor’s offices; in 10% of cases judges are former employees of other state authorities; in 10% of case judges are former employees of legal departments in enterprises; and in less than 10% of cases, judges come from lawyers.17 In the same time, it shall be noted that applications of lawyers seeking to obtain a judicial status are frequently satisfied and constitute about 40 per cent. Therefore, it may be concluded that the community of judges is not mainly created out of lawyers; meanwhile, lawyers do not aim for the judicature. Analysis of practice of the European Human Rights Court allows generalizing conditions under which the appearance of an independent court is created while the actual principle is not practically implemented. Such cases also include cloning of skills taken from a previous profession while delivering justice. Such defacement of independence was first discovered in the case of Piersak v. Belgium.18 The repetition of previous professional skills (of a lawyer, military man, state employee) was considered defacement of the court independence. It is clear that the above imbalance in judiciary replacement in the Russian Federation by representatives of various legal professions that leans toward representatives of investigating and supervisory authorities requires special approaches to training and adaptation of future judges in order to create independent behavioral skills. Attention shall be paid to research conducted by our Israeli colleague and Professor Shimon Shetreet regarding 16

17

18

Cherney v. Deripaska [2008] EWHC 1530 (Comm), [2009] EWCA Civ 849; Yukos Capital SARL v. OJSC Rosneft Oil Company [2011] EWHC 1461 (Comm); VTB Capital Plc v. Nutritek International Corp & Ors [2011] EWHC 1887 (Comm); Slutsker v. Haron Investments Ltd & Anor [2012] EWHC 2539 (Ch). Information was received by author as a result of his own research and communications with the judicial bodies of the Russian Federation, Judicial Department of the Supreme Court of the Russian Federation; it has never been published. Piersack v. Belgium (Application No. 8692/79) [1982] echr http://hudoc.echr.coe.int/ sites/eng/pages/search.aspx?i=001-57557#{“itemid”:[“001-57557”]}.

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ensuring of actual independence of judges and well-known scientist and Judge Aaron Barak on judiciary philosophy.19 IV Fairness In the formation of the concept of a fair trial, the Universal Declaration of Human Rights (1948) played a decisive role recognizing the human right that everyone is entitled: to full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations. The principle of judiciary independence, subject to its effective implementation, is fundamental for fair court proceedings. However, justice sounds differently in Russia. The Russian words truth (правда [pravda]) and fairness (справедливость [spravedlivost]) contain the same root. G. Vernadskiy, an outstanding Russian historian, wrote that both terms were originally used in Ancient Russia as synonyms, which provides specific perception of the judicial power since ancient times up to date. It is connected not only with quality of fairness, but also with the role of courts in the society and their powers. As the socio-cultural aspects of Russian society determine, as we noted above, significant collective elements in the society, the mentality of litigants does not provide for the parties’ activity in the process. They associate protection of rights with a court that has to resolve a case on a fair basis. In the legal theory,20 the above provision was understood as the requirement for judges to ensure that their decisions strictly and fully comply with the objective truth. Such approach has been included in the soviet civil procedural laws when the principle of material (objective) truth was considered an important part of the legality principle which was shown on practice in effective role of courts in evidence gathering to find the material truth as the key task of the court.21 As a result of procedural reforms of the last twenty years, the approach has significantly changed as the definition of the material (objective) truth clearly contradicts the permissive rule and adversarial principle of the modern civil procedure. Meanwhile, the role of courts continues to be moderately active which is expressed in their effectiveness in evidence gathering and revision of cases in exercise of supervisory powers.22 19 20

21 22

A. Barak, Judicial Discretion (Moscow, 1999), p. 163. S. Shetreet, “Creating a Culture of Judicial Independence,” The Culture of Judicial Independence (Leiden-Boston, 2012), p. 34. See, for instance, V. Ryazanovsky, Unity of the process (Moscow, 2005), p. 35; T. Yablochkov, Manual: Russian civil proceedings (Yaroslavl, 1910), p. 27; Manual: The Civil Procedure (ed.) by M. Treushnoikov (Moscow, 2010), p. 73. Civil Procedural Code of the rsfsr 1923, s. 5; Civil Procedural Code of the rsfsr 1964, s. 14. V. Yakovlev, Jural state: questions of foundation (Moscow, 2012), p. 226.

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Modern conditions underline the goal to reach efficient court proceedings, that is, to resolve as many cases as possible during a certain period of time. E. Silvestri states that the situation in Italy where any procedural goals are directed only at one thing, namely, fight with a flow of new cases and reduction of huge lists of unresolved cases, is the most dramatic.23 We can observe something similar today in Russia where judges themselves describe their scope of work as monstrous. Practical requirements absolutely displace the old doctrine of searching for objective (material) truth that is now replaced by, so called, formal truth and the principle of access to fairness and requirement of reasonable timeframe for consideration and resolution of cases.24 V Impartiality Impartiality is an evaluating category characterizing the decision-making process and attitude of a judge to parties arguments. Most lawyers agree that the more effective the guarantee of the independence of the judiciary, the more likely it is to be impartial. And further, the higher the level of the guarantee of fair hearing, the greater chance of a fair trial. According to the Russian codes of practice, the conditions ensuring the impartiality of the court are the rule of inadmissibility of trying a case by the judges, if there are reasonable doubts on the part of their impartiality,25 right of challenging,26 and the inadmissibility of a judge’s repeated participation in the consideration of the case.27 The principles of equality of the parties, contentiousness and discretionary norms of civil litigation serve the guarantee of the impartiality of the judiciary.28 23

24

25 26 27 28

E. Silvestr, “Goals of Civil Justice. Italian National Report,” Civil Procedure in Cross-cultural Dialogue: Eurasia Context: IAPL World Conference on Civil Procedure Russia: Conference book (Moscow, 2012), p. 189. “Superiors’ disputes. Chairmans of the Supreme and Supreme Commercial Courts Vyacheslav Lebedev and Anton Ivanov were divided in opinions on the way of improving judicial system”//http://www.arbitr.ru/press-centr/smi/36111.html. Arbitration Procedural Code of the Russian Federation, s. 21 (1); Civil Procedural Code of the Russian Federation, s. 16 (1). Arbitration Procedural Code of the Russian Federation, s. 24 (1); Civil Procedural Code of the Russian Federation, s. 19. Arbitration Procedural Code of the Russian Federation, s. 22; Civil Procedural Code of the Russian Federation, s. 17. Arbitration Procedural Code of the Russian Federation, s. 4, 8–9; Civil Procedural Code of the Russian Federation s. 3, 12.

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VI Conclusion With strengthening the court’s role in resolving social conflicts, the importance of legislative guarantees of judicial independence grows. According to Valery Zorkin, the Chairman of the Constitutional Court of the Russian Federation, independence of courts and judges is the most important guarantee of civil rights to judicial protection and to a fair trial as a prerequisite for making a fair decision. Of course, independence, impartiality and fairness, presume real protection of the court against any attempt to apply pressure from the outside. The effective solution to this problem requires the combination of knowledge and experience of experts in procedural law from different countries to understand and test all worthy ideas and approaches.

Chapter NINETEEN

Recusal of Judges

A Commonwealth Survey of the Applicable Tests Cyrus Das*

The English common law, in some form or other, is applied in about 55 countries around the world which house about one-third of the world’s population. The courts of these countries show a remarkable similarity in their approach towards judicial bias and the recusal of judges. The variance is in the difference, somewhat slight, in the tests formulated by their superior courts to determine bias or recusal. These tests may broadly be stated as the ‘real danger of bias’, ‘real possibility of bias’, ‘real likelihood of bias’, ‘real suspicion of bias’ or ‘reasonable apprehension of bias’ tests. Their application is, of course, entirely situational. Nevertheless there is near uniform acceptance that the tests are to be applied objectively from the standpoint of a reasonable and informed observer. It reduces the exercise to a matter of perception by the judges who are to put themselves in the shoes of the reasonable bystander. In the result, it often appears that the real test is the perception of the judges influenced by their own experiences and background rather than a clinical application of the legal tests. For example, the handing of a bouquet of flowers by a juror to the murder-victim’s mother saw a sharp division of opinion in the High Court of Australia on a 3:2 basis with the majority holding that it was an excusable albeit imprudent act of sympathy and the minority saying it was an act of solidarity that disqualified the juror.1 The only reality may well be the observation by the South African Constitutional Court that ‘absolute neutrality is a chimera’:2

* Cyrus Das LLB (Hons) Ph.D is a senior legal practitioner at the Malaysian Bar and an Adjunct Professor of Law. His specialties are administrative and constitutional law. He was a former President of the Malaysian Bar Council and presently Honorary Life President of the Commonwealth Lawyers Association. 1 Webb v. R[1994] 122 A.L.R. 41. 2 South African Commercial Catering Workers Union v. Irvin & Johnson Ltd. [2000] 3 S.A .705 (cc) at [13].

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_020

Recusal of judges

I

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The Usual Grounds of Recusal

A useful tabulation of the likely circumstances of disqualification was given by Deane J. in his dissent in the Webb case.3 He identified four usual areas of disqualification: i. ii. iii. iv.

disqualification by interest disqualification by conduct disqualification by association; and disqualification by extraneous information.

As Deane J. explained the characterisations above may overlap but they could also be recognised as distinct categories which occur in the following circumstances: i.

On disqualification by interest it is ‘where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment.’ ii. Disqualification by conduct, includes ‘published statements’ and ‘consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias’. iii. Disqualification by association ‘consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings’. iv. Disqualification by extraneous information overlaps with the third, but commonly ‘consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias’. A

The Tests for Recusal

As stated, the tests formulated for judicial bias or recusal in the Commonwealth courts show a remarkable unity or consistency and vary only in degree and emphasis. They relate of course to apparent bias as opposed to actual bias. If it is the latter, as Lord Goff said ‘it is the end of the case’.4 The tests are generally made applicable to all tribunals sitting in a judicial or quasi-judicial capacity without distinction between judges and jurors. 3 Webb v. R. [1994] 122 A.L.R. 41. 4 R. v. Gough (1993) 2 All E.R. 724 at p. 730.

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The leading case of R v. Gough,5 in the United Kingdom was a jury case and saw a definitive pronouncement by the House of Lords that the governing test is the ‘real danger of bias’ test. It sought to clarify the so-called ‘legacy of confusion’ left behind by Lord Denning’s judgment6 on whether that case did stipulate the ‘real likelihood’ test. For example, Lord Widgery CJ7 had declared that he was left uncertain after Lannon whether the prevailing test was the ‘real likelihood’ test or the ‘reasonable suspicion’ test. Lord Goff in Gough in opting for the ‘real danger’ test also repudiated the Denning approach that the court should look at the matter from the eyes of the reasonable man saying that ‘the court in such cases personifies the reasonable man’ (p. 737). Gough had sought to settle these matters with finality. However, a decade later Gough itself underwent a modification8 where the issue was whether the auditor’s certificate for a surcharge should be quashed for apparent bias. The House of Lords noted that Gough had ‘not commanded universal approval’ (p. 507) since its delivery and that although the opportunity arose,9 Lord Browne Wilkinson (p. 589) had not found it necessary on the facts of that case to deal with the subsequent decisions in Canada, New Zealand and Australia (p. 506) that had not followed Gough. The main objection from the other jurisdictions seems to have been that Gough emphasises ‘the courts view of the facts and places inadequate emphasis on the public perception of the irregular incident’.10 The ‘modest adjustment’ to Gough proposed in Magill was to make the test more objective and bring it in line with Strasbourg jurisprudence. The Gough test is to be replaced with the test of whether a fair minded and informed observer would conclude that there was ‘a real possibility’ that the tribunal was biased (p. 507). Lord Hope added the wish that the new test ‘removes any possible conflict with the test now applied in most Commonwealth countries and Scotland’ (p. 507). This aspiration may have been over-ambitious. A difference has arisen in many common law countries over Magill with some adopting the Magill change and others not. For example Malaysia has declined to follow the modification made by Magill on the basis of it being inspired by Strasbourg jurisprudence which is not applicable in Malaysia. The apex court in Malaysia opted to 5 6 7 8 9 10

supra note 4. Metropolitan Properties Ltd. v. Lannon [1968] 3 All E.R. 304. R v. Altrincham Justices exparte Pennington [1975] 2 All E.R. 78. Porter v. Magill [2002] 1 All E.R. 465 (Magill). Pinochet No. 2 [1999] 1 All E.R. 577. See criticism by High Court of Australia in Webb, supra.

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follow the Gough test of ‘real danger’ of bias11 since it was laid down at common law (which applies in Malaysia). But the Malaysian reservation has not been adopted in several other Commonwealth jurisdictions which likewise are not bound by Strasbourg jurisprudence. The Bahamas Court of Appeal12 applied Magill as the appropriate test for apparent bias in a case where recusal was sought on the basis that a retrial ordered by the appeal court was routed back before the same first instance judge. Likewise in a Cayman Islands appeal to the Privy Council,13 Lord Walker applied Porter v. Magill to determine if excessive intervention by the trial judge had created apparent bias. In an appeal from New Zealand,14 the Privy Council expressly declined an invitation to declare the Magill test as the governing test for apparent bias in New Zealand, holding that such a pronouncement should come from the courts of New Zealand themselves. Lord Steyn said (p. 583): “On appeal to the Privy Council the appellants invited the Board to adopt for New Zealand the adjustment of the test in Gough enunciated by Lord Hope of Craighead in Porter v Magill [2001] 2 WLR 37, namely that ‘The question if whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’ (para [103]). This adjustment is consistent with European and Scottish jurisprudence, and is broadly in line with Australian jurisprudence. Both tests proceed from the point of view of an informed view of the facts, and both concentrate on the possibility of bias. But the adjusted test emphasises the perspective of the fair-minded observer rather than the view of the Court. The Board does not have the benefit of the view of the Court of Appeal on the point whether the law in New Zealand should be so altered. In these circumstances, Their Lordships are not persuaded that it would be right to restate the law for New Zealand as requested.” In the result, the differing approaches continue. The Australasia region has developed its own approach holding itself not bound by Gough or Magill. In Webb, supra, the High Court of Australia laid down the ‘reasonable apprehension of bias’ test, which is now accepted as ‘settled authority’ in Australia.15 11 12 13 14 15

Dato’ Tan Heng Chiew v. Tan Kim Hor [2006] 1C.L.J. 577; Majlis Perbandaran Pulau Pinang v. Sykt. Sg. Glugor Cooperative [1999] 3C.L.J. 65. Stubbs v. AG [2010] 4 L.R.C. 103. Demorca v. Opportunity Equity Patners Ltd. [2007] 3 L.R.C. 1 P.C. Man O’War Station Ltd. v. Auckland City Council [2002] 3 N.Z.L.R. 577. Kirby J. in Ebner v. Official Trustee [2000] 176 A.L.R. 644 at [162].

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In the Pacific, the Court of Appeal in Fiji16 declined to choose between the Gough test and the Webb test saying there is little practical difference between the two. Marshall JA observed (p. 287): “The (Fiji) Supreme Court in Koya v State [1998] FJSC 2 (observed): ‘Subsequently, the New Zealand Court of Appeal, in Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142, held that it would apply the Gough test. In reaching that conclusion, the Court of Appeal considered that there was little if any practical difference between the two tests, a view with which we agree, at least in their application to the vast majority of cases of apparent bias. That is because there is little if any difference between asking whether a reasonable and informed person would consider there was a real danger of bias and asking whether a reasonable and informed observer would reasonably apprehend or suspect bias’. It is authoritative in Fiji because it is the Supreme Court and because the court consisted of the respected Sir Timoci Tuivaga and two distinguished jurists. I refer to Lord Cooke of Thorndon and Sir Anthony Mason. Authority is added by the fact that it was Sir Anthony Mason, as Chief Justice of Australia, who gave the leading judgment in Webb.” Australia has also departed from the United Kingdom on the automatic disqualification rule where a judge has a direct or indirect pecuniary interest in the outcome of the case based on the classic Dimes principle.17 Pinochet No. 2, supra, saw the extension of the principle to a non-pecuniary interest. In Ebner, supra, the High Court of Australia declared ‘there is no separate and free-standing rule of automatic disqualification which applies where a judge has a direct pecuniary interest, however small, in the outcome of the case over which the judge is presiding’ [54]. The Court nevertheless qualified itself by saying that ‘the circumstance that a judge has a not insubstantial, direct, pecuniary or proprietary interest in the outcome of litigation will ordinarily result in disqualification’ [58]. The Dimes principle was moderated by the Australian High Court as follows at [55]: “There is a difference between having an interest in the outcome of a case, and having an interest in a party to the case. Dimes and the cases which have followed it have all recognised application invariable of 16 17

Tikoniyaroi v. State [2012] 2 L.R.C. 280. Dimes v. Grand Junction Canal [1852] 10 E.R. 301.

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principle a to conclusion of statement that Elevating…difference that that interest the is What tested be never would makes it which assumption the that mean would the judge has in the cause? The apprehension of bias principle requires articulation of the connection between the asserted interest and the disposition of the cause which is alleged. If, on examination, the judge does have a financial interest in the outcome of the litigation, the application of the apprehension of bias principle will lead to the judge being disqualified. By contrast, where, as here, it is clear that the outcome of a case would have no bearing upon the value of the shares held by the judge in the listed public company, and there is no other suggested form of pecuniary interest involved, then the judge does not have a direct pecuniary interest in the outcome of the litigation.” Canada, like Australia, adopts the ‘reasonable apprehension of bias’ test.18 In South Africa, in adopting the same test, the South African Constitutional Court explained its preference for ‘apprehension of bias’ rather than ‘suspicion of bias’ in these terms:19 “Because of the inappropriate connotations which might flow from the use of the word ‘suspicion’ in this context, we agree and share this preference for ‘apprehension of bias’ rather than ‘suspicion of bias’. This is also the manner in which the Supreme Court of Canada formulates the test….” It is seen from the brief survey above that the ‘reasonable apprehension of bias’ test and ‘the real danger/possibility of bias’ test rule the field in most common law countries. In addition to the formulated tests, we may now look at the Locabail guidelines on judges’ response to circumstances that may cause judicial impairment. II

The Locabail Guidelines on Judicial Impartiality

Judges come with past associations and experiences to the bench and it is generally believed that a varied background would enrich their understanding and 18 19

R v. S (RD) [1997] 118C.C.C.(3d) 353; Canadian Pacific Ltd. v. Matsqui Indian Band [1995] 122 D.L.R. (4th) 129. see Chaskalson CJ in President of Republic of South Africa v. South African Rugby Football Union [1999] (4) S.A. 147 (C.C.) at 172.

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assessment of human conduct. But unfortunately it often provides a fertile source of grounds for recusal. A joint sitting of the Chief Justice, the Master of the Rolls and the Vice-Chancellor in the Court of Appeal in England20 sought to provide some guidelines with respect to matters which are often thought to impair judicial impartiality. They are set out below in tabulated form using as far as possible the actual words in the joint judgment: i.

Where it is alleged that there is a real danger or possibility of bias on the part of a judicial decision-maker, that danger will be eliminated and the possibility dispelled if it is shown that the judge was unaware of the matter relied upon as appearing to undermine his impartiality. Accordingly, in applying the real danger or possibility of bias test, it is often appropriate to inquire whether the judge knew of the matter in question. … ii. When members of the Bar are appointed to sit judicially, either full or part-time, they may ordinarily be expected to know of any past or continuing professional or personal association which may impair or be thought to impair their judicial impartiality. Although they will know of their own affairs, their independent self-employed status as barristers practising in chambers relieves them of any responsibility for, and usually any detailed knowledge of, the affairs of other members of the same chambers. In contrast, a solicitor who is a partner in a firm of solicitors is legally responsible for the professional acts of his partners and owes a duty as partner to clients of the firm even though he has never acted for them personally and knows nothing of their affairs. Nevertheless, while it is vital to safeguard the integrity of court proceedings, the rules must not be applied in a way which inhibits the increasingly valuable contribution made by solicitors to the discharge of judicial functions. … iii. A judge must recuse himself from a case before any objection is made if the circumstances give rise to automatic disqualification or he feels personally embarrassed in hearing the case. If, in any other case, the judge becomes aware of any matter which can arguably be said to give rise to a real danger of bias, it is generally desirable that disclosure should be made to the parties in advance of the hearing. … iv. In considering whether there is a real danger of bias on the part of a judge, everything depends on the facts, which may include the nature of the issue to be decided. However, a judge’s religion, ethnic or national origin, gender, age, class, means or sexual orientation cannot form a sound basis 20

Locabail Ltd. v. Bayfield Properties Ltd. & Associated Cases [2000] 1 All E.R. 65.

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of an objection. Nor, ordinarily, can an objection be soundly based on the judge’s social, educational, service or employment background or that of his family; his previous political associations; his membership of social, sporting or charitable bodies; his Masonic associations, his previous judicial decisions; his extra-curricular utterances; his previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or his membership of the same Inn, circuit, local Law Society or chambers. … v. In contrast, a real danger of bias may well be thought to arise if there is personal friendship or animosity between the judge and any member of the public involved in the case, if the judge is closely acquainted with any member of the public involved in the case, particularly if that person’s credibility may be significant in the outcome of the case; … vi. Where, following appropriate disclosure by the judge, a party raises no objection to the judge hearing or continuing to hear a case, that party cannot subsequently complain that the matter disclosed gives rise to a real danger of bias. III

How Recusal Bids Have Fared in Four Apex Courts

A quick survey of how four apex courts in common law jurisdictions, including some lesser known jurisdictions, have handled recusal applications is instructive. In the United Kingdom, in Pinochet No. 2 supra, the House of Lords ruled that Lord Hoffmann should have recused himself in the Pinochet extradition case because of his association with Amnesty International (ai), an intervening party in the proceedings. The apparent bias was classified as a case of automatic disqualification because of connection with a party. Lord Browne Wilkinson said (at p. 588): ‘If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart CJ’s famous dictum is to be observed: it is ‘of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’.21 21

R v. Sussex Justices, ex p McCarthy [1924] 1 KB 256 at 259, [1923] All ER Rep 233 at 234.

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In Nigeria, its Supreme Court acceded to the recusal of its chief justice and eight other supreme court judges on the application of Chief Abiola, the victor in the presidential elections, in his bail application on treason charges.22 It was contended that the judges concerned had earlier sued a newspaper owned by Chief Abiola and there would be a perception of bias if they were to hear the criminal charges against him although no actual bias was alleged. Bello CJ applying the Denning test of ‘real likelihood of bias’ from the Metropolitan Properties case, supra, ruled that justice would not appear to be done from a reasonable man’s perspective if he and the eight other judges sat. Accordingly he and the affected judges recused themselves. However in the United States Supreme Court, because of its status as the apex court and the fact that recusal could lead to a tie vote, there is a rule against an associate justice recusing himself out of excess of caution. This is evidently found in a declaratory note called the 1993 Statement of Recusal Policy by the Justices. The Statement was relied on by Justice Antonin Scalia to decline to recuse himself in a case pending before the Supreme Court where then Vice-President Dick Cheney was a party. The ground for recusal was that Justice Scalia had gone on a duck-hunting trip over the summer with the Vice-President and had flown as his guest in the Vice-Presidential plane. In ruling against his recusal,23 Justice Scalia relied, inter alia, on the Policy Statement, and stated (at p. 1394): Let me respond, at the outset, to Sierra Club’s suggestion that I should “resolve any doubts in favor of recusal.” That might be sound advice if I were sitting on a Court of Appeals. But see In re Aguinda, 241 F.3d 194, 201 (C.A.2 2001). There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case. Thus, as Justices stated in their 1993 Statement of Recusal Policy: “We do not think it would serve the public interest to go beyond the requirements of the statute, and to recuse ourselves, out of an excess of caution, whenever a relative is a partner in the firm before us or acted as a lawyer at an earlier stage. Even one unnecessary recusal impairs the functioning of the Court.” Moreover, granting the motion is (insofar as the outcome of the particular case is concerned) effectively the same as casting a vote against the petitioner. The petitioner needs five votes to overturn the judgment below, and it 22 23

Abiola v. Federation of Nigeria [1995] 3 L.R.C. 468. Cheney v. US District Court of Columbia 541 U.S. 913 [2004].

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makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all. The case is also significant for the observation by Justice Scalia on whether friendship with a government official should be a recusal factor where it is an official action and the individual is cited as a party in his official capacity. On this Justice Scalia observed (p. 1394): But while friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue, it has traditionally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or the reputation of the Government officer. On the complaint that he had been a guest in the Vice-Presidential plane for the summer trip, Justice Scalia made this scathing observation (p. 1403): The question, simply put, is whether someone who thought I could decide this case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a Government plane. If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined. On the whole, the Scalia approach seems out-of-step with established criteria in other common law jurisdictions where the predominating factor is perception. Another case of friendship with ruling politicians being raised as a disqualifying factor was the South African Rugby Football Union case, supra, before the South African Constitutional Court. It arose in a case where there was a legal challenge to President Mandela’s appointment of a commission of inquiry into the financial affairs of the Football Union. At the hearing, recusal was sought of Chief Justice Chaskalson and some of the other judges including Justices Langa and Sachs on several grounds. A common ground against the named judges was their close association with President Mandela and the African National Congress (anc, the ruling party) both at a personal and professional level before their appointments to the Bench. Against the Chief Justice it was said that he had been President Mandela’s personal lawyer and had also acted for the President’s wife, and was on social terms with the President. The details of the other grounds for recusal are set out in extenso in the judgment. Recusal

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was refused. The reasons given by the Chief Justice on why past political associations by a judge is not by itself a disqualifying factor is set out below (at pages 185–188): [70] That a Judge may have engaged in political activity prior to appointment to the Bench is not uncommon in most if not all democracies, including our own. Nor should it surprise anyone in this country. Upon appointment, Judges are frequently obliged to adjudicate disputes which have political consequences. It has never been seriously suggested that Judges do not have political preferences or views on law and society. Indeed, a Judge who is so remote from the world that she or he has no such views would hardly be qualified to sit as a Judge. What is required of Judges is that they should decide cases that come before them without fear or favour according to the facts and the law, and not according to their subjective personal views. This is what the Constitution requires. … [71] In this application much reliance was placed by the fourth respondent on the association of its Bench. The to appointment their to prior ANC the with Court this of members the of some necessary therefore to give further consideration to this specific complaint. … [75] As mentioned earlier, all Judges are expected to put any party political loyalties behind them on their appointment and it is generally accepted that they do so. In South Africa, so soon after our transition to democracy, it would be surprising if many candidates for appointment to the Bench had not been active in or publicly sympathetic towards the liberation struggle. It would be ironic and a matter for regret if they were not eligible for appointment by reason of that kind of activity. … [76] In our opinion it follows that a reasonable apprehension of bias cannot be based upon political associations or activities of Judges prior to their appointment to the Bench unless the subject-matter of the litigation in question arises from such associations or activities. In this case that is not alleged by the fourth respondent. It would be invidious to compare one set of circumstances with another but as comparables go it is revealing how different conclusions are arrived at by the application of somewhat similar criteria. By the austere yardstick of the South African and Scalia decisions, the recusals in the Pinochet case and the Nigerian case may well have been over-cautious. In the former cases, the self assertion of impartiality by the judges was the noticeable feature whereas in the latter cases the perception element was the key factor. The perception approach is

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decidedly preferred. There is much force in Lord Devlin’s observation that ‘the judge who gives the right judgment while appearing not to do so may be thrice blessed in heaven, but on earth he is no use at all’.24 24

Patrick Devlin, The Judge (OUP, 1981) at p. 3.

Chapter TWENTY

The Status of Codes of Judicial Conduct in Comparative Perspectives Shimon Shetreet* I Overview In most common law jurisdictions there has been a shift from a practice of non-written judicial traditions on judicial conduct to a practice of written codes. In the United States, the American Bar Association (“ABA”) drafted a code of judicial conduct in 1924.1 The aba’s updated code of judicial conduct is currently embodied in the 2011 Model Code of Judicial Conduct.2 A written judicial code for Federal Judges was adopted in 19733 and there are additional * Shimon Shetreet, LLB, LLM, Hebrew University, MCL, DCL, University of Chicago, holds the Greenblatt Chair of Public and International Law at the Hebrew University of Jerusalem, and is past chairman of the Sacher Institute of Legislative Research and Comparative Law. Author and editor of many books and articles. President International Association of Judicial Independence and World Peace email: [email protected]. 1 American Bar Association 1924 Cannons of Ethics – accessed at www.americanbar.org/ content/dam/aba/migrated/cpr/pic/1924_canons.authcheckdam.pdf. 2 See the Model Code of Judicial Conduct 2011 – accessed at www.americanbar.org/content/ dam/aba/administrative/professional_responsibility/2011_mcjc_table_of_contents .authcheckdam.pdf. 3 See the Code of Conduct for US Judges 1973, as amended – accessed at www.uscourts.gov/ Viewer.aspx?doc=/uscourts/RulesAndPolicies/conduct/Vol02A-Ch02.pdf. The Code of Conduct for United States Judges was initially adopted by the Judicial Conference on April 5, 1973, and was known as the “Code of Judicial Conduct for United States Judges.” See: JCUSAPR 73, pp. 9–11. Since then, the Judicial Conference has made the following changes to the Code: March 1987: deleted the word “Judicial” from the name of the Code; September 1992: adopted substantial revisions to the Code; March 1996: revised part C of the Compliance 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

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_021

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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 (“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 be not legally binding as they were not issued by virtue of an express authority and judges have 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. The Israeli Parliament reversed the 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

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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 the California Cannons of Ethics 2003 – accessed at www.courts.ca.gov/documents/ ca_code_judicial_ethics.pdf, as well as the Texas Code of Conduct – Accessed at www .legalethicstexas.com/Ethics-Resources/Rules/Texas-Code-of-Judicial-Conduct.aspx. Canadian Judicial Council, Ethical Principles for Judges (1998) – accessed at www.cjc-ccm .gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf. Council of Chief Justices of Australia, Guide to Judicial Conduct (2002) – accessed at www .aija.org.au/online/GuidetoJudicialConduct.pdf. For the practice in Australia see Mr Justice Thomas’ study, Judicial Ethics in Australia (2nd ed., 1997). See the Guide to Judicial Conduct (for General Courts) – accessed at www.judiciary.gov .uk/Resources/JCO/Documents/Guidance/guide-judicial-conduct-aug2011.pdf. See the Guide to Judicial Conduct 2009 (UK Supreme Court) – accessed at www .supremecourt.gov.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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duty to disclose to the public certain types of 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 of the officers of other branches of government, such as ministers and members of the legislature.12 In this paper it is proposed to analyse the shift towards a written code of judicial conduct, to discuss the status of the code of ethics, and to examine the considerations which shape the standards of judicial conduct. II

The Binding Force of the Guide to Judicial Conduct in England

The English Guide to Judicial Conduct is generally considered persuasive. However, there are a number of lines of thought that support the view that the Guide to Judicial Conduct is not merely persuasive, but actually rather 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)13 to be published by Cambridge University Press. One such line of thought is that most of the rules contained in the guide to judicial conduct are declaratory of the existing law and of existing standards of judicial conduct.14 11 12

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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 the Ministerial Code approved in 2010 by Prime Minister Cameron following previous Ministerial Codes – accessed at www.cabinetoffice.gov.uk/sites/default/files/resources/ ministerial-code-may-2010.pdf. In the US written rules were enacted by the Ethics in Government Act of 1978 (Public Law 95–251), or by a subsequent amendment to that Act. Shetreet and 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 S. Shetreet, Standards of Conduct of International Judges: Outside Activities, 2 The Law and Practice of International Courts and Tribunals 127 (2003).

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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.15 The view that the duty to obey the rules of ethics contained in the Guide of Judicial Conduct derives from a contractual basis is not a valid view, for judges are not considered to be “persons in Her Majesty’s Service,” but rather statutory officers. This was the basis of the judges’ position in the heated controversy over whether or not the salary cuts of the 1930s would be applied to judges. The judges argued that they were not to be included in the category of “persons in His Majesty’s Service” and therefore they were not subject to the salary cuts under the National Economy Act of 1931.16 In the end, the Judges prevailed and the cuts were not applied to the judiciary branch. III

The Need for a Written Code

The need for a written code of judicial ethics has become necessary due to the substantial increase in the size of the judiciary. With this increasing size, the judiciary’s diversity has also enlarged. The result has been that the rules of conduct which were previously well known to a small, tight knit judiciary have become less intuitive to the now much larger, more diverse judiciary. This effect has been exacerbated by the fact that the tribunal judiciary has now been included in the general judicial system, side by side with the mainstream judiciary. Beyond the issue of the size of the judiciary there is a need to clarify the rules of judicial conduct.17 Particularly, there is a need to clarify the correct 15

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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 (North Holland 1976). For the need for written standards see paragraph 1.2, Judges’ Council Guide to Judicial Conduct (England).

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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.18 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, formerly it was acceptable for a son to appear as a barrister before his father acting as a judge. Today, this is clearly unacceptable, and even unthinkable.19 In shaping standards one should mention the impact of the ECtHR jurisprudence and it is referred to in the Guide to Judicial Conduct.20 IV

Enforcement of Judicial Ethics

In England, the Constitutional Reform Act of 2005 transferred certain disciplinary powers over judges from the Lord Chancellor to the Lord Chief Justice, who is now the head of the judiciary. The Lord Chancellor and the Lord Chief Justice are assisted in the implementation of the Guide to Judicial Conduct by the Office of Judicial Conduct, which was established following the Constitutional Reform Act of 2005. In Israel, one can observe a very negative effect from the Yoav Yizthak case,21 which declared the judicial code of ethics issued by Chief Justice Shamgar in 1993 to be legally invalid. This case sent the message that individual judges are able to make their own ethical rules. In addition, there have been matters involving a very lenient policy toward judges that violated ethical obligations. 18 19

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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 eg Procola v. Luxemburg for a detailed analysis see Shimon Shetreet, The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges, 10 Chicago J. of International Law, pp. 275–332 (2009). See Yoav Yizthak case HCJ 1622/00 Yitzhak v President Barak 54 (2) P D 54, See Shetreet, The Status of Judicial Code of Ethics, in Medina, Fassberg and Weisman, Eds. Festschrift in Honour of Prof Avigdor Levontin, (Sacher Institiute 2013).

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Notable are the recent cases of Bilha Gilor, the President of the District Court of Haifa, and Judge Varda Alshech, of the District Court of Tel Aviv. Judge Gilor intervened in cases relating to her husband through reassigning a judge in her court, Judge Ginat, after ruling against a partner in her husband’s law firm. She thereby took the power to adjudicate a certain category of cases away from this judge. In another example, Judge Alshech unduly changed the protocol of the proceeding before her in order to better support a complaint she filed against a lawyer appearing before her. In both cases the judges were not dismissed even though the findings were clear regarding their wrongdoings. In contrast, in other matters judges were dismissed or otherwise acted against (such as in the case of Judge Hila Cohen, and Judge Osnat Laufer). This has given the appearance of injustice and unequal enforcement of judicial discipline being applied vis – à– vis one group of judges in a far less lenient manner than other judges. This in turn has adversely affected public confidence in the judiciary. In the case of Judge Gilor, instead of initiating discipline against the president Gilor, the complaining judge, Judge Ginat, who had been unduly re-assigned, was transferred to the same level court in Tel Aviv. V Conclusion In Conclusion, though there has been a shift from oral traditions to written codes of judicial ethics. One can make a good argument that the rules 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.

Part Six International Courts and Cross Country Issues

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chapter TWENTY-ONE

Judicial Independence in the Context of International Investment Law Guiguo Wang* Judicial independence is regarded as “one of the fundamental values of the administration of justice,” which values include “procedural fairness, efficiency, accessibility and public confidence in the courts.”1 In order to realize such values, it is important that judges and courts function without interference of other bodies or individuals. At the same time, decisions of the judiciary may not be second guessed except through the established appeal system. As the legal systems of the members of the world community differ and so do their culture, history and stage of economic development, the degree of judicial independence may be dissimilar. Also, in a less interdependent world, judicial independence of nations may remain unaffected by other communities, international or otherwise. In a highly globalized world of today, however, domestic norms are, through treaties, agreements and other instruments, internationalized into international norms which are, through implementation of treaties and agreements, domesticated into national norms.2 In such processes, domestic laws, like antidumping and countervailing duties law, which were subject to the exclusive interpretation by national judges must be interpreted in accordance with international agreements. Otherwise, the judges may violate, on behalf of their country, international obligations. This has happened in international trade and investment. * Chair Professor of Chinese and Comparative Law, City University of Hong Kong; Chairman of the National Committee (HK) and Titular Member of the International Academy of Comparative Law; Chairman of the Hong Kong wto Research Institute; Honorary Advisor to the Ombudsman of Hong Kong; Vice President of the Chinese Society of International Economic Law and an experienced arbitrator. 1 Shimon Shetreet, “Creating a Culture of Judicial Independence: the Practical Challenge and the Conceptual and Constitutional Infrastructure,” in Shimon Shetreet and Christopher Forsyth (ed.), The Culture of Judicial Independence, Matinus Nijihoff Publishers, 2012, p. 18. 2 Harold Hongju Koh refers this process as transnational legal substance and transnational legal process through which international law concepts are “domesticated or internalized into municipal law” and certain rules originated in a domestic legal system become part of international law. See Harold Hongju Koh, “Is There a ‘New’ New Haven School of International Law?,” The Yale Journal of International Law, Vol. 32:559, at 567. © koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_022

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Insofar as international investment is concerned, it is now an important policy of all countries. In order to create a better environment for foreign investment and to compete with other countries for limited foreign capital and technologies, individual countries have tried nearly all means, including entering into bilateral investment protection treaties3 and participating in multilateral mechanisms relating to protection of foreign investment,4 which provide protections to foreign investors. Through the operation of investment protection mechanism— implementation of bilateral investment treaties (“BITs”) and multilateral treaties—judiciaries of the host States are inevitably affected. In most cases, investor-State arbitration involves administrative measures of the host States. Recently, however, there also have been cases in which the actions or inactions of the judiciary of the host States were judged by arbitral tribunals. Thus the independence of judiciary has been called into question. This article, by looking into some of such investment arbitral awards, explores the issue of how and to what extent judicial independence may be affected through the operation of international investment law, in particular investment arbitration. I

Saipem v. Bangladesh

In Saipem v. Bangladesh,5 the Claimant—a company incorporated in Italy, specializing in oil and gas pipeline construction—entered into a contract with Petrobangla—a Bangladeshi state-owned enterprise to build a pipeline for 3 According to unctad, 2833 bilateral investment treaties (bits) had been concluded by the end of 2011. In 2010, a total of 54 new bits were concluded. See World Investment Report 2012, unctad, p. xx. At the end of 2010, the international investment agreements (iia) universe contained 6092 agreements, including 2807 bits, 2976 double taxation treaties and 309 “other IIAs.” Twenty of the 54 bits signed in 2010 were between developing countries and/or transition economies, a trend possibly related to developing countries’ growing role as outward investors. World Investment Report 2011, unctad, p. 100. Beginning with the World Investment Report 2012, unctad no longer includes double taxation treaties among its universe of iias. 4 In this regard, the Convention on the Settlement of Investment Disputes Between States and Nationals of Other Countries (“ICSID Convention”) is most important in providing mechanisms for investor-State arbitration. Other multilateral investment treaties include the Energy Charter Treaty, the North American Free Trade Agreement and other regional free trade agreements. 5 Saipem S.p.A. v The People’s Republic of Bangladesh, icsid Case No.ARB/05/7, Decision on Jurisdiction, 21 March 2007 (hereinafter, “Saipem, Decision on Jurisdiction”), Award, 30 June 2009 (hereinafter, “Saipem, Award”).

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carrying condensate and gas in northeast Bangladesh, a World Bank sponsored project. Due to problems with the local population and other difficulties, the completion date of the project was delayed for one year. Under the Contract, Petrobangla had the right to retain an amount equivalent to 5% of the total contract price until it issued a Final Acceptance Certificate. As the retention money was not paid to Saipem in accordance with the above arrangement, it commenced arbitration proceedings at International Chamber of Commerce (“ICC”) under the contract. In the course of the icc arbitration in Dhaka, Petrobangla first brought an action in a Bangladeshi court to revoke the icc Arbitral Tribunal’s authority, then tried to restrain Saipem from proceeding with the icc arbitration in a local court, and finally, after the icc tribunal continued with the case and rendered an award in favour of the Claimant, filed an application before the High Court Division of the Supreme Court of Bangladesh to set it aside. The Supreme Court of Bangladesh denied the application to set aside the Award on the ground that there was no Award according to Bangladeshi law and therefore there was nothing to be set aside.6 The Claimant then submitted a request for arbitration to International Center for the Settlement of Investment Disputes (“ICSID”), based on the bit between Bangladesh and Italy.7 The first issue facing the Tribunal was whether the Claimant had made an investment. On this issue, the Respondent argued that the criteria established by the Salini case8 and others could not be satisfied on the grounds that the period for the work to be performed was less than one year and that the project did not involve any commercial risk.9 The reason for the Respondent’s second grounds of objection is that as the project was sponsored by the World Bank, the Claimant needed not to put any money into the project and it was only required to carry out the work and be paid for what it would do under the contract. Hence, there was no risk involved. The Respondent also compared this case with Soabi v Senegal,10 in which the Tribunal was of the opinion that the contract concerned, under which the contractor was to be paid as the building project progressed, was not an investment under Article 25 of the icsid Convention and disputes arising thereunder 6 7

8 9 10

Ibid, para. 36. After the dispute was submitted to icsid, the Tribunal firstly issued a Decision on Jurisdiction on 21 March 2007 and then rendered the Final Award on 30 June 2009; see, supra note 5. SaliniCostruttori S.F.A. and Italstrade S.P.A. v. Kingdom of Morocco, icsid Case No. ARB/00/4, Decision on Jurisdiction, 16 July 2001. Saipem, Decision on Jurisdiction, para.102. SociétéOuestAfricaine des BétonsIndustriels (soabi) v Senegal, icsid Case No. ARB/82/1, Award, 25 February 1988, 2 icsid Reports 190, at para. 219.

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could therefore not be investment disputes. The Saipem Tribunal first noted that there was no provision in Bangladeshi law requiring foreign investors to raise funds by themselves, while the drafting history of the icsid Convention also suggested that the origin of the funds was irrelevant.11 It should be noted that in most other cases, tribunals would not consider the definition of investment under domestic laws of the host State and would only rely on the relevant bits and multilateral treaties such as the icsid Convention and the Energy Charter Treaty (“ECT”). The Tribunal went on to observe that “Bangladesh’s argument appears to refer more…to the fact that the investor did not incur any commercial risk because it received an advance payment.”12 The Tribunal disagreed with this by holding that the stopping of the works and the necessity to renegotiate the contract, as well as the contractual mechanism providing for Retention Money, were all examples of inherent risks for the investor.13 The Tribunal’s reasoning is not without question. The origin of the funds would not be a problem if Saipem had itself obtained the loans to finance the project, because it would not then be the host State that would bear the responsibility for paying off such debts. Where the host State provides the necessary funds and makes advance payments for the project, the investor would have less risk, if any. In this connection, the Tribunal emphasized that for the purpose of determining whether there was an investment under Article 25 of the icsid Convention, the entire operation should be considered, including the Contract, the construction itself, the Retention Money, the warranty and the related icc Arbitration, and so on.14 With such considerations, the Claim­ ant’s transaction was considered to be qualified as an investment. To take into account the totality of a transaction for determining the establishment of an investment is reasonable. What is problematic is the inclusion of the dispute settlement arrangement as a factor of investment. Dispute settlement mechanisms set in a contract forms an integral part thereof notwithstanding, it should not be considered as a factor for ascertaining whether or not an investment is made. The dispute settlement mechanism certainly involves uncertainty—risks—to the parties. Yet, whether a transaction can constitute an investment has nothing to do with it. In fact, where a transaction meets all the requirements of the relevant bit and Article 25 of the icsid Convention, even without a dispute settlement mechanism, it is still a covered investment and 11 Saipem, Decision on Jurisdiction, supra note 5, para. 106. 12 Ibid., para. 109. 13 Id. 14 Ibid., para. 110.

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should be protected. The above having been said, a decision resulted from such dispute settlement procedures may crystallize the rights and obligations of the parties concerned. Yet, the decision itself is not an investment or part thereof. The Respondent also argued that: …the fact that the BIT’s definition of investment used the word ‘property’ and not ‘assets’ as in other bilateral investment treaties implies a reference to Bangladeshi law. In support of this assertion, Bangladesh submitted that the word ‘property’ was chosen because it was a notion well known in Bangladesh, thus suggesting that the word ‘property must be interpreted according to its ordinary meaning in Bangladeshi law’.15 The Tribunal maintained that the interpretation of the icsid Convention and the bit should be governed by international law.16 This approach of interpretation is consistent with the practice of investment arbitration, as such treaties are international instruments, they must be interpreted in accordance with international law principles. At the same time, where there is a requirement that investment be made in accordance with domestic laws, the domestic law provisions must be interpreted with national law principles in respect of interpretation. The result of this exercise will impact the definition of investment under treaties. In addition to the icsid Convention, the Tribunal’s jurisdiction is also restricted by the Bangladesh—Italy bit, Article 9 of which provides that: (1) “Any disputes arising between a Contracting Party and the investors of the other, relating to compensation for expropriation, nationalization,  requisition or similar measures including disputes relating to the amount of the relevant payments shall be settled amicably, as far as possible. (2) In the event that such a dispute cannot be settled amicably within six months of the date of a written application, the investor in question may submit the dispute, at his discretion for settlement to: (a) the Contracting Party’s Court, at all instances, having territorial jurisdiction; (b) an ad hoc Arbitration Tribunal, in accordance with the Arbitration Rules of the ‘UN Commission on International Trade Law’ (uncitral), 15 16

Saipem, Decision on Jurisdiction, supra note 5 para. 81. Ibid., para. 78.

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(c) the ‘International Centre for the Settlement of Investment Disputes’, for the application of the arbitration procedures provided by the icsid Convention of 18th March 1965 on the ‘Settlement of Investment Disputes between States and Nationals of other States’, whenever, or as soon as both Contracting Parties have validly acceded to it.” Literally, the Bangladesh—Italy bit limits icsid’s jurisdiction only to issues relating to compensation for expropriation, nationalization, requisition or similar measures, including the amount of the relevant payments. This is quite similar to the earlier practices of the former Soviet Union and some Eastern European States, as well as China.17 A number of icsid tribunals had examined such provisions before, most of which upheld icsid jurisdiction. Those that denied jurisdiction did so mostly because the investor failed to prove that jurisdiction was appropriate based on prima facie evidence.18 In Saipem, the Tribunal referred to the decision in Impregilo, i.e. “whether the facts as alleged by the Claimant, if established, are capable of coming within those provisions of the bit which have been invoked.”19 In other words, if the dispute alleged by the Claimant is within the scope of the bit, the Tribunal should first exercise its jurisdiction. The issue of whether the Respondent breached the agreement should then be examined at the merits stage. This approach inevitably involves different standards to be applied at the jurisdictional and merits stages. Inter­ national investment arbitration practices suggest that tribunals tend to apply a lower standard at the jurisdictional stage and a more demanding one in examining the respondent’s breach of the agreement.20 Notwithstanding the 17

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For discussion on China’s practice in this regard, see Guiguo Wang, “China’s Practice in International Investment Law: From Participation to Leadership in the World Economy,” in Mahnoush H. Arsanjani, Jacob Katz Cogan, Robert D. Sloane and Siegfried Wiessner (ed.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman, Martinus Nijhoff Publishers (2011), pp. 845–890. For example, see, Vladimir Berschader and MoïseBerschader v The Russian Federation, Stockholm Chamber of Commerce (scc), Award on 21 April 2006; and Ros Invest Co UK Ltd v The Russian Federation, Award on Jurisdiction October 2007. Saipem, Decision on Jurisdiction, supra note 5, para.84. Regarding the Impregilo case, see, Impregilo S.p.A. v Islamic Republic of Pakistan, icsid Case No. ARB/03/3, Decision on Jurisdiction, 22 April 2005. As for the criteria for whether or not the prima facie evidence of jurisdiction is established, see UPS v. Canada, Decision on Jurisdiction, 22 November 2002, paras. 33–37; Siemens v Argentina, Decision on Jurisdiction, 3 August 2004, para. 180; Plama v Bulgaria, Decision on Jurisdiction, 8 February 2005, paras. 118–120 and 132; and Bayindir v Pakistan, Decision on Jurisdiction, 14 November 2005, paras. 185–200. Saipem, Decision on Jurisdiction, supra note 5, paras. 85–86.

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reasons behind the application of differed standards, this practice has made it easier for tribunals to assume jurisdiction. After making this positive decision on jurisdiction, the Tribunal moved on to examine whether or not the Respondent had violated its bit with Italy. The Claimant alleged that Bangladesh violated Article 5 of the bit, which provides that: (1) “The investments to which this Agreement relates shall not be subject to any measure which might limit permanently or temporarily their joined rights of ownership, possession, control or enjoyment, save where specifically provided by law and by judgments or orders issued by Courts or Tribunals having jurisdiction. (2) Investments of investors of one of the Contracting Parties shall not be directly or indirectly nationalized, expropriated, requisitioned or subjected to any measures having similar effects in the territory of the other Contracting Party, except for public purposes, or national interest, against immediate full and effective compensation, and on condition that these measures are taken on a non-discriminatory basis and in conformity with all legal provisions and procedures.” The Tribunal was of the opinion that “the guarantee against expropriation of Article 5(2) only comes into play if (i) there is an expropriation and (ii) that expropriation is not justified by ‘public purposes’ or ‘national interest’, does not conform to ‘all legal provisions and procedures’, is not adequately compensated, or is discriminatory.”21 The Respondent did not claim in the hearing that the intervention by the local courts was driven by public purposes or the national interest, and it was common ground that no compensation was paid.22 Therefore, the Tribunal considered that it should first consider whether the Respondent had violated Article 5(1) of the bit. The Tribunal emphasized that the Respondent, as a Contracting Party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), was obliged to “recognize” the validity of the arbitration agreement.23 Based on that obligation, it is generally acknowledged that the issuance of an anti-arbitration injunction can amount to a violation of the Convention. Technically, the courts of Bangladesh did not target the arbitration or the arbitration agreement in itself, but revoked 21 22 23

Saipem, Award, supra note 5, para. 125. Ibid., para. 126. Ibid., para. 166.

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the authority of the arbitrators. This also amounts to a violation of Article 2 of the New York Convention because it de facto “prevents or immobilizes the arbitration that seeks to implement that [arbitration] agreement.”24 II

White Industries v. India

White Industries25 case was decided less than two years after the Saipem case and in the same year as the GEA case. It also involved enforcement of a commercial arbitral award through an investment treaty. The Claimant in that case was a company constituted in accordance with the laws of Australia. In the 1970s–1980s, India decided to develop its coal resources. For that purpose, it set up a wholly State-owned company—Coal India, which in the name of its subsidiary—entered into a contract with the Claimant for the production of coal in India. Under the contract, the Claimant had an obligation to provide services related to the production of coal including supply of equipment and technical services. The contract also contained provisions for bonuses and penalties of the Claimant depending on its performance. A dispute occurred between the Claimant and Coal India: the Claimant argued that it was entitled to bonuses and Coal India contended that it was entitled to impose penalties. The two parties submitted their disputes to the International Chamber of Commerce for arbitration which awarded the Claimant more than four million Australian dollars.26 Soon thereafter, Coal India applied to an Indian court— the Calcutta High Court—to set aside the Award, which granted Coal India leave to apply and ordered the matter returnable.27 Thereafter, with the arbitral award at hand, the Claimant applied to the High Court at New Delhi for enforcing the award. Then there were a number of back and forth actions by the Claimant and Coal India in different Indian courts without substantial result. On 27 July 2010, more than seven years after it requested to enforce the icc award, the Claimant instituted investment arbitration against the Respondent—India—for violation of the Australia-India bit.28 The Tribunal of White Industries started its analysis by examining whether   the Claimant was a covered investor and its transaction was a 24 25 26 27 28

Ibid., para. 167. White Industries Australia Limited v. The Republic of India, uncitral Case, Final Award, 30 November 2011. See ibid, paras. 3.2.1–3.2.33. Ibid, para. 3.2.35. Ibid, para. 2.1.1.

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covered investment. The Australia-India bit defines an investment to mean, inter alia, “right to money or to any performance having a financial value, contractual or otherwise.”29 The Tribunal considered that the double-barreled test “imposes a higher standard than simply resolving whether there is an ‘investment’ for the purposes of a particular BIT”30 and yet such test was only applicable to cases under icsid arbitration. The same applied, in its view, to the Salini test. Nevertheless, it moved on to analyze how the Claimant’s transaction met all the elements of the Salini test and concluded it had “comprehensively satisfied any rationemateriae test that may be said to exist under the BIT.”31 With regard to the relationship between the icc arbitral award and definition of investment, the White Industries Tribunal adopted the position of the Saipem Tribunal by concluding that “rights under the Award constitute part of White’s original investment (i.e., being a crystalisation of its rights under the Contract) and, as such, are subject to such protection as is afforded to investments by the BIT.”32 Then the question that remains is whether the non-enforcement or delayed enforcement would constitute a breach of the bit. In fact, unless the Respondent is found to have violated the bit, there will be no remedy to the Claimant. The Tribunal did not find India had breached the India-Australia bit by the courts for there had been no bad faith on the part of the Indian judiciary.33 In its mind, the delay in the judicial process in India “not particularly surprising,”34 even though it was “certainly unsatisfactory.”35 At the same time, in the Tribunal’s view, the Claimant “either knew or ought to have known at the time it entered into the Contract that the domestic court structure in India was overburdened.”36 Therefore, the Claimant should not have had any expectation that its award would be enforced in a particular manner or timeframe.37 The matter however did not stop there. The Claimant, by relying on the mfn clause of the bit (Article 4.2), argued that in the India-Kuwait bit Article 4(5) there was a provision that “Each Contracting State shall in accordance with its applicable laws and regulations, provide 29 30 31 32 33

34 35 36 37

Article 1 (iii) of the Australia-India bit. Ibid, para. 7.3.1. Ibid, para. 7.4.9. Ibid, para. 7.4.19. Ibid, para. 7.6.10. Ibid, para. 10.4.23. The Tribunal stated that the conduct of the Indian courts did not amount to “a particularly serious shortcoming” or “egregious conduct that ‘shocks or at least surprises, a sense of judicial proprietary’.” Ibid. Ibid, para. 10.4.12. Ibid, para. 10.4.22. Ibid, para. 10.3.14. Ibid, para. 10.3.15.

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effective means of asserting claims and enforcing rights with respect to investments.” (emphasis added) Based on this provision, the Tribunal concluded: In these circumstances, and even though we have decided that the nine years of proceedings in the set aside application do not amount to a denial of justice, the Tribunal has no difficulty in concluding the Indian judicial system’s inability to deal with White’s jurisdictional claim in over nine years, and the Supreme Court’s inability to hear White’s jurisdictional appeal for over five years amounts to undue delay and constitutes a breach of India’s voluntarily assumed obligation of providing White with ‘effective means’ of asserting claims and enforcing rights.38 The Tribunal then went on to analyze in detail whether there was any ground for the award to be denied recognition and enforcement. With the finding that there was no ground to refuse enforcement of the arbitral award “under the laws of India,”39 the White Industries Tribunal considered India to have failed to provide “effective means” of asserting claims.40 Again it did not explain what the threshold for provision of “effective means” was and the surrounding circumstances to be considered in established whether a system failed to provide the “effective means.” It should also be noted that the Tribunal concluded that there was no ground under Indian law to refuse enforcement of the award. In other words, it put itself in the shoes of Indian judges at least in this aspect. One may wonder if the Tribunal was qualified to make judgments under Indian law. III

GEA v. Ukraine

A little more than a year later after the Saipem decision, the investment arbitration community was faced again the request to treat a commercial arbitral award as investment—GEA v. Ukraine.41 The Claimant, a company incorporated under the laws of Germany, entered into a conversion contract with a company incorporated in Ukraine, a former State-owned entity—OJSC Oriana (“Oriana”). Per the conversion contract, the Claimant was to provide Oriana 38 39 40 41

Ibid, para. 11.4.19. Ibid, para. 14.2.66. Ibid, para. 14.4.4. GEA Group Aktiengesellschaft v. Ukraine, icsid Case No. ARB/08/16, Award, 31 March 2011.

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each year with 200,000 tons of naphtha fuel for conversion. During the implementation of the conversion contract, some incidents occurred which triggered disputes among the parties in relation to the quality of raw materials and finished products as well as missing of a large quantity of products. Subsequently a settlement agreement and repayment agreement were signed by the parties, both of which contained a dispute settlement mechanism—naming icc as the institution for arbitration. Not satisfied with the performance of the two agreements with Oriana, the Claimant commenced arbitration proceedings at icc, which rendered an award largely in favour of the Claimant on 25 November 2002.42 Thereafter, the Claimant started a long journey in having the arbitral award enforced in Ukraine. Three years later, when all its petitions were dismissed by Ukraine courts, the Claimant instituted an icsid arbitration alleging that Ukraine had violated its rights under the Germany-Ukraine bit (1993).43 Like many other investment arbitration cases, an important question facing the Tribunal was whether the conversion contract constituted a covered investment as challenged by the Respondent. The Tribunal implicitly adopted the double-barreled analysis. It referred in summary form the cases that had either supported or opposed the double-barreled approach. It nevertheless considered that the investment per se should have “an objective meaning in itself.”44 With the objective meaning in mind, the Tribunal first pointed out that in Article 1(1) (e) of the bit an investment was defined to include “rights to the exercise of an economic activity.” It then related the above provision to the last sentence of the Article that “any change to the form in which assets are invested shall not affect their nature as investments” and concluded that the term “investment” should be interpreted in a “broader context of an investment operation.”45 In its view, the conversion contract not only satisfied the requirements of the bit but also the objective criteria of Article 25 of the icsid Convention. The question remained to be answered was the impact that this underlying transaction—covered investment under both the bit and icsid Convention—had on the icc award. On the matter whether or not the icc award could be a covered investment, the Tribunal considered that the term “investment” itself should have an 42 43 44 45

Ibid, para. 62. Ibid, para. 7. Ibid, para. 141. Ibid, para. 149. Regarding the conversion contract, the Tribunal put it in the broader context as follows: it “was more than just goods against a tolling fee—it established a relationship of ‘common interest’ whereby KCH (and, ultimately GEA) would, among other things, assist with delivery of logistics and pay for Ukrainian domestic freight, resolve customs issues, and supply the Oriana plant with necessary materials.” Ibid.

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objective meaning. On that basis, it stated that the “ICC Award—in and of itself—cannot constitute an investment” for the reason that it was a legal instrument for the disposition of rights and obligations arising from settlement agreement and repayment agreement.46 The underpinning of this statement is that the conversion contract was an investment but the settlement agreement and repayment agreement were resulted from the conversion contract. As a result, in the view of the Tribunal, the icc award was not directly from an investment. It further stated that even if the icc award “could be characterized as directly arising out of the conversion contract,” the award did not equate itself with an investment as it ruled upon “rights and obligations arising out of an investment.”47 In other words, the Tribunal treated the icc award and the underlining investment as two separate matters. This position clearly departed from that of Saipem case which was decided earlier and the White Industries case decided later. The GEA Tribunal in fact criticized the Saipem decision as the statements thereof could not reconcile with each other.48 The GEA decision, in particular its criticisms of the Saipem decision, has indeed raised serious issues for those involved in international investment law to consider. IV Appraisal Notwithstanding the differences in other respects of the Saipem, White Industries and GEA, the three cases have one thing in common—they all involve enforcement of a commercial arbitral award. The question is whether investor-State dispute settlement mechanisms should be used for enforcing de facto commercial arbitral awards. One notes that investment arbitration and commercial arbitration are two distinctive mechanisms for resolving disputes. Commercial arbitration may deal with any dispute arising from commercial transactions. It is often the case that in such circumstances, the underlying transaction is a commercial contract with either a private party or a State, which may include sale and purchase contracts, joint venture contracts, turnkey contracts, construction, management, production, concession, revenue-sharing and other similar contracts. The essential legal basis for 46 Ibid, para. 161 (emphasis original). 47 Ibid, para. 162. 48 The GEA Tribunal considered that the Saipem Tribunal under one heading said the icc award to be part of the investment, under another heading not an investment and then under still another heading, not necessary to decide whether it was part of the investment. See ibid, para. 163.

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resolving such commercial disputes is the underlying contract between the parties. Unless a State itself is a party thereto, the implementation of such contracts does not involve States except their courts may be asked to resolve the differences of parties or enforce arbitral awards. In the latter case, courts may be required to give effect to obligations arising from bilateral and/or multilateral treaties like the 1958 New York Convention. In making their decisions, the judiciary of any State has complete independence in making their own decisions—whether a given judiciary’s operation is affected by other factors within its own country—insofar as international law is concerned. Investment arbitration on the other hand is designed for settling disputes between a foreign investor and the government of the country where it has made an investment—the host State—which is protected by a bit between the investor’s home State and the host State. It should be noted that in such cases, the foreign investor is not a party to the bit.49 At the same time, even though in most cases investment arbitration does not deal with breaches of contract between a foreign investor and the host State, a breach of such contract may constitute a violation of bit in accordance with the umbrella clause.50 Yet, even in cases where the umbrella clause is a dispute, decisions of judiciaries of host States have never been questioned. In practice, for purposes of distinguishing commercial transactions from investments, bits may include provisions to exclude commercial transactions from being qualified as investments. For instance, in Japan—Singapore EPA (2002), Article 72(a)(v) provides that investments include “claims to money and claims to any performance under contract having a financial value.” Then in a note to the contract, it is stipulated that “for the purposes of this Chapter… ‘claims to money and claims to any performance under contract’…refer to assets which relate to a business activity and do not refer to assets which are of a personal nature, unrelated to any business activity.”51 The Canada’s model bit 49

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For discussion on the relationship between a foreign investor and a host State, see Jan Paulsson, “Arbitration Without Privity,” 10 icsid Review—Foreign Investment Law Journal 232–257 (1995). For discussion on the umbrella clause, see Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law, Oxford University Press (2008), pp. 153–162; also Jarrod Wong, “Umbrella Clauses in Bilateral Investment: Of Breaches of Contract, Treaty Violations, and the Divide between Developing and Developed Countries in Foreign Investment Disputes,” George Mason Law Review, Vol. 14, No. 1 (2006), pp. 137–179. For the full text of the Agreement between Japan and the Republic of Singapore for a New-Age Economic Partnership (“Japan-Singapore EPA”) (2002), see http://www.mofa .go.jp/region/asia-paci/singapore/jsepa-1.pdf.

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(2004) also provides in Article 1: “investment does not mean, (X) claims to money that arise solely from (i) commercial contracts for the sale of goods or services by a national or enterprise in the territory of a Party to an enterprise in the territory of the other Party […].” The object of provisions like this is to remove any doubt on the definition of investment. One of the features of contemporary investment arbitration, as illustrated in the three cases discussed earlier, is that it impacts on the decisions of judiciaries, in other words, judicial independence of the host States. Such effects on judicial independence may be direct or indirect. Where an investment arbitration tribunal excessively interprets treaty provisions involving jurisdictional issues, it may have taken away opportunities of judiciaries of host States in terms of performing their functions of interpreting local laws and treaty provisions. In Saipem, the Claimant also argued that the Contract was an investment as defined in the bit and that “the rights accruing from the ICC Award fall squarely within the notion of ‘credit for sums of money […] connected with investments’ set out in…the BIT.”52 The Respondent contended that these words would normally include bank deposits or book debts on a running account. The Tribunal was of the opinion that “[t]his may well be so. However, in their ordinary meaning, the words ‘credit for sums of money’ also cover rights under an award ordering a party to pay an amount of money: the prevailing party undoubtedly has a credit for a sum of money in the amount of the award.”53 This holding did not leave the matter with no ambiguities. The reason for an arbitral award to crystallize the rights and obligations of the parties is because of the underlying transaction qualified as an investment. On this basis, only when the underlying transaction constitutes an investment, could an award representing “a credit for a sum of money” be treated as an investment under the bit. Without the underlying transaction being a qualified investment, the arbitral award may not be treated as representing the rights of a party. Without such restrictions, an ordinary commercial dispute which is not qualified as an investment may become an investment, after an arbitral tribunal delivers an award, which represents a claim to a sum of money or credit for sums of money. There is no evidence that the founding fathers of the icsid Convention intended to make such awards investments. In fact, even if the Claimant’s undertaking in the building project constituted an investment, it still remained to prove that the dispute arose “directly out of” the investment. During the hearings, the Respondent objected to the icsid Tribunal’s jurisdiction on the ground that, among other things, the 52 53

Saipem, Decision on Jurisdiction supra note 5, para. 125. Ibid. para. 126.

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contract was not an “investment” and, even if it was, it had nothing to do with the Bangladeshi government because the dispute arose from Petrobangla’s payment due to the Claimant.54 By referring to the words of the Report of the Executive Directors of the World Bank on the icsid Convention, the Tribunal held that the dispute was legal in nature because it dealt with “the existence or scope of [Claimants’] legal rights” and with the nature and extent of the relief to be granted to the Claimants as a result of the Respondent’s alleged violation of those legal rights.55 In other words, the rights embodied in the icc Award were not created by the Award, but arose out of the Contract. The icc Award crystallized the parties’ rights and obligations under the original contract.56 This conclusion is obviously questionable. Whether the Claimant’s transaction constituted an investment notwithstanding, the dispute could be considered as “directly out of” the investment as there was an arbitral award in between. According to the Saipem Tribunal, however, since the contracting parties chose to arbitrate in Dhaka and to apply Bangladeshi law, the courts of the Respondent therefore had supervisory jurisdiction over the arbitration.57 Those courts’ responsibilities are also ascertained by reference to Bangladeshi law. Pursuant to Section V of the Bangladeshi Arbitration Act of 1940, “the authority of an appointed arbitrator is irrevocable except with the leave of the court, unless a contrary intention is expressed in the arbitration agreement.” With such statements, the investment tribunal was in fact judging the behavior of the judiciary of Bangladesh. In the Saipem case, the tribunal could not find any violations by Bangladeshi courts of the domestic laws in revoking the authority of the icc arbitrators. The Saipem Tribunal nevertheless considered that in international law a State authority exercising a right for a purpose that is different from that for which that right was created commits an abuse of rights.58 Thus, the Bangladeshi courts were held to have abused their power not by excessively exercising the power but by taking no actions—enforcing the icc arbitral award. It must be noted that Saipem was the first case in the history of investment arbitration that a State was held liable for its courts’ abuse of power by not enforcing a commercial arbitral award. The Saipem Tribunal’s decision must be assessed against the background that during the icc hearings Petrobangla raised a number of objections to the proceedings but most of them were rejected. Petrobangla then resorted to the 54 55 56 57 58

Ibid., para. 76. Ibid., para. 95. Ibid., para. 127. Ibid., para. 115. Ibid., para. 160.

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Bangladeshi courts to revoke the results of the arbitration. This raised concerns that Petrobangla might have colluded with the courts. In the view of the Saipem tribunal, as the icc award did not constitute an exception under Article 5 of the New York Convention, the Bangladeshi courts had an obligation to enforce it but they did not do so and therefore “exercised their supervisory jurisdiction for an end which was different from that for which it was instituted and thus violated the internationally accepted principle of prohibition of abuse of rights.”59 The Saipem Tribunal also held that the non-enforcement by the Bangladeshi courts of the icc award constituted an instance of “measures having similar effects” with expropriation within the meaning of the bit—indirect expropriation—which resulted in substantially depriving the Claimant of the benefit of the icc Award.60 Thus a non-enforcement decision by local courts was elevated to a breach of treaty obligation relating to expropriation, which was subject to the judgment of investment arbitration tribunals. Albeit whether commercial arbitration awards should be treated as investments is new to everybody, investment arbitral tribunals have no hesitation to cast views on decisions of domestic courts. As a result, judicial independence is unavoidably affected. Unfortunately, no treaties—bilateral or multilateral— contain provisions on such matters and thus cannot offer much help. Yet, in exercising their arbitration authorities, investment tribunals have not conducted detailed and persuasive analysis. The Saipem Tribunal’s crystallization theory was novel. Whilst bits and Free Trade Agreements provide very broad definition of investment, there is danger of misuse—investment dispute settlement mechanism being abused for enforcement of commercial arbitral awards. The GEA approach to separate commercial arbitral awards from investment—articulating an investment in and of itself having an objective meaning is helpful in safeguarding the distinctiveness of the two dispute settlement systems—investment and commerce. Yet, it was also subject to disagreement. White Industries, for instance, the Tribunal simply regarded the decision of the GEA case as obiter dicta and concluded that it represented “an incorrect departure from the developing jurisprudence on the treatment of arbitral awards.”61 Yet, by the time the White Industries Tribunal rendered its decision, there had 59 60

61

Ibid., para. 161. Ibid., para. 129. The Tribunal also pointed out that its decision was based on the fact that Petrobangla did not have any assets overseas and therefore Saipem could not seek enforcement of the icc Award in other countries in accordance with the New York Convention; ibid., para. 130. White Industries v. India, Award, supra note 25, paras. 7.6.7–7.6.8.

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been only two well-known cases—Saipem and GEA. On what basis that it considered the GEA decision to be an incorrect departure from the development was neither explicitly stated by the tribunal nor known by others. The White Industries Tribunal did not even make an effort to explain its position. It did admit in a footnote that tribunals in Mondev,62 Chevron63 and Frontier Petroleum Services64 “characterised their findings as providing protection to the subsisting interests” of the Claimants in the original investments rather than categorized such awards as investment per se.65 This actually informatively confirms that there is hardly a trend or development to treat commercial awards as investments. This having been said, it is likely that out of different considerations, tribunals are likely to assert jurisdiction in cases involving enforcement of commercial arbitral awards. Clearly the effects of decisions of the few investment arbitration cases on judicial independence are pervasive and long lasting.66 National courts must now consider international consequences in making decisions—with regard to either interpreting domestic laws or treaty provisions. Thus, in the contemporary highly globalized world, judicial independence has restraints stipulated by international treaties. At the same time, as most countries are parties to bits and multilateral treaties ranging from a few to one to two hundred in number, investment arbitration decisions like those discussed earlier have the effect in uniforming the standards of judicial practice of the States. Though the impact may not be distinct in the near future, such processes will eventually result in some shared international standards of judicial practice—independence of the judiciary. 62 63 64 65 66

Mondev International v. United States, icsid Case No. ARB(AF)/99/2, Award, 11 October 2002. Chevron Corporation (USA) and Texaco Petroleum Company (USA) v. Ecuador, uncitral Arbitration, Final Award, 31 August 2011. Frontier Petroleum Services Ltd. v. The Czech Republic, uncitral, Final Award, 12 November 2010. White Industries v. India, Award, supra note 25, para. 7.6.8. As a matter of fact, some scholars have started to challenge the investor-State arbitration mechanism: for example, Van Harten argued that “consensual arbitration…is simply inadequate as a substitute for the public courts. The courts [and only the courts] should have the final authority to interpret the law that binds sovereign power and to stipulate the appropriate remedies for regulatory measures that lead to business loss.” He also recommended the creation of an international investment court of tenured judges to provide an open, accountable, and genuinely independent system to resolve investment disputes. See Gus van Harten, Investment Treaty Arbitration and Public Law, Oxford University Press (2007).

Chapter TWENTY-TWO

Judicial Impartiality in International Courts Of Law and Corruption

Wayne McCormack*,1 The essence of the Rule of Law is ordering affairs according to principle rather than prerogative. Thus the essence of judging is decision-making dominated by principle rather than preference. It would be foolhardy to expect any human to exclude preference entirely from her decision processes, but the dominant concern when confronted with a problem or a dispute must be principle gleaned from some recognised authoritative source, not the judge’s own preferences or national identity. Therein lies a challenge for judges of the many proliferating international courts.2 As others have pointed out, the initial assumption behind the creation of international courts was that judges would be selected by nationality and that balance in the court would be achieved by balancing the nationalities of the panels. If the world is to take the Rule of Law seriously, it is time to abandon that assumption in favor of professional standards by which each judge is assessed according to his or her performance on the basis of principle above national preference.3 I

Importance of the Rule of Law

It is not possible to have a functioning economic system without adherence to the Rule of Law. Actors in the system must know whether they can expect their * E.W. Thode Professor of Law at the University of Utah. He has written widely in constitutional law and international criminal law with emphasis on counter-terrorism. 1 Third-year law student and Quinney Fellow Lauren Hansen contributed valuable research assistance, including the chart in the Appendix and the examples of alleged national bias. My thanks to her and to the S.J. Quinney Foundation that made her work possible. 2 The prospect of actual bias or conflict of interest have been addressed in the procedures of most international courts. See Joseph R. Brubaker, “The Judge Who Knew Too Much: Issue Conflicts in International Adjudication” 26 Berkeley J. Int’l L. 111 (2008). 3 Tom Dannenbaum, “Nationality and the International Judge: The Nationalist Presumption Governing the International Judiciary and Why it Must Be Reversed,” 45 Cornell Int’l L.J. 77 (2012). © koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_023

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trading partners to live up to bargains made, must have some sense of what to expect if things go wrong, and must have some assurance that there is a force greater than the other side of the bargain to ensure that these deals will stick. Otherwise, we are talking about trade by the will of the stronger. As many corrupt societies today demonstrate, when corruption and power trump legal norms, there can be no innovation and no entrepreneurship by the ordinary citizen, all money and power accumulates in the hands of an oligarchy, and the gap between the mega-wealthy and the citizenry increases to the point of eventual explosion. Similarly, it is impossible to have confidence in a political system that is not governed by the Rule of Law. The Arab Spring of 2011 brought widespread hope of political reforms that would move numerous countries away from autocratic dictators toward stable democracies. But those hopes are collapsing in the wave of civil unrest and wars of 2013. Without trust in a system of legal transitions of authority, and without trust in international enforcement of human rights, it is virtually inevitable that there will be clashes between dissidents and rulers, between populists and militants, and among factions of multitribal political entities. The hallmarks of Rule of Law were set out by Lon Fuller in his famous essay on the “Morality of Law.”4 Fuller’s multiple criteria for the rule of law could be summarised as the need for visibility and uniformity in application of rules. For society to function smoothly and peacefully, people must know what to expect, which means that the law needs to be visible and it must be applied uniformly. It took me a while to figure out why the statue of Lady Justice is presented blindfolded—who wants a decision maker who doesn’t know what’s going on around her? But I finally realised that the blindfold is so that she doesn’t know who the parties are. She applies the law according to the book in her hand, not according to the persons before her or even her own preferences. More recently, the watchwords for social justice have become “transparency and accountability.” Transparency International promotes “a world in which government, politics, business, civil society and the daily lives of people are free of corruption.”5 Which raises the question of what is corruption? 4 Fuller presented eight propositions by which to assure the failure of a system of law: 1. The lack of rules or law, which leads to ad-hoc and inconsistent adjudication. 2. Failure to publicize or make known the rules of law. 3. Unclear or obscure legislation that is impossible to understand. 4. Retroactive legislation. 5. Contradictions in the law. 6. Demands that are beyond the power of the subjects and the ruled. 7. Unstable legislation (ex. daily revisions of laws). 8. Divergence between adjudication/administration and legislation. 5 http://www.transparency.org/whoweare/organisation

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Let’s pick apart that concept of corruption. The obvious low-level of corruption is exemplified by the day when the police officer stopped me on my first day in Chicago at age 25 for driving my rental truck down a street which he referred to as a “boulevard.” As he continued to insist that it was “illegal to drive a truck on the boulevard,” it slowly dawned on me that I was expected to hand over a $20 bill in lieu of receiving a traffic citation. In turn, it seemed to dawn on him that this poor college grad had no $20 bill to offer so he sent me on my way with very little hard feelings. This scenario is repeated over and over in many countries when police making a routine traffic stop have no intention of putting the driver into the legal system but simply expect a fee for allowing the driver to proceed on his or her business. What might be considered the mid-level of corruption takes that basic transaction and escalates it to somewhat more dramatic levels. I recently was told of a mother in Russia who paid to have her son exempted from military service. This was a common practice in the U.S. during the Civil War when Union citizens could purchase exemption from conscription. Ironically, if written into law, this would not be labeled corruption but simply an unfairness in the law itself on behalf of the affluent. Nevertheless, when the societal norm is that “requirements” are simply statements of occasions for fees to low—or mid-level officials, the society no longer has social cohesion. That is exactly the situation in many nations of the world today where graft (bribery) is just a way of life. The high-end brand of corruption can be either blatant thievery or subtle influence peddling. Afghan officials who have spirited billions of dollars in U.S. aid out of the country to secret bank accounts in islands around the world have engaged in blatant corruption. They may have obtained that money through a series of “cutouts” in which the aid funds went to some apparently worthwhile enterprise, such as building a school or hospital, but the payments for goods, services, and even government permits siphoned off a substantial portion of the funds before any bricks and mortar hit the ground—if they ever did. The U.S. has put considerable effort into trying to trace these funds to forestall their disappearance, largely to no avail. I have spoken with U.S. officials who would love to have more clout to investigate and bring these political figures to task, but the impediments are both logistical (manpower, culture, technology) and political (protection of some critical figures in corrupt regimes). The message here is that outright thievery is not likely to end until the donor governments simply shut off the faucet. The subtle influence-peddling form of corruption is embedded in the realities of political systems including even widely respected systems such as the U.S. Take, for example, Dick Cheney’s ties to Halliburton. Was he directly paid for funneling contracts to his old buddies? Surely not. But were there favors

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and expectations of favorable treatment among people who trusted each other? Undoubtedly. It has been documented credibly that he received about $34 million as an “exit package” for moving from ceo of the company to VicePresident of the U.S.6 If the Vice-President had influence over government contracts, it would be almost impossible to avoid favoring the people and firms in whom he already had confidence. So in some degree, the money doesn’t even matter. If this is considered corruption, it is not only difficult to ferret out, it is difficult to define. Why shouldn’t a government official grant a contract to a company who she knows is likely to do a good job? The answer to that question lies in the concepts of transparency and accountability. Government procurement rules and practices should be designed to ensure that anyone with an interest can determine the bases on which a decision was made and can hold the decision maker accountable for decisions that don’t bear scrutiny. The same can be said of judging—the bases of judges’ decisions must be transparent and they must be accountable. Thus the need for articulate opinion writing setting out the judges’ reasoning in clear terms followed by critique by knowledgeable commentators—transparency and accountability. II

The Relation of Corruption to Judging

As stated earlier, the essence of judging is making decisions predominantly on principle rather than preference. Again, a judge can hardly be expected to exclude all feelings of political preference from her decisions, but the dominant motivation of any decision should be principle. The principles of decision, consistent with the Fuller notion of law, must be visible and uniformly applied. No system that does not emphasise principle over preference is going to survive as part of the Rule of Law. A

The Challenge

So a judge operating in a corrupt regime has a formidable challenge. Take an easy example from what we found in 2007 in Afghanistan. A judge’s salary was about $60 per month while the cost of living for a family of four in Kabul was $500 per month. Do the math and you realise that the judicial position was just 6 “Halliburton gave Dick Cheney a $34 million payout when he left the company to join the presidential ticket,” Tampa Bay Time PolitiFact, http://www.politifact.com/truth-o-meter/ statements/2010/may/24/chris-matthews/chris-matthews-says-cheney-got-34-million -payday-h/ (last view 11 Sept., 2012).

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a license for soliciting bribes. At that point, it was estimated by local observers that about 80% of all dispute resolution proceeded not through the formal system but through informal dispute resolution in the local jirgas (jirga = consortium of village elders). For a judge to decide cases according to principle rather than corrupt influences, several factors are essential. First, most obvious, is a living wage that eliminates the most intense pressure for bribery. Second is a culture that values principled decision making. This is the intangible part that is difficult to assess. More formally, judicial independence is usually measured according to a set of criteria:7 1. 2. 3. 4.

method of appointment prospects and processes for advancement compensation protection review of performance

B

As Applied to International Courts

At the international level, methods of appointment have typically proceeded with the assumption of national affiliation, which could lead to the assumption that the judge will be more influenced by national preference than by principle. Prospects for advancement and protection for compensation have not been particularly problematic at the international level except to the extent that a judge might hope for special consideration back home in return for a favorable ruling on a case in which the home government has an interest. That leaves the system of review, which takes place primarily through the critiques of fellow judges in opinions and through the evaluations of commentators, a system that is familiar to Anglo-American commentators who routinely critique the decisions of their judiciary. The chart set out as an appendix to this paper looks at several factors that may be taken into consideration when analyzing judicial impartiality in the international sphere. This chart takes into consideration the nationalistic focus of international, regional, and hybrid courts. C

Examples of Judicial Bias

Several empirical studies have looked into judicial impartiality and national bias in international courts. A study conducted by Il Ro Suh in 1969 showed 7 See, e.g., International Association of Judicial Independence and World Peace (Mt. Scopus Standards), http://www.jiwp.org/#!mt-scopus-standards-2007-2012/c17lh.

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that judges on the icj voted with their own governments when they appeared before the court 82% of the time (permanent judges voted with their states 70% of the time while ad hoc judges voted with their states in 91% of cases).8 Suh’s findings were validated by a study conducted by Eric Posner and Miguel de Figueiredo in 2004 which found that icj judges sided with governments of their same nationality 88.9% of the time (permanent judges sided with their states 83.3% of the time while ad hoc judges voted with their home governments 90.5% of the time).9 While this data from the icj would suggest that international courts are plagued with national bias, a study of the echr conducted by Erik Voeten showed that the effects of nationalism on judicial impartiality were minimal.10 Thus, the icj may continue to provide the best examples of nationalism affecting judicial impartiality. The following are specific examples where icj judges have shown bias when finding in favor of their home nation’s government. 1 Nicaragua v. United States of America In 1986 the icj issued its opinion regarding a suit that had been brought by Nicaragua against the United States for assistance the latter provided to contras within Nicaragua. While a majority of the Court found in favor of Nicaragua, Judge Stephen Schwebel of the United States dissented against most of the clauses. Judge Schwebel repeated many of the same arguments that had been made by the United States before the Court in his dissent, stating that the United States had acted lawfully in its support of the contras as it was acting through collective self-defense on behalf of El Salvador.11 In his introduction, Judge Schwebel offered a scathing criticism of the majority decision, stating that: To say that I dissent from the Court’s Judgment is to understate the depth of my differences with it…in my view the Judgment misperceives and misconstrues essential facts—not so much the facts concerning the actions of the United States of which Nicaragua complains as the facts concerning the actions of Nicaragua of which the United States 8 9 10 11

Il Ro Suh, “Voting Behavior of National Judges in International Courts,” 63 Am. J. Int’l L. 224, 228 (1969). Eric A. Posner & Miguel de Figueiredo, “Is the International Court of Justice Politically Biased?” 18 (Chicago John M. Olin Law & Economics, Working Paper No. 234, 2004). Erik Voeten, “The Impartiality of International Judges: Evidence from the European Court of Human Rights,” 102 Am. Pol. Science Rev. 417, 430 (2008). Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 86 (June 27) (dissenting opinion of Judge Schwebel).

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complains. It misconceives and misapplies the law—not in all respects, on some of which the whole Court is agreed, but in paramount respects: particularly in its interpretation of what is an “armed attack” within the meaning of the United Nations Charter and customary international law; in its appearing to justify foreign intervention in furtherance of “the process of decolonization;” and in nearly all of its holdings as to which Party to this case has acted in violation of its international responsibilities and which, because it has acted defensively, has not.12 Judge Schwebel’s dissent illustrates a case where a judge clearly adopted and advocated the political and legal positions of his home nation. However, this case also illustrated an instance of bloc voting between close allies, with the United Kingdom and Japan both joining in with most of Judge Schwebel’s dissent. 2 Malaysia/Singapore In July of 2003, the governments of Malaysia and Singapore notified the icj that the nations had agreed to submit an application to the court to determine whether three groups of islands belonged to one nation or the other. As neither party had a permanent judge sitting on the bench, both nations were allowed to elect ad hoc judges for the purposes of these proceedings. Both nations claimed sovereignty over the disputed territory, but in a three-part decision the Court determined that sovereignty of some of the islands belonged to Singapore while Malaysia had claim to the others.13 The Malaysian judge voted against the clause recognizing Singapore’s claims, while the judge from Singapore voted against the clause recognizing Malaysia’s claims. This example of ad hoc judges showing national bias highlights the concern over impartiality of ad hoc judges, and in general, of international courts that place an emphasis upon nationalism in statutory framework. 3 Cambodia War Crimes Tribunal The Extraordinary Chambers in the Courts of Cambodia (eccc)14 was organized under agreement between the UN and Cambodia as an independent court using a mixture of foreign personnel embedded with Cambodian staff and judges. The special court is charged with investigating and prosecuting 12 13

Id. at ¶1. Case Concerning Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) 2008 I.C.J. 12 (May 23). 14 http://www.eccc.gov.kh/en.

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offenses committed during the Khmer Rouge regime under which as many as two million people were killed in the 1980’s. Two judges have now resigned citing interference from judges of the national government.15 They have claimed that the national judges have actively prevented impartial investigation of some of the most significant cases. III

The Proposed Solutions

Dannenbaum has proposed the elimination of national representation and in particular the abolition of ad hoc judges because both of these procedures reinforce the notion of nationalist partisanship. The icj addresses the issue this way: The right of an elected judge having the nationality of one of the parties in a case to sit in the case has not been seriously questioned by legal scholars. It is clear simply from the result of the votes taken by the Court and from the separate and dissenting opinions submitted that such judges have often voted in disaccord with the submissions of their own country. The institution of the judge ad hoc, on the other hand, has not received unanimous support. While the Inter-Allied Committee of 1943 argued that “[c]ountries will not in fact feel full confidence in the decision of the Court in a case in which they are concerned if the Court includes no judge of their own nationality, particularly if it includes a judge of the nationality of the other party”, certain members of the Sixth Committee of the General Assembly of the United Nations expressed the view, during the discussions between 1970 and 1974 on the role of the Court, “that the institution, which was a survival of the old arbitral procedures, was justified only by the novel character of the international judicial jurisdiction and would no doubt disappear as such jurisdiction became more firmly established”. Nevertheless, numerous writers take the view that it is useful for the Court to have participating in its deliberations a person more familiar with the views of one of the parties than the elected judges may sometimes be.16 15

16

“UN voices concern as second judge resigns from Cambodia genocide court,” UN News Centre, http://www.un.org/apps/news/story.asp?NewsID=41578&Cr=Cambodia&Cr1=# .UE-yJbJlSi0 (19 March 2012). “Judges ad hoc,” The Int’l Ct. of Justice, http://www.icj-cij.org/court/index.php?p1=1&p2= (last visited 9 September 2012).

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Dannenbaum goes on to point out other solutions that have been offered: Shelton, for example, argues for the formation of a professional association of international judges and echoes Reisman’s earlier call for a code of international judicial ethics. Abi-Saab advocates the appointment of judges by a professional body rather than a political assembly or council. Those seeking to improve international judging should follow these examples by focusing on augmenting the professionalism of the international judiciary and implementing independence-bolstering mechanisms. In fact most of these suggestions have already been implemented. But the most important element in judicial impartiality is creation of a culture of judging, a culture that emphasizes principle over preference and calls judges to task when they fail to conform to the culture. The proposed Standards promulgated by the International Association of Judicial Independence and World Peace (the so-called Mt. Scopus Standards) address many aspects of the independence of International Judges.17 In particular, those Standards call for judges to maintain their judicial role without becoming advocates of their home nation.18 Although the Standards allow for choosing judges on the basis of geographic affiliation, the professional qualifications should be the dominant factor in selection.19 In addition, the Standards generally repeat all the usual limitations on judges, such as recusal from cases in which they have prior interest or experience, protection for tenure and freedom of expression, and general mandates for impartiality. The Mt. Scopus Standards, however, do allow for the appointment of ad hoc judges from nations not otherwise represented on the tribunal. The Standards merely insist that the ad hoc judge comply with the ordinary rules of impartiality.20 It would certainly be possible for the Standards to adopt the 17 18

19

20

International Association of Judicial Independence and World Peace (Mt. Scopus Standards), http://www.jiwp.org/#!mt-scopus-standards-2007-2012/c17lh. 9.5: All Judges of international courts and tribunals shall adhere to the principle that judges who are nationals of a member state of the organisation establishing the court or tribunal when exercising judicial discretion and function shall engage in fair and independent adjudication of the case and by no means in representation of the member state. 10.2: 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. 26.1: An ad hoc judge in an international court or tribunal must act conscientiously and independently in the adjudication of the case to which that judge was assigned to sit. 26.2: The restrictions and provisions applicable to full-time international judges regarding past

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Dannenbaum position of eliminating national representation, particularly in the role of ad hoc judges. The International Commission of Jurists seems the obvious place to turn for support and promotion of judicial impartiality. The icj publications thus far have concentrated on human rights and the protection of judges within their national systems. This would be an excellent organization to promulgate an international code of ethics for judges. The American Bar Association Model Code of Judicial Conduct is based on four simple propositions: CANON 1 A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. CANON 2 A judge shall perform the duties of judicial office impartially, competently, and diligently. CANON 3 A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office. CANON 4 A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the integrity, or impartiality of the judiciary. These four canons are then developed further with “rules” and “commentary” regarding each topic. For our purposes, the most important rule regarding impartiality is probably the one dealing with external influences: RULE 2.4 External Influences on Judicial Conduct (A) A judge shall not be swayed by public clamor or fear of criticism. (B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment. (C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.

links, extra-judicial activities, post-service limitations, and security of tenure shall not apply to ad hoc judges.

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In the Soviet system, “telephone justice” meant that the judge merely handed down decisions as they were dictated by a party spokesperson (apparatchik). There are some indications that little has changed in the anarchical days of post-Soviet privatization. Long before the sentence was handed down in the “Pussy Riot” trial, the media had already learned that the sentence would be two years—the media reports did not know whether this sentence was coming from the Metropolitan of the Orthodox Church or from the government, but the message had been received and was implemented. Even President Medvedev during his term acknowledged the lack of judicial independence in Russia: “As before, we must take all necessary means to strengthen the independence of judges,” Medvedev said, speaking at a conference on developing the judicial system. “It would seem that existing legislation should provide for it. However, it goes without saying that pressure and influence occurs, that administrative leverage is applied, that direct bribery is often used.”21 And the Constitutional Court of Russia has been at the forefront of critiques over judicial independence: Two justices on Russia’s Constitutional Court renounced their positions Wednesday, on the recommendations of their fellow justices, after publicly criticizing the nation’s lack of judicial independence. Senior justice Anatoly Kononov, whose term of office was to expire in 2017, will resign from the Constitutional Court at the end of this month. Justice Vladimir Yaroslavtsev will remain on the court, but has stepped down from his position on the country’s Council of Judges. In August, Yaroslavtsev gave an interview to Spanish newspaper El Pais, in which he criticized Russia’s judicial system, citing its lack of independence and corruption. Yaroslavtsev claimed the legislative branch is “paralyzed” and called the government “authoritarian.” Kononov, who has spoken-out about judiciary problems in the past, publicly defended Yaroslavtsev’s comments. In October, both justices were accused of undermining judicial authority by breaching the Judges’ Ethics Code and the Law on the Status of Judges.22 21 22

“Medvedev: No Independent Judiciary in Russia,” The Other Russia (15 July 2008), http:// www.theotherrussia.org/2008/07/15/medvedev-no-independent-judiciary-in-russia/. “Russia judges resign after criticizing lack of judicial independence,” Jurist (3 December 2009), http://jurist.org/paperchase/2009/12/russia-judges-resign-after-criticizing.php.

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But these are internal problems of a nation struggling to enter the Rule of Law, a phenomenon being played out in any number of places today. What can we learn from these experiences about the problem of impartiality in supranational courts? I think the principal lesson is that pressure on judges will exist, and it is up to the legal academy to find the mechanisms of protecting judicial independence. A central component of creating a culture of judging is critique by the academy. Courageous Russian law faculty are speaking out on the issues and it is up to the rest of us to support them. Again, that is within the internal affairs of Russia but a matter of concern to the entire Rule of Law community. With regard to international courts, it is the commentary of people such as those in this room who can let both judges and their home politicians know that acting from national preference is not judging. Perhaps a more formal complaint system within the icj would be appropriate. Reprimands and censures are very effective at the local level in the U.S. where state judicial commissions routinely review the decisions of judges for bias or response to external influence.23 • SUMMARY The International Commission of Jurists has gone a long way in developing a culture of judging. A more formal “Code of Judicial Ethics” would be a welcome additional step. • Academic and professional commentators need to take observation of international courts more seriously and apply universal standards of impartiality to critique of judicial decisions. • Perhaps the icj should create a formal complaint process to address charges of nationalism within international tribunals. 23

See, e.g., In re Inquiry Concerning a Judge (Young), 1999 UT 81 (1999) (public reprimand for ex parte communication).

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Court

Number of Members/Method of Appointment

Term Limits

Compensation

International Court of Justice

15 judges elected by the UN General Assembly and Security Council. A candidate must receive an absolute majority of the votes in both bodies. All States parties to the Statute of the Court have the right to propose candidates. A party which does not have a judge of its nationality on the Bench may choose a person to sit as judge ad hoc in that specific case.

9-year term, 5 members elected every 3 years

fixed annual salary (US$166,596) plus expenses, pension at 50% of the annual base salary

International Criminal Court

18 judges elected by the Assembly of States Parties. The Assembly of States Parties is required to “take into account the need for the representation of the principal legal systems of the world, equitable geographical representation and a fair representation of female and male judges. They shall take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women and children.”

9-year term

Fixed annual salary of $180,000

International Criminal Tribunal for the former Yugoslav Republic

16 permanent judges and 9 ad litem judges. UN member and observer states each submit up to two nominees of different nationalities; Security Council selects from 28 to 42 nominees; General Assembly then elects 14 judges from that list.

4-year term—eligible for re-election.

Fixed annual salary consisting of a base salary (US$166,596) plus expenses.

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Review & Removal

Focus on National Representation

No Member of the Court can be dismissed unless, in the unanimous opinion of the other Members, he/she no longer fulfills the required conditions. This has in fact never happened.

The Court may not include more than one national of the same State and must reflect regions as follows: Africa 3, Latin America and the Caribbean 2, Asia 3, Western Europe and other States 5, Eastern Europe 2. Although there is no entitlement to membership on the part of any country, the Court has always included judges from the permanent members of the Security Council.

Assignment of judges to Divisions is made on the basis of the nature of the functions each Division performs and the qualifications and experience of the judge. A judge may be disqualified from “any case in which his or her impartiality might reasonably be doubted on any ground,” and a judge may be removed from office if he or she “is found to have committed serious misconduct or a serious breach of his or her duties” or is unable to exercise his or her functions. Disqualification of a judge from a particular case is decided by an absolute majority of the other judges, while removal from office requires a two-thirds majority of the 18 judges sitting on the icc and a two-thirds majority of the Assembly.

All judges must be nationals to parties of the Rome Statute, and no two judges may be nationals of the same state. Each regional group of the United Nations has at least two judges. It is possible that a judge may be recessed from overseeing a case if it is determined that there may be a conflict of national interests.

A Judge may not sit on a trial or appeal in any case in which the Judge has a personal interest or concerning which the Judge has or has had any association which might affect his or her impartiality.

A state cannot propose two candidates of the same nationality for the position of permanent judge. The nominations take into consideration the adequate representation of the principal legal systems of the world.

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Term Limits

Compensation

4-year terms—eligible for re-election

Annual salary consisting of a base salary (US $166,596) and post adjustment, with a special supplementary allowance of US $15,000 for the President.

Each Trial Chamber is composed of three permanent judges and a maximum of six ad litem judges. Ad litem judges are appointed by the UN Secretary-General at the request of the President of the Tribunal to sit on one or more specific trials. Three judges are assigned to hear each case, and at least one judge per case must be a permanent judge. Trial Chamber may be divided into sections of three judges each, composed of both permanent and ad litem judges. The Appeals Chamber consists of seven permanent Judges, five of whom are permanent judges of the icty and two of whom are permanent judges of the International Criminal Tribunal for Rwanda (ictr). These seven judges also constitute the Appeals Chamber of the ictr. Each appeal is heard and decided by a bench of five judges of the Appeals Chamber. International Criminal Tribunal for Rwanda

16 judges in four chambers (3 trials and 1 appeal) plus 9 ad litem judges—11 of the permanent judges elected by the General Assembly from a list submitted by the Security Council Appeals Chamber consists of 5 permanent judges of the ictr and 2 permanent judges of the icty. These seven judges also constitute the Appeals Chamber of the icty. Each appeal is heard and decided by a bench of five judges of the Appeals Chamber.

Judicial Impartiality in International Courts Review & Removal

Focus on National Representation

On a motion for recusal, the President may appoint a panel of three Judges drawn from other Chambers to report to him its decision on the merits of the application. If the decision is to uphold the application, the President will assign another Judge to sit in the place of the Judge in question.

same as icty

same as icty

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Court

Number of Members/Method of Appointment

Term Limits

Compensation

European Court of Justice

27 Judges (one per member country) and eight Advocates General. The Judges and Advocates General are appointed by common accord of the governments of the Member States after consultation of a panel responsible for giving an opinion on prospective candidates’ suitability to perform the duties concerned. The Advocates General assist the Court. They are responsible for presenting, with complete impartiality and independence, an “opinion” in the cases assigned to them. The Court may sit as a full court, in a Grand Chamber of 13 Judges or in Chambers of three or five Judges.

6 year term renewable— half of the court re-elected every three years.

Approximately £215,000.

European Court of Human Rights

The number of full-time judges sitting in the echr is equal to that of the contracting states to the European Convention on Human Rights (currently 47 members). Judges are elected by majority vote in the Parliamentary Assembly of the Council of Europe from the three candidates each contracting state nominates. In some situations, ad hoc judges may be appointed by a government involved in a case that does not have representation on the bench.

Nonrenewable 9-year term.

Annual salary of €208,776

InterAmerican Court for Human Rights

7 judges elected by the oas General Assembly, from a list of candidates nominated by member States.

6 year term; may be reelected only once.

Information unavailable.

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Review & Removal

Focus on National Representation

Removal by the unanimous opinion of the Judges and Advocates General of the Court of Justice, if judge no longer fulfills the requisite conditions or meets the obligations arising from his office.

Each member state represented by one national on the ecj.

Judges not allowed to participate in activity that may compromise the echr’s independence. Judges can only be dismissed from office if the other judges decide by a two-thirds majority that the judge has ceased to fulfill the required conditions.

National judges cannot sit in a single-judge formation. Court always includes the national judge when it hears cases as a seven-judge Chamber or a seventeen-judge Grand Chamber.

The echr has adopted a Resolution on Judicial Ethics that applies to all judges of the echr.

Ad hoc judges of the government’s nationality may also be appointed.

oas General Assembly has disciplinary authority over its judges, but may exercise that authority only at the request of the Court itself. The oas has passed disciplinary measures for all of its judges.

States are ensured judicial national representation on cases heard before the iachr. Ad hoc judges may be appointed.

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Court

Number of Members/Method of Appointment

Term Limits

Compensation

Special Court for Sierra Leone

The statute of the court indicated that the scsl would consist of eight to eleven judges. Three would serve in the trial chamber (of which one would be appointed by the Sierra Leonean government and two by the UN Secretary-General) and five would serve in the appeals chamber (of which two would be appointed by the Sierra Leonean government and three by the UN Secretary-General). There are currently twelve judges, of which seven are Trial Judges (five UN appointed— including one alternate—and two nominated by the Sierra Leone government). The remaining five are Appeals Judges, three of whom were appointed by the UN and two nominated by the Sierra Leone government.

Judges are appointed for a term of three years. They can be re-appointed.

Information unavailable.

Extraordinary Chambers for the Courts of Cambodia

Under the agreement between Cambodia and the UN, the eccc is to be composed of both local and international judges. Investigations are performed by the Investigating Judges, who will conduct investigations and submit a closing order stating whether or not the case will proceed to trial. Both the Pre-Trial Chamber and the Trial Chamber are composed of three Cambodian and two international judges, while a Supreme Court Chamber is made up of four Cambodian judges and three international judges.

All judges will serve out their terms until the eccc has completed its work.

International judges receive approximately $186,904 per year, while national judges receive approximately $68,052 per year.

Judicial Impartiality in International Courts Review & Removal

The guarantee for an independent and impartial tribunal is stipulated in Article 13(1) of the scsl Statute. In addition, Rule 15(A) and (B) of the Court’s Rules provides for the disqualification of scsl judges if they lack judicial impartiality

A judge may be disqualified if there is an undue conflict of interest or if it is determined that the judge has lost impartiality. Such proceedings are submitted to a Pre-Trial Chamber. The Chamber Judges of the judge in question will then vote on the matter.

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Focus on National Representation

No two judges may be nationals of the same State. Part of the tribunal requires that nationals of Sierra Leone comprise a portion of the court. There is no reference to nationality regarding judges to be appointed by the United Nations.

Cambodians have a majority of representation in judicial proceedings. The tribunal in Cambodia has been faced with accusations of corruption, political interference, and a lack of truly independent judiciary. International judges have been rejected by the Cambodian government for wanting to pursue Cases 003 and 004, and two international judges have resigned over political interference and a lack of judicial independence on the part of their Cambodian counterparts.

338 Court

McCormack Number of Members/Method of Appointment

All international judges have been appointed by the Supreme Council of the Magistracy of Cambodia from a list of nominees submitted by the Secretary General of the United Nations. There are also Reserve judges who may be called upon to serve in the event of an emergency. Pre-trial investigations are reviewed by both Cambodian and international officials.

Term Limits

Compensation

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339

Chapter TWENTY-THREE

Arbitral Awards and Errors of English Law

Refining the Law-Making Function of the Judicial Appeal System Neil Andrews*

I Introduction Section 69 of the Arbitration Act 1996 confers power to challenge the award before the Commercial Court on the basis of an error of English law.1 By contrast with English law, in most legal systems, and soft-law provisions, judicial review of arbitral awards is not possible by reference to alleged errors of substantive law.2 The 2006 report on the Arbitration Act 1996 states that a majority of respondents considered that appeals from arbitral tribunals to the High Court on points of English law should be retained.3 The 2006 report also rejected the proposition that the restrictive criteria for permission to appeal, specified at Section 69 of the Arbitration Act 1996, might be ‘starving English Contract Law of nourishment’ and ‘hindering its development’.4 At the Tokyo arbitration symposium (19 June 2012), it was suggested, however, that an annual average of 12 out of 50 grants of permission is * Professor of Civil Justice and Private Law, Faculty of Law, University of Cambridge; Fellow of Clare College, Cambridge; Bencher of Middle Temple, 2007; Member of the American Law Institute; Vice-President, International Association of Procedural Law. 1 s. 69(2)(3), Arbitration Act 1996; there are many cases on this provision, for example, Flaux J. in ASM Shipping Ltd of India v. TTMI Ltd of England, (‘The Amer Energy’) [2009] 1 Lloyd’s Rep. 293, at [17] to [19]; the report by V.V. Veeder and A. Sander (Lord Mance’s Advisory Committee on Section 69) (2009): see end of this note) notes (Schedule 8, p. 8 of the report) that the Commercial Court, in London, considered 36 applications in 2006, and granted leave in 9; in 2007, 58, leave granted in 13; in 2008, 57, leave granted in 14; disclosing an average of 50 a year, with permission granted in 12; report available at: (http://www.lmaa.org.uk/uploads/ documents/First%20Interim%20Report%20Mance%2024%2005%202009.pdf); for further comment on s. 69, V.V. Veeder, ‘On Reforming the English Arbitration Act 1996?’, in J. Lowry and L. Mistelis, Commercial Law: Perspectives and Practice (LexisNexis, 2006), 243, at 14.23 et seq. 2 A. Redfern and M. Hunter, International Arbitration (N. Blackaby and C. Partasides, eds.) (5th edn., Oxford University Press, 2009), 10.60 ff. 3 ‘Report (2006) on the Arbitration Act 1996’, at [66] to [69] (www.idrc.co.uk/aa96survey/ Report_on_Arbitration_Act_1996.pdf). 4 ‘Report (2006) on the Arbitration Act 1996’, ibid., at [70] to [75]. © koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_024

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‘high’ (for these figures, see this note).5 High Court review under Section 69 is regarded by some foreign lawyers as a quite aberrant feature of English arbitration It is a major contrast with the Model Law system under which appeal to a national court is unavailable from an arbitral award on a point of substantive law (of course the Model Law is not applicable in England).6 But Veeder staunchly defends Section 69, suggesting: ‘It remains unthinkable that the symbiotic link should be broken between commercial arbitration, the development of English law and the English Commercial Court’.7 In fact Section 69 is one of three possible grounds of challenge. The triad consists of these elements: (A) lack of jurisdiction (Section  67), or (B) the 5 Figures provided in the report by V.V. Veeder and A. Sander (2009), Schedule A, p. 8; report available at: (Lord Mance’s Advisory Committee on Section  69) (http://www.lmaa.org.uk/ uploads/documents/First%20Interim%20Report%20Mance%2024%2005%202009.pdf). 6 Article 34(2), UNCITRAL Model Law on International Commercial Arbitration 1985 (as amended in 2006) states: An arbitral award may be set aside by the [relevant nominated national] court specified in article 6 only if: (a) the party making the application furnishes proof that: (i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of this State; or (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law; or (b) the court finds that: (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or (ii) the award is in conflict with the public policy of this State. 7 V.V. Veeder, ‘On Reforming the English Arbitration Act 1996?’, in J. Lowry and L. Mistelis, Commercial Law: Perspectives and Practice (LexisNexis, 2006), 243, at 14.23; he notes that s. 69(2)(a) already permits parties to increase this flow of cases by positively nominating, in their arbitration agreements, that a reference on a point of English law should be available to the High Court by way of appeal from an award; whereupon the ‘filter’ of s. 69(3), 1996 Act ceases to apply; and such references can thus be ‘received’ without more by the court. But, with respect, such positive decisions to ‘opt in’ are not common; and their inclusion seems low down on the list of ‘things to note’ when commercial contracts are finalised by (for the most part) non-contentious legal advisors.

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assertion that the arbitral panel has been guilty of ‘serious irregularity affecting the tribunal, the proceedings or the award’ (Section 68), or (C) on the basis of an error of (English) law.8 Ground (C), under Section 69, can be excluded by agreement. But grounds (A) and (B) are mandatory: they cannot be excluded by party agreement. All three bases of challenge (Sections 67 to 69) are subject to the need to exhaust other routes for obtaining relief,9 for example by asking the tribunal to 8 9

s. 69(2)(3), Arbitration Act 1996. s. 70(2), Arbitration Act 1996, states that an application or appeal under ss 67, 68, 69 (jurisdiction, serious misconduct, error of English law) ‘may not be brought if the applicant or appellant has not first exhausted (a) any available arbitral process of appeal or review, and (b) any available recourse under s. 57 (correction of award or additional award’. And the court’s power under s. 79(1) to extend the time-limit is not to be exercised ‘unless [the court] is satisfied (a) that any available recourse to the tribunal, or to any arbitral or other institution or person vested by the parties with power in that regard, has first been exhausted, and (b) that a substantial injustice would otherwise be done’: s. 79(3). Therefore, it might not be possible to gain such an extension where a party has failed to pursue the ‘correction’ path under s. 57(3)(a), on the basis that there has been a ‘clerical mistake or error arising from an accidental slip or omission’ or, again under s. 57(3)(a), to ‘clarify or remove any ambiguity in the award’ (on s. 57(3)(a), see Torch Offshore LLC v. Cable Shipping Inc [2004] EWHC 787 (Comm), [2004] 2 All E.R. (Comm) 365; [2004] 2 Lloyd’s Rep. 446; [2004] C.L.C. 433, Cooke J., at [28]); or the applicant for an extension of time under s. 79(1) might be precluded from seeking such an extension because that party has failed to apply for an ‘additional award’ under s. 57(3)(b) ‘in respect of any claim… which was presented to the tribunal but was not dealt with in the award’ (on which Buyuk Camlica Shipping Trading and Industry Co Inc v. Progress Bulk Carriers Ltd [2010] EWHC 442 (Comm), [2011] Bus. L.R. D99, at [46], per Gavin Kealey Q.C (Deputy High Ct. judge)). Per Cooke J. in Torch Offshore LLC v. Cable Shipping Inc [2004] EWHC 787 (Comm), [2004] 2 All E.R. (Comm) 365; [2004] 2 Lloyd’s Rep. 446; [2004] C.L.C. 433, at [28]: ‘It seems to me that Section 57(3)(a) [see preceding note for its contents] can be used to request further reasons from the arbitrator or reasons where none exist. The policy which underlies the Act is one of enabling the arbitral process to correct itself where possible, without the intervention of the Court. Torch contended that it was clear that the arbitrator had not decided the issue and that therefore there was no ambiguity in the award which required clarification, but the very existence of a genuine dispute on this question militates against that argument. If there was unarguably a clear failure to deal with an issue, it could be said that there was no ambiguity in the award, but…an award which contains inadequate rationale or incomplete reasons for a decision is likely to be ambiguous or need clarification. There was therefore room for an application by Torch under Section 57…so that the time limit of 28 days ( for which Section 57(4) provides) applied. In these circumstances Torch had available recourse under Section  57, which had not been exhausted and Section  70(2) therefore presents an insurmountable bar to Torch’s Section 68 application’.

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correct or clarify its award.10 There is a 28 day period11 for seeking such corrections, commencing on the date of the award.12 But this period can be extended by the court.13 In Torch Offshore LLC v. Cable Shipping Inc (2004)14 Cooke J held that preclusion will occur if a party has not sought from the tribunal a ‘correction’ where the reasoning on an issue is defective. In the Buyuk case (2010)15 Gavin Kealey QC, sitting as a Deputy High Court judge, held that a distinction must be drawn between (a) a tribunal’s complete failure to deal with an issue presented to it by the parties (such a failure can give rise to a challenge under Section  68, namely a ‘serious irregularity’, if the failure has produced ‘serious injustice’) and (b) a confusing or incomplete treatment in the award of an issue. As for 10

11

12

13 14 15

Omnibridge Consulting Ltd v. Clearsprings (Management) Ltd [2004] EWHC 2276 (Comm), at [62] (Siberry Q.C., deputy High Court judge): where a party has ‘failed to exhaust its available recourse under Section 57. Section 70(2) therefore presents an insurmountable bar to its Section 68 application’. ss 70(1),(2) of the Arbitration Act 1996 state: (1) The following provisions apply to an application or appeal under Section 67, 68 or 69. (2) An application or appeal may not be brought if the applicant or appellant has not first exhausted— (a) any available arbitral process of appeal or review, and (b) any available recourse under Section 57 (correction of award or additional award). An application for correction of the award, or the giving of an additional award, under s. 57, Arbitration Act 1996, must be made ‘within 28 days of the date of the award or such longer period as the parties may agree’ (s. 57(4), Arbitration Act 1996); an application or appeal under ss. 67, 68, 69 (jurisdiction, serious misconduct, error of English law) must be made ‘within 28 days of the date of the award or, if there has been any arbitral process of appeal or review, of the date when the applicant or appellant was notified of the result of that process’ (s. 70(3), Arbitration Act 1996). Under the current legislation, the Arbitration Act 1996, the date of the award is that stated by the arbitrators (s. 52(5), Arbitration Act 1996); that date can be controlled by the arbitrators (s. 54(1): ‘Unless otherwise agreed by the parties, the tribunal may decide what is to be taken to be the date on which the award was made’); unless the arbitrators fix such a date, the date will be that on which the arbitrator, or the last arbitrator (where there is more than one) signed the award (s. 54(2), Arbitration Act 1996); notification of the award to the parties is covered by s. 55, Arbitration Act 1996; the tribunal can withhold delivery of the award until there has been full payment of the tribunal’s fees and expenses (s. 56, Arbitration Act 1996). The court has power to extend the 28 day time limit (see preceding note), under the general power contained in s. 79(1), Arbitration Act 1996. [2004] EWHC 787 (Comm); [2004] 2 All E.R. (Comm) 365; [2004] 2 Lloyd’s Rep. 446, at[28]. Buyuk Camlica Shipping Trading and Industry Co Inc v. Progress Bulk Carriers Ltd [2010] EHWC 442 (Comm), [2011] Bus. L.R. D99, at [42] and [43], per Gavin Kealey Q.C (Deputy High Ct. judge).

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(b), the same judge noted a sub-division between instances (i) where the award does not make clear whether the tribunal has postponed its decision on a particular issue and (ii) where the award is obscure on how it has been decided:16 ‘There might be some cases where there is an element of real doubt as to whether or not an issue has been dealt with [in the award]…[But this] would normally arise in cases where there is doubt as to whether a tribunal has left over for future determination some issue or claim in the reference (in which case Section 57(3)(b) might also be applicable), or where a tribunal has come to a decision but there is some inadequacy or absence of analysis in its reasoning that leaves it unclear17 whether and, if so, how it has dealt with certain issues in order to arrive at its decision.’ II

The Gateway under Section 69

Permission to appeal under Sections 67 to 69 from the High Court (for qualifications concerning other courts, see the end of this paragraph) to the Court of Appeal can only be given by the High Court itself,18 unless (i) the High Court decision was made outside the court’s jurisdiction,19 or (ii) consideration of the issue of permission involved an unfair process,20 or (iii) there is a 16 Ibid., at [43]. 17 Ibid., noting as an example of this context, Torch Offshore LLC v. Cable Shipping Inc [2004] EWHC 787 (Comm), [2004] 2 All E.R. (Comm) 365; [2004] 2 Lloyd’s Rep. 446. 18 Cetelem S.A. v. Roust Holdings Ltd [2005] EWCA Civ 618, [2005] 1 W.L.R. 3555, at [20] noting that: ‘This court has considered the meaning of “the court” in equivalent sub-sections on three previous occasions and has held that it means the court of first instance and not the Court of Appeal. They are Henry Boot Construction (U.K.) Ltd v. Malmaison Hotel (Manchester) Ltd [2001] Q.B. 388, CA [on s. 69(8)], Athletic Union of Constaninople v. National Basketball Association (No. 2) [2002] EWCA Civ 830, [2002] 1  W.L.R. 2863 [on s. 67(3)] and Virdee v. Virdi [2003] EWCA Civ 41 [on s. 18(5)]’. 19 In Cetelem, ibid., it was held that a decision made by the High Court under s. 44(3) which was made outside the court’s jurisdiction was not subject to s. 44(7) and so the Court of Appeal could entertain an appeal. 20 CGU International Insurance plc v. Astra Zeneca Insurance Co. Ltd [2006] EWCA Civ 1340, [2007] Bus. L.R. 162; [2007] 1 All E.R. (Comm) 501; [2007] 1 Lloyd’s Rep. 142; [2007] C.P. Rep. 4; [2006] 2C.L.C. 441; [2006] H.R.L.R. 43, at [98], per Rix L.J., concluding his long survey of this issue: ‘I can find in none of these submissions any cause for thinking that the judge’s refusal of leave to appeal was arbitrary or unfair; or was the product of a failure of intellectual engagement with the arguments put before him; or amounted actually or metaphorically to the absence of a decision on the issue; or even, for all that I have rejected this as a

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preliminary issue whether Section 69 applies at all or whether the parties have excluded it.21 The reason for exception (iii) is this: ‘there is a distinction between those cases where the court is assisting or overseeing the arbitration process and the cases where the question is whether the jurisdiction of the court has been excluded’.22 The Commercial Court is the main court appointed by statute to oversee issues arising under the Arbitration Act 1996. But some arbitration matters will come before the Mercantile Courts, and the Technology and Construction Court,23 or the Chancery Division,24 and county courts.25 Unless both parties agree to an appeal,26 the High Court, acting as its own ‘gate-keeper’, is required to apply specified restrictive criteria, in effect a possible test of unfairness, was perverse; or, for this is ultimately the test, amounted to such unfairness in the process as to amount to a breach of article 6 of the Convention’. 21 Sukuman Ltd v. Commonwealth Secretariat [2007] EWCA Civ 243, [2007] Bus. L.R. 1075; [2007] 3 All E.R. 342; [2007] 2 All E.R. (Comm) 23; [2007] 2 Lloyd’s Rep. 87; [2007] 1C.L.C. 282 (held that an exclusion clause, accompanying an arbitration agreement, had been validly incorporated into the parties’ agreement; the resulting arbitration award could not be challenged under s. 69, Arbitration Act, because the parties had in writing excluded that possibility; such exclusion was not contrary to Article 6 of the European Convention on Human Rights). 22 Ibid., at [30]. 23 (1) C.P.R. 62.1(3): Part 58 (Commercial Court) applies to arbitration claims in the Commercial Court, Part 59 (Mercantile Court) applies to arbitration claims in the Mercantile Court and Part 60 (Technology and Construction Court claims) applies to arbitration claims in the Technology and Construction Court, except where this Part provides otherwise; (2) P.D. (61), para. 2.3(2); (3) Section O, The Admiralty and Commercial Courts Guide (9th edn., 2011); (4) High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996/3215. 24 P.D. (61), para. 2.3(2): matters ‘relating to a landlord and tenant or partnership dispute must be issued in the Chancery Division of the High Court’. 25 High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996/3215. 26 Walker J. in Royal & Sun Alliance Insurance plc v. BAE Systems (Operations) Ltd [2008] EWHC 743 (Comm), [2008] 1 Lloyd’s Rep. 712; [2008] 1C.L.C. 711; [2008] Bus. L.R. D127, at [29], acknowledging that the parties can opt-in by agreement so as to create a contractual right to a s. 69 appeal on a point of English law; by contrast, the court has control of the determination whether to accede to an application under s. 45 (preliminary points of English law); and so s. 45 contrasts with the parallel provision, s. 69; Walker J. said, ibid.: ‘Section 69(2) makes it clear that there will be no need for leave of the court if there is an agreement by all parties to the arbitral proceedings that an appeal on law may be brought. It is not a question of contracting out of the need for leave. The approach taken in Section 69 is to introduce a requirement for leave only in those cases where the parties have not positively agreed that there may be an appeal on law’. The relevant clause in that case stated, ibid., at [22]: ‘Any party to the Dispute may appeal to the court on a question of law arising out of an award made in the arbitral proceedings’. (This case is also noted in the report by

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statutory ‘filter’, to determine whether to grant permission for such an appeal on a point of English law:27 Leave to appeal shall be given only if the court is satisfied—(a) that the determination of the question will substantially affect the rights of one or more of the parties, (b) that the question is one which the tribunal was asked to determine, (c) that, on the basis of the findings of fact in the award—(i) the decision of the tribunal on the question is obviously wrong, or (ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and (d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question. Commenting generally on that appeal process under Section 69 of the 1969 Act—concerning appeals to the High Court from arbitration awards on points of pure English law—Rix LJ said in CGU International Insurance plc v. Astra Zeneca Insurance Co Ltd (2006):28 ‘Section 69…enacts a concern, in the interests of party autonomy, privacy and finality, that such awards should not be readily transferred to the courts for appellate review. Therefore, an appeal to the first instance court can only be brought with leave… If leave to appeal to the court is refused then an appeal to the Court of Appeal from that refusal can only be granted by the first instance court, unless that court itself gives leave to appeal from its refusal of leave.’29

27 28

29

V.V. Veeder and A. Sander (2009), at [13] and [14]; report (Lord Mance’s Advisory Committee on Section  69) available: (http://www.lmaa.org.uk/uploads/documents/ First%20Interim%20Report%20Mance%2024%2005%202009.pdf). s. 69(3), Arbitration Act 1996. [2006] EWCA Civ 1340, [2007] Bus. L.R. 162; [2007] 1 All E.R. (Comm) 501; [2007] 1 Lloyd’s Rep. 142; [2007] C.P. Rep. 4; [2006] 2C.L.C. 441; [2006] HRLR 43, at [3], per Rix L.J. This Delphic last sentence seems to mean: (i) the High Court can grant permission to appeal to the Court of Appeal from its decision not to grant permission for the arbitration award to be proceed on appeal to the High Court; or (ii) the High Court can grant permission to appeal to the Court of Appeal from its refusal of permission to appeal from its refusal to grant permission for the case to proceed to the Court of Appeal. Situation (ii) is analytically distinct, at least to the logicians of appellate practice.

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Court of Appeal Closed Off Unless High Court Judge Grants Permission: Permission to appeal under Section 69 from the High Court to the Court of Appeal can only be given by the High Court itself. Thus Section 69(6) states that: The leave of the court is required for any appeal from a decision of the court under this section to grant or refuse leave to appeal.30 That restriction applies equally to (i) a refusal to grant permission for an appeal to the High Court (or to the grant of such permission) and (ii) to the refusal (or grant) of permission to appeal from a decision made after the High Court, having granted permission at stage (i), has heard an appeal under Section 69. But see the next paragraph for the qualification based on the Court of Appeal’s ‘Residual Jurisdiction’). ‘The Residual Jurisdiction’ of the Court of Appeal: In North Range Shipping Ltd v. Seatrans Shipping Corporation (2002)31 the Court of Appeal said that civil judges, even when performing such instinctive assessments as the decision whether to grant permission to appeal, must respect minimal requirements of ‘reasoning’. And so the High Court judge in the present context must indicate the essence of the judge’s reasons for refusing permission.32 This ‘last ditch’ 30

31 32

Cetelem S.A. v. Roust Holdings Ltd [2005] EWCA Civ 618, [2005] 1 W.L.R. 3555, at [20] noting that: ‘This court has considered the meaning of “the court” in equivalent sub-sections on three previous occasions and has held that it means the court of first instance and not the Court of Appeal. They are Henry Boot Construction (U.K.) Ltd v. Malmaison Hotel (Manchester) Ltd [2001] Q.B. 388, C.A. [on s. 69(8)], Athletic Union of Constaninople v. National Basketball Association (No 2) [2002] EWCA Civ 830, [2002] 1 W.L.R. 2863 [on s. 67(3)] and Virdee v. Virdi [2003] EWCA Civ 41 [on s. 18(5)]’. But in the Cetelem case itself, concerning s. 44(3) and 44(7), it was held that a decision made by the High Court under s. 44(3) which was made outside the court’s jurisdiction was not subject to s. 44(7) and so the Court of Appeal could entertain an appeal. [2002] 1 W.L.R. 2397, CA, at [21] and [22]. R. (on the application of Medical Justice) v. Secretary of State for the Home Department [2011] EWCA Civ 269, [2011] 1 W.L.R. 2852, per Tuckey L.J., giving the judgment of the court: ‘At the very least we think an unsuccessful applicant for leave should be told which of those tests he has failed. This accords with what David Steel J. did in Mousaka Inc v. Golden Seagull Maritime Inc [2002] 1 W.L.R. 395 and appears to be the current practice of commercial judges. But does the judge need to go further and explain in every case why the relevant threshold test has been failed? We think the answer to this question is “No”. If the question is not one of law, does not substantially affect the rights of one or more of the parties or is not one which the tribunal was asked to determine, an adequate reason for the judge’s decision will in almost all cases have been given simply by identifying the test or tests which the applicant has failed without the need to say more. The same applies we think to the question of general public importance. However, when one gets to whether the tribunal’s decision was obviously wrong or not open to serious doubt, we do not think that it is possible to give an unqualified answer to the question we have posed. It may be enough simply to refer to the statutory test,

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opportunity to test the procedural integrity of the judge’s decision has become known as the ‘residual jurisdiction’33 of the Court of Appeal to examine the High Court’s decisions in this context. The Residual Jurisdiction Encompasses a General Need for Procedural Rectitude: Rix LJ in CGU International Insurance plc v. Astra Zeneca Insurance Co Ltd (2006) noted that the North Range case is concerned not just (as on its facts) with the allegation that the High Court judge’s decision is procedurally flawed because it discloses no adequate reasoning (although that reasoning need only be cursory), but that the process whereby that decision was made was procedurally unjust:34 ‘If, as is accepted, there is a residual jurisdiction in this court to set aside a judge’s decision for misconduct then there can be no reason in principle why the same relief should not be available in the case of unfairness. Each is directed at the integrity of the decision-making process or the decision-maker, which the courts must be vigilant to protect, and does not directly involve an attack on the decision itself.’ The Residual Jurisdiction and the High Court Judge’s Refusal to Grant Permis­ sion  from his Substantive Hearing of an Appeal under Section  69: If the High Court judge has granted permission to examine the arbitration award under Section  69, and has made a substantive decision, but the High Court judge then refuses (or perhaps grants) permission under Section 69(8) for a further appeal to the Court of Appeal, the latter court has held that the appellate court can intervene only if there is a breach of fairness in this ‘permission’ process. This involves the Court of Appeal’s ‘residual jurisdiction’: an opportunity for a last-ditch attack on a decision on the ground that it is procedurally vitiated, rather than it is insecure or even demonstrably wrong on the factual or legal

but we do not think it is possible to say that this will always be so. It would be enough to say “For the reasons given by the arbitrators” if that was the judge’s reason. Otherwise it may be necessary to go further. But any further reasons need only be brief, so as to show the losing party why he has lost’. 33 CGU International Insurance plc v. Astra Zeneca Insurance Co Ltd [2006] EWCA Civ 1340, [2007] Bus. L.R. 162; [2007] 1 All E.R. (Comm) 501; [2007] 1 Lloyd’s Rep. 142; [2007] C.P. Rep. 4; [2006] 2C.L.C. 441; [2006] H.R.L.R. 43, at [48] ff., per Rix L.J.; and per Arden L.J. in BLCT (13096) Ltd v. J. Sainsbury plc [2003] EWCA Civ 884, [2004] 1C.L.C. 24; [2004] 2 P. & C.R. 3 at [22] and [31]. 34 Ibid., at [49], where Rix L.J. cited Tuckey L.J. in North Range Shipping Ltd v. Seatrans Shipping Corporation [2002] 1 W.L.R. 2397, C.A., at [14].

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merits. Indeed in this context the Court of Appeal has said that the residual discretion is highly restricted: it is not enough to show that the judge’s decision was merely perverse or that he had erred in law.35 An example might be that suggested by Arden LJ in one case:36 the High Court judge’s decision not to recuse himself on grounds of bias. Another example might be the judge’s declaration: ‘I will deal with the issue of permission myself and I do not need to receive any information from either party on that point’. Similar breaches of procedural fairness are not difficult to invent in theory. But they are rarer than hen’s teeth or trophy victories by the full English (male) football team in leading international tournaments.37 The policy of the law is to lean against second appeals38 from arbi­ tration  decisions, that is, from the High Court and then to the Court of Appeal. That policy was noted in the Itochu case (2012),39 the Amec case 35

36

37 38 39

CGU International Insurance plc v. Astra Zeneca Insurance Co Ltd [2006] EWCA Civ 1340, [2007] Bus. L.R. 162; [2007] 1 All E.R. (Comm) 501; [2007] 1 Lloyd’s Rep. 142; [2007] C.P. Rep. 4; [2006] 2C.L.C. 441; [2006] HRLR 43, at [98], per Rix L.J., concluding his long survey of this issue: ‘I can find in none of these submissions any cause for thinking that the judge’s refusal of leave to appeal was arbitrary or unfair; or was the product of a failure of intellectual engagement with the arguments put before him; or amounted actually or metaphorically to the absence of a decision on the issue; or even, for all that I have rejected this as a possible test of unfairness, was perverse; or, for this is ultimately the test, amounted to such unfairness in the process as to amount to a breach of article 6 of the Convention’. Arden L.J.’s brief discussion in a 2003 case is cited as follows by Rix L.J. in CGU International Insurance plc v. Astra Zeneca Insurance Co Ltd [2006] EWCA Civ 1340, at [52]: ‘in BLCT (13096) Ltd v. J Sainsbury plc [2003] EWCA Civ 884, [2004] 1C.L.C. 24; [2004] 2 P. & C.R. 3 the application complained of the first instance court’s decision to proceed to a decision on whether or not to grant leave to appeal against an arbitration award without an oral hearing [a decision on the permission issue on the basis of documents alone is consistent with Section 69(3)]. The applicant further argued that the restriction contained in Section 69(6) of the Arbitration Act 1996 was itself incompatible with Article 6. Arden L.J. asked herself, at para. 45, whether the Section 69(6) restriction “would apply to the refusal of a judge to recuse himself on the grounds of bias. It would certainly be very odd if the refusal of the judge to give leave against that decision meant that the appellant had no avenue of appeal to the Court of Appeal. In my judgment, the answer lies not in any incompatibility with the Convention but in the residual jurisdiction articulated in the North Range Shipping Ltd case.”’ The foreign (or non-English) reader should note that the last such trophy victory was the World Cup in 1966. For a trenchant examination of this topic, J. Hill, ‘Onward Appeals under the Arbitration Act 1996’ (2012) 31C.J.Q. 194. Itochu Corporation v. Johann M.K. Blumenthal GMBH & Co KG [2012] EWCA Civ 996; [2013] 1 All E.R. (Comm) 504; [2012] 2 Lloyd’s Rep. 437; [2012] 2C.L.C. 864, at [18], Gross L.J.

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(2011),40 and earlier in Sukuman Ltd v. Commonwealth Secretariat (2007), where Waller LJ said:41 ‘[The Arbitration Act 1996 contains] many sections in which the right to appeal to the Court of Appeal is circumscribed by the necessity to obtain leave from “the court” at first instance. …[This requirement is intended] to avoid the delay and expense that such appeals can cause. …[The] philosophy is reflected in Section 1(a) of the Arbitration Act 1996, which provides that “the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay and expense “ (our emphasis).’ The English court is also given a circumscribed power under Section  4542 of the Arbitration Act 1996 to decide a point of law (that is, a point of

40

41 42

commenting: ‘Court intervention in the arbitral process is broadly restricted to that which is necessary either to support the arbitral process or in the public interest ( for example, a challenge to an award on the ground of serious irregularity under Section  68 of the Act). Curtailing appeals to the Court of Appeal serves to avoid the delay and expense to which such appeals can give rise: see, Sumukan Ltd v. Commonwealth Secretariat [2007] EWCA Civ 243, [2007] Bus. L.R. 1075, at [15]’. AMEC Civil Engineering Ltd v. Secretary of State for Transport [2005] EWCA Civ 291, [2005] 1 W.L.R. 2339, at [9], per Sir Anthony May, criticising Jackson J’s grant of permission for a second appeal under s. 67, Arbitration Act 1996. [2007] EWCA Civ 243, [2007] Bus. L.R. 1075; [2007] 3 All E.R. 342; [2007] 2 All E.R. (Comm) 23; [2007] 2 Lloyd’s Rep. 87; [2007] 1C.L.C. 282, at [15]. s. 45, Arbitration Act 1996 states: (1) Unless otherwise agreed by the parties, the court may on the application of a party to arbitral proceedings (upon notice to the other parties) determine any question of law arising in the course of the proceedings which the court is satisfied substantially affects the rights of one or more of the parties. An agreement to dispense with reasons for the tribunal’s award shall be considered an agreement to exclude the court’s jurisdiction under this section. (2) An application under this section shall not be considered unless—(a) it is made with the agreement of all the other parties to the proceedings, or (b) it is made with the permission of the tribunal and the court is satisfied—(i) that the determination of the question is likely to produce substantial savings in costs, and (ii) that the application was made without delay. (3) The application shall identify the question of law to be determined and, unless made with the agreement of all the other parties to the proceedings, shall state the grounds on which it is said that the question should be decided by the court. (4) Unless otherwise agreed by the parties, the arbitral tribunal may continue the arbitral proceedings and make an award while an application to the court under this section is pending. (5) Unless the court gives leave, no appeal lies from a decision of the court whether the conditions specified in subsection (2) are met. (6) The decision of the court on the question of law

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English law)43 arising in the proceedings before the making of the main award. Section 45(2) of the Arbitration Act 1996 states: An application under this section shall not be considered unless—(a) it is made with the agreement of all the other parties to the proceedings, or (b) it is made with the permission of the tribunal and the court is satisfied— (i) that the determination of the question is likely to produce substantial savings in costs, and (ii) that the application was made without delay. Section 45 can be excluded by agreement and there is a restriction on appeal to the Court of Appeal, as noted en passant by Waller LJ in Sukuman Ltd v. Commonwealth Secretariat (2007).44 According to Mustill & Boyd, the court should assert sovereign command of the Section 45 gateway and, where appropriate, decide to override the parties’ agreement to obtain a judicial ruling:45 ‘The court is not obliged to determine a question of law even if the conditions imposed by [Section 45] are satisfied. For example, even if the application is made with the agreement of the parties, the court may consider that the question is not properly formulated, or is academic, or that it ought properly to be determined by the tribunal rather than by the court’. It is certainly desirable that the court should not be bound to act as the legal oracle under Section 45, just because the parties have so agreed. But there is no clear textual support for the argument just cited. (By contrast, for the purpose of Section 69, it has been decided that the High Court must hear an appeal on a point of English law if the parties agree to such an appeal:46 it is arguably regrettable that the court lacks sovereign command of the gateway under Section 69).

43 44

45 46

shall be treated as a judgment of the court for the purposes of an appeal. But no appeal lies without the leave of the court which shall not be given unless the court considers that the question is one of general importance, or is one which for some other special reason should be considered by the Court of Appeal. s. 82(1), Arbitration Act 1996. [2007] EWCA Civ 243, [2007] Bus. L.R. 1075; [2007] 3 All E.R. 342; [2007] 2 All E.R. (Comm) 23; [2007] 2 Lloyd’s Rep. 87; [2007] 1C.L.C. 282, at [9]: ‘[Section 45] relates to the court’s jurisdiction to rule on a preliminary point of law. It (like Section 69) commences with the words “Unless otherwise agreed by the parties”, and it contains a fetter on the right to appeal to the Court of Appeal not by reference to any decision “under this section”, but to particular aspects of decisions under Section 45 which on a literal interpretation do not include a decision on whether the parties have “otherwise agreed”’. Mustill & Boyd, Commercial Arbitration: Companion Volume (2001), 326. Walker J. in Royal & Sun Alliance Insurance plc v. BAE Systems (Operations) Ltd [2008] EWHC 743 (Comm), [2008] 1 Lloyd’s Rep. 712; [2008] 1C.L.C. 711; [2008] Bus. L.R. D127, at

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The Key Which Turns the Lock to the Section 69 Gate: A Point of English Law

Issues of construction of written contracts can fall within the scope of ‘law’.47 Sometimes the arbitration will also or instead be asked to determine the correct interpretation of the arbitration agreement, but this will normally attract protection under Section 67, rather than Section 69.48 In Trustees of Edmond Stern Settlement v. Simon Levy (2007) Judge Coulson QC, in the Technology and Construction Court, said that one-off contracts are unlikely to raise issues of sufficient general importance to warrant permission being granted under Section 69.49 More generally, he noted that interpretation of written contracts is often a matter of impression, involving reference to relevant ‘factual matrix’ material. For this reason, the High Court should be slow to second-guess that type of decision.50 Where the governing substantive law is English, the arbitral tribunal is obliged to adhere to English principles governing interpretation of written contracts.51 [29], construing s. 69(2), Arbitration Act 1996: ‘An appeal shall not be brought under this section except—(a) with the agreement of all the other parties to the proceedings, or (b) with the leave of the court’. 47 eg, Henry Boot Construction Ltd v. Alstom Combined Cycles Ltd [2005] EWCA Civ 814, [2005] 1 W.L.R. 3850. 48 AMEC Civil Engineering Ltd v. Secretary of State for Transport [2005] EWCA Civ 291, [2005] 1 W.L.R. 2339 (in fact a point of interpretation of the arbitration agreement will normally give rise to a challenge under the jurisdiction head, within Section 67, Arbitration Act 1996). 49 [2007] EWHC 1187 (TCC), at [11] and 13], per Judge Coulson QC (as he then was): ‘11 It is common ground that the true construction of this one-off form of words cannot be a matter of general or public importance…13 Questions of construction are often a matter of impression. Whilst I can see how and why the Arbitrator could have come to a different view, I am unable to say that he was obviously wrong in reaching the conclusion he did. It seems to me that either interpretation was available to him and, as he was bound to do, he chose one over the other. I do not consider that he was obviously wrong in the choice he made. Furthermore, given that this is a question of construction that had to be answered against the background of the relevant factual material in accordance with the well-known principles in Investors Compensation Scheme v. West Bromwich Building Society [1998] 1 W.L.R. 896, HL, it should only be in the clearest cases that a Judge considering a Section 69 application, who has not heard such evidence, should substitute his own construction for that of the Arbitrator, who has’. 50 Ibid. 51 On the principles of interpretation under Investors Compensation Scheme v. West Bromwich Building Society [1998] 1 W.L.R. 896, 912–913, HL, per Lord Hoffmann (on which see also Chartbrook Ltd v. Persimmon Homes Ltd [2009] UKHL 38; [2009] 1 A.C. 1001, at [14]

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It follows that the tribunal must not engage in equitable re-writing of the agreement:52 ‘The tribunal does not have a judicial discretion” to decide on a commercially sensible solution…nor does it have the right to rewrite a contractual provision…so that it accords with what the tribunal thinks

52

to [25], per Lord Hoffmann) and the doctrine of rectification, N. Andrews, Contract Law (Cambridge University Press, 2011), ch. 14; K. Lewison, The Interpretation of Contracts (5th edn., 2011); on rectification, see also D. Hodge, Rectification: The Modern Law and Practice Governing Claims of Rectification (2010); for an important recent case, relevant to both aspects, Daventry District Council v. Daventry & District Housing Ltd [2011] EWCA Civ 1153, [2012] 1 W.L.R. 1333. Besides the foregoing, see on this topic: G. McMeel, The Construction of Contracts: Interpretation, Implication and Rectification (Oxford University Press, 2nd edn. 2011) (see also McMeel’s articles in [1998] L.M.C.L.Q. 382; (2003) 119 L.Q.R. 272; (2005) 34 CLWR 256; [2006] L.M.C.L.Q. 49; (2011) European Business L. Rev. 437–449; and McMeel, ‘The Principles and Policies of Contractual Construction’, in A Burrows and E Peel (eds), Contract Terms (Oxford University Press, 2007), ch. 3); Catherine Mitchell, Interpretation of Contracts (2007). Other discussion: Lord Bingham, ‘A New Thing Under the Sun: The Interpretation of Contract and the ICS Decision’ (2008) 12 Edinburgh L.R. 374; R. Buxton, “Construction” and Rectification After Chartbrook’ [2010] C.L.J. 253; J. Cartwright, ‘Interpretation of English Law in Light of the Common Frame of Reference’ in H. Snijders and S. Vogenauer (eds.), Content and Meaning of National Law in the Context of Transnational Law (Sellier, 2009); Lord Hoffmann, ‘The Intolerable Wrestle with Words and Meanings’ (1997) South Africa L.J. 656; E McKendrick, in S. Worthington (ed.), Commercial Law and Commercial Practice (Hart, Oxford, 2003); D. McLauchlan, ‘Contract Interpretation: What is it About?’ (2009) 31 Sydney Law Review 5; Lord Nicholls, ‘My Kingdom for a Horse: the Meaning of Words’ (2005) 121  L.Q.R. 577; Lord Phillips, ‘The Interpretation of Contracts and Statutes’ (2002) 68 Arbitration 17; Spigelmann C.J., ‘From Text to Contract: Contemporary Contractual Interpretation’ (2007) 81 A.L.J. 322; Sir Christopher Staughton, ‘How Do The Courts Interpret Commercial Contracts?’ [1999] C.L.J. 303; Lord Steyn, ‘Written Contracts: To What Extent May Evidence Control Language?’ (1988) 41C.L.P. 23; C. Valke, ‘On Comparing French and English Contract Law: Insights from Social Contract Theory’ (2009) Jo. of Comparative Law 69–95 (cited as ‘illuminating’ by Lord Hoffmann in the Chartbrook case [2009] UKHL 38; [2009] 1 A.C. 1001, at [39]); C. Valcke, ‘Contractual Interpretation at Common Law and Civil Law: An Exercise in Comparative Legal Rhetoric’, in J.W. Neyers, R. Bronaugh, S.G.A. Pitel, Exploring Contract Law (Hart, Oxford, 2009), 77 ff; S. Vogenauer, ‘Interpretation of Contracts: Concluding Comparative Observations’, in A. Burrows and E. Peel (eds.), Contract Terms (Oxford University Press, 2007), ch. 7. This restrictive approach was noted, after a review of several authorities, in Omnibridge Consulting Ltd v. Clearsprings (Management) Ltd [2004] EWHC 2276 (Comm), at [52] (Siberry Q.C., deputy High Court judge).

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the parties ought to have agreed, irrespective of their intentions as deduced from the terms of the contract, properly construed.´ The courts will be slow to construe the arbitration clause as authorising a looser approach. For example, in Home & Overseas Insurance Co Ltd v. Mentor Insurance Co (UK) Ltd (1990)53 the arbitration agreement stated: ‘The arbitrators…shall interpret this reinsurance as an honourable engagement and they shall make their award with a view to effecting the general purpose of this reinsurance in a reasonable manner rather than in accordance with a literal interpretation of the language’. The Court of Appeal held that this merely affirmed the commercial style of English interpretation of contracts (notably the approach endorsed by Lord Diplock in ‘The Antaios’, 1985).54 There is some first instance suggestion that (i) the date of formation (if extrinsic to the text) falls outside Section 69; (ii) similarly, issues of rectification; and (iii) issues concerning the incorporation of side agreements. However, of these, only (i) seems clearly to involve an issue of fact, rather than law.55 Another case decides, persuasively, that a question of reasonableness, detached from the text of a written contract, but arising in connection with a written contract, is an issue of fact.56 53

54 55

56

[1990] 1 W.L.R. 153, 161–2, C.A., per Parker L.J.; however, Lloyd L.J. at 164–165 contemplated that arbitrators might be inclined to be more ‘lenient’ in their approach to contractual language; but in the ensuing quarter of a century the majestic expansion of the Investors Compensation Scheme principles (the Investors Compensation Scheme v. West Bromwich Building Society [1998] 1 W.L.R. 896, 912–913, H.L.), has undermined the suggested antithesis between lenient and strict approaches to contractual interpretation; Lord Lloyd was later to dissent in that 1998 case ([1998] 1 W.L.R. 896, 904). [1985] A.C. 191, HL; on which N. Andrews, Contract Law (Cambridge University Press, 2011), 17.27 (see also 14.06 and 14.07). The following case must be treated with caution as far as propositions (ii) and (ii) are concerned: Plymouth C.C. v. D. R. Jones (Yeovil) Ltd [2005] EWHC 2356, per Coulson J. at [20], suggesting (persuasively) that the question (extrinsic to the text of the written contract) of the contract’s date of formation was a question of fact and not of law; less convincingly at [26] and [39] suggesting that the question whether the written contract should be open to rectification on the basis of shared error was an issue of fact (the more persuasive analysis is that such an issue is quintessentially one of establishing the integrity of the text and, therefore, a matter of law); suggesting further at [32] to [34] that the issue whether the written agreement includes other documents, not expressly included in the main text, is a question of fact; again this view seems doubtful. London Underground Ltd v. Citylink Telecommunications Ltd [2007] EWHC 1749 (TCC), [2007] 2 All E.R. (Comm) 694; [2007] BLR 391; 114 Con LR 1, at [250] ff, per Ramsey J.: ‘250 On the basis of those findings of fact, the Arbitrator concluded in paragraph 236 that

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An aggrieved party cannot bring an appeal from an award on the basis that the arbitral tribunal has committed an error of fact or that it has misidentified or misapplied a point of foreign law.57 Furthermore, as the Court of Appeal decided in C v. D (2007),58 if the seat of the arbitration is England and Wales, a party cannot evade this last limitation by seeking a declaration from a foreign court that the English award on a point of foreign law involves a misunderstanding or misapplication of that foreign law. Findings of fact should not be dressed up as issues of law.59 The arbitral tribunal’s findings of fact cannot be attacked under Section  69 by contending that there is no evidence at all to support them, or by similar intellectual devices.60 IV

Exclusion of Appeal on Points of English Law

Parties can contract out of the curial appeal process on points of English law, and thus consensually disapply the Section  69 route to the High Court. But careful wording must be adopted. Thus Gloster J in Shell Egypt West Manzala GmbH v. Dana Gas Egypt Ltd (2009) held that the formula ‘final, conclusive and binding’, contained in the the dates for completion of the EBW in UD07 could no longer be regarded as a satisfactory  yardstick for measuring LUL’s performance of those obligations. He was entitled to decide whether the dates in UD07 were reasonable in the light of the circumstances and he did so. That is essentially a question of fact. There is no question of the Arbitrator construing the contract by reference to subsequent conduct. He was assessing the reasonableness of the dates in UD07 in the light of the relevant circumstances. 251 There does not seem to be a question of law. The Arbitrator approached the question of whether the dates were reasonable in the correct fashion and there was nothing wrong or obviously wrong in his approach’. 57 This is the result of the definition of ‘question of law’ in s. 82(1), Arbitration Act 1996; affecting scope of s. 69, Arbitration Act 1996 (appeal to court on a ‘question of law arising out of an award made in the [arbitration] proceedings’; choice of substantive law covered by s. 46(1), Arbitration Act 1996. 58 C v. D [2007] EWCA Civ 1282, [2008] 1 Lloyd’s Rep. 239. 59 E.g., Surefire Systems Ltd v. Guardian ECL Ltd [2005] EWHC 1860 (TCC), [2005] B.L.R. 534, at [21], per Jackson J; see also Steyn L.J. in Geogas SA v. Trammo Gas Ltd (‘The Baleares’) [1993] 1 Lloyd’s Rep. 215, cited in London Underground Ltd v. Citylink Telecommunications Ltd [2007] EWHC 1749 (TCC); [2007] 2 All E.R. (Comm) 694; [2007] B.L.R. 391; 114 Con. L.R. 1, at [61]. 60 London Underground Ltd v. Citylink Telecommunications Ltd [2007] EWHC 1749 (TCC); [2007] 2 All E.R. (Comm) 694; [2007] B.L.R. 391; 114 Con. L.R. 1, at [52] to [66], per Ramsey J. for a detailed collection of relevant cases.

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arbitration agreement, and clearly intended to bestow some form of finality on an award, did not render an arbitration award secure from appeal to the High Court on a point of law.61 The words ‘final, conclusive and binding’ merely indicated that the award would be final and binding as a matter of res judicata, with the result that there should be no further litigation on the same factual matters between the same parties. This still leaves the door open to the award being subject to appeal to the High Court on a point of English law (if permission to appeal to the High Court can be obtained from a judge under Section 69(2)(3), Arbitration Act 1996). Successful express exclusion can be achieved by adopting certain institutional rules. For example, the rules of the London Court of International Arbitration (L.C.I.A.), Article 26.9, provide: ‘All awards shall be final and binding on the parties. By agreeing to arbitration under these Rules, the parties undertake to carry out any award immediately and without any delay (subject only to Article 27 [which concerns correction of awards by the arbitration tribunal on request by a party or on the initiative of the tribunal]; and the parties also waive irrevocably their right to any form of appeal, review or recourse to any state court or other judicial authority, insofar as such waiver may be validly made.’ Similarly, Article 34.6 of the I.C.C. (2012) rules (International Chamber of Commerce) provides: ‘Every award shall be binding on the parties. By submitting the dispute to arbitration under these Rules, the parties undertake to carry out any award without delay and shall be deemed to have waived their rights to any form of recourse insofar as such waiver can validly be made.’ However, a clear express clause in a dispute resolution agreement, stipulating that an aggrieved party can appeal an award on a point of English law, will be given effect, even though institutional rules, incorporated into the same agreement, contain a conflicting rule which purports to oust a Section 69 appeal. Walker J so decided in Royal & Sun Alliance Insurance plc v. BAE Systems (Operations) Ltd (2008), where the relevant express clause stated: ‘Any party to the Dispute may appeal to the court on a question of law arising out of an award 61

[2009] EWHC 2097 (Comm).

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made in the arbitral proceedings’.62 In that case the applicable institutional rules were those of the LCIA. As mentioned, the LCIA provision was held to be overridden by the parties’ express clause conferring a right to a Section  69 appeal. Furthermore, issues of incorporation of terms can arise. The Court of Appeal in Sukuman Ltd v. Commonwealth Secretariat (2007)63 held that the parties’ arbitration agreement incorporated an exclusion clause ousting appeal under Section 69. The process of incorporation was by express reference. Exclusion of Section 69 of the Arbitration Act 1996 could not be characterised as an ‘onerous or unusual’ term for the purpose of common law doctrine.64 The exclusion of appeal was effected by this clause:65 ‘The judgment of the tribunal shall be final and binding on the parties and shall not be subject to appeal. This provision shall constitute an ‘exclusion agreement’ within the meaning of the laws of any country requiring arbitration or as those provisions may be amended or replaced.’ It was also held that such exclusion was not contrary to Article 6 of the European Convention on Human Rights.66 V

Effect of the High Court Appeal under Section 69

Section 69(7) of the Arbitration Act 1996 states that the High Court can uphold the award, or vary it, or set it aside, or remit the award to the (same) arbitral 62

[2008] EWHC 743 (Comm), [2008] 1 Lloyd’s Rep. 712; [2008] 1C.L.C. 711; [2008] Bus. L.R. D127, at [22]. 63 [2007] EWCA Civ 243, [2007] Bus. L.R. 1075; [2007] 3 All E.R. 342; [2007] 2 All E.R. (Comm) 23; [2007] 2 Lloyd’s Rep. 87; [2007] 1C.L.C. 282. 64 Ibid., at [44] to [52], and [61], deciding that the doctrine permitting the courts to lean against incorportation of ‘onerous or unusual’ clauses (Interfoto Picture Library Ltd v. Stiletto Visual Programmes Ltd [1989] Q.B. 433, C.A.) was not applicable to such a clause. 65 Ibid., at [36]. 66 Ibid., at [58] to [60], where Waller L.J. said: ‘once arbitration is recognised as in the interests of parties seeking to resolve their dispute, it is no major step to recognise the advantages to the parties (not, I stress, just one party) agreeing that there be no appeal from that award. The arbitrators are the persons that the parties have by contract agreed to resolve their disputes. The reason for arbitration would normally include a wish for speed and privacy. The parties are simply agreeing a process that fulfils those objectives. 59 There is in any event under the Arbitration Act 1996 not a total exclusion of the court. Safeguards are provided by

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tribunal.67 In the case of a remittal, the tribunal must normally make a fresh award within three months.68 The Arbitration Act 1996 does not make clear whether the arbitral tribunal is prevented from continuing proceedings during the currency of a challenge under Section 69, for example, when the award is a partial award and there are other matters still before the arbitral tribunal. By contrast, when a challenge is proceeding before the High Court on the issue of substantive jurisdiction under Section 67, statute makes clear that the arbitral tribunal ‘may’ continue its proceedings and make a further award.69 The explanation for this silence is that the draftsman assumed that Section 69 challenges would arise only in respect of final awards, so that the arbitral tribunal would thereafter have become inactive in accordance with the functus officio principle. This assumption is revealed when Section  45 is compared. That provision concerns applications to the court for determinations of points of law at a preliminary stage of the proceedings. Section 45(4) explicitly addresses the impact on the arbitral proceedings of such a Section 45 application: Unless otherwise agreed by the parties, the arbitral tribunal may continue the arbitral proceedings and make an award while an application to the court under this section is pending. But there might be some instances, admittedly rare, when a Section 69 challenge occurs in respect of a partial award, and proceedings are still on foot,

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the mandatory provisions of Section 67 and 68. If the partiality of the arbitrators is open to question, or there is some serious irregularity then an application under Section 68 can be made. All that is being waived is the right to a public hearing in court (and that by the unchallenged arbitration clause), and a right to test the decision of the arbitrator in a court other than under Sections 67 and 68. 60 There is no allegation that the contract was entered into under duress and there is no doubt that if the clause was validly incorporated into the contract, its effect would be to waive certain Article 6 rights’. s. 69(7), Arbitration Act 1996 provides: On an appeal under this section the court may by order—(a) confirm the award, (b) vary the award, (c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the court’s determination, or (d) set aside the award in whole or in part. The court shall not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration. s. 71(3), Arbitration Act 1996 states: Where the award is remitted to the tribunal, in whole or in part, for reconsideration, the tribunal shall make a fresh award in respect of the matters remitted within three months of the date of the order for remission or such longer or shorter period as the court may direct. s. 67(2), ibid., states: (2) The arbitration tribunal may continue the arbitral proceedings and make a further award while an application to the court under this section is pending in relation to an award as to jurisdiction.

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because the arbitral tribunal has further decision-making to complete. It is submitted that Section  45(4) should be applied by analogy to this context. In Sheffield United Football Club Ltd v. West Ham United Football Club plc (2008),70 Teare J held that an arbitration agreement which expressly excludes ‘recourse, review or appeal before a court of law’ does not by implication create a right of appeal to an upper level arbitration tribunal which has a review or appellate function. The High Court has power to issue an anti-suit injunction to restrain resort to this unauthorised further stage of arbitration, provided there is ‘urgency’, and it is not practicable to leave the question of breach to the arbitral tribunal itself. The European Court of Justice’s prohibition on anti-suit relief in the West Tankers case (2009) (Allianz SpA ( formerly Riunione Adriatica di Sicurta SpA) v. West Tankers Inc (C-185-07)71 is confined to injunctions concerning intra-Europe court proceedings. And so there is no prohibition upon anti-suit relief aimed at halting or precluding unauthorised arbitration proceedings.72 VI

Concluding Remarks

If a reform body were asked to reconsider Section 69, what might be taken to be the leading considerations in this field? Six aspects dominate: (i) (ii)

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arbitral awards should be accorded finality (but, of course, this must not become a slogan precluding consideration of other factors); market forces dictate that the English law of arbitrate should be arranged so that it does not alienate potential international commercial custom; however, the 2006 report on the Arbitration Act 1996 states that a majority of respondents considered that appeals from arbitral tribunals to the High Court on points of English law should be retained.73

[2008] EWHC 2855 (Comm); [2009] 1 Lloyd’s Rep. 167. Allianz SpA etc v. West Tankers (C-185/07) [2009] 1 A.C. 1138, E.C.J. On that topic the leading discussion is now AES Ust-Kamenogorsk Hydropower Plant LLP v. Ust-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35, [2013] 1 W.L.R. 1889. ‘Report (2006) on the Arbitration Act 1996’, at [66] to [69] (www.idrc.co.uk/aa96survey/ Report_on_Arbitration_Act_1996.pdf).

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(iii)

arbitration is a consensual mechanism; accordingly, due weight should be given to freedom of contract; this means that prospective parties to arbitration should remain free to choose non-English law as the applicable law,74 or to exclude the Section 69 judicial appeal on a point of English law,75 or positively to create a right of reference under Section 69;76 the absence of a true jurisdictional basis, or a failure of procedural fairness must be accorded greater weight than an error of law; this is reflected in the fact that the rights of challenge to an award under Sections 67 and 68 cannot be excluded by agreement; an error of law might be regarded as more deserving of correction than an error of fact; appeals to the courts from commercial arbitration have proved a fertile source of enrichment of English contract law; many seminal cases have arisen into the daylight from the subterranean tunnels of the arbitral process.77

(iv)

(v) (vi)

It is submitted that Section 69 strikes a sound balance. However, as explained below, the forum for judicial appeal should be the Court of Appeal, specially constituted to draw upon commercial expertise. Under Section 69, freedom of contract is respected in two respects: (i) parties can exclude this mechanism by clear language; (ii) conversely, parties can positively stipulate that appeal to the High Court should be a right if one party is tribunal’s decision on a point of English law. In the absence of (ii), the High Court is not bound to accede to an application for appeal on a point of English law. Instead the court must take into account the chances of the appeal

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s. 82(1), Arbitration Act 1996; affecting scope of s. 69, Arbitration Act 1996; choice of substantive law covered by s. 46(1), Arbitration Act 1996. Shell Egypt West Manzala GmbH v. Dana Gas Egypt Ltd [2009] EWHC 2097 (Comm), Gloster J. Royal & Sun Alliance Insurance plc v. BAE Systems (Operations) Ltd [2008] EWHC 743 (Comm); [2008] 1 Lloyd’s Rep. 712; [2008] 1C.L.C. 711; [2008] Bus. L.R. D127, per Walker J: ‘Finality is often regarded as a good thing. However parties to an arbitration may take the view that, as regards questions of law, finality should come from the court rather than from the arbitral tribunal’. Notable examples include: Schuler (L) AG v. Wickman Machine Tool Sales Ltd [1974] A.C. 235, H.L. (contractual terms; conditions); Davis Contractors Ltd v. Fareham U.D.C. [1956] A.C. 696, H.L. (frustration); Transfield Shipping Inc v. Mercator, ‘The Achilleas’ [2008] UKHL 48, [2009] 1 A.C. 61 (remoteness of damages in contract law).

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succeeding and the importance of the relevant point.78 Statistics show that only roughly a quarter of such applications are in fact successful.79 However, the institutional mechanisms for appeal to the English courts might be refined. The reality is that in a major commercial arbitration the sole arbitrator or chairman of the arbitral tribunal will be an experienced commercial lawyer, often a QC (a senior barrister), or a former English judge of distinction. Even if not a former judge, the individual might often be of sufficient calibre to have decided not to apply to become a High Court judge, even though he or she is manifestly highly likely to have gained such promotion if an application had been made (in fact many such senior barristers sit as part-time High Court judges for a number of weeks each year). It is questionable, therefore, whether on points of real legal difficulty sufficient to pass the test prescribed by the ‘filter’ of Section  69 an appeal to a Commercial Court judge, sitting alone, will be perceived as conferring additional weight to the award, or capable of convincingly repudiating it on legal grounds. All too often, where the point of law is fundamental and highly contentious, the Commercial Court’s decision will prove to be merely a procedural stepping-stone, the Commercial Court judge readily acknowledging the need for a re-think by a higher appellate court and thus giving permission for a second appeal. Might it not be better to adopt a more pragmatic approach, and to take a bold leap, eliminating the first instance stepping-stone? For the reality is that the arbitral tribunal has already provided the equivalent of first instance High Court ‘intellectual input’. The author’s suggestion is that the primary route for an appeal under Section 69 should be to the Court of Appeal, once the individual Commercial Court judge has given permission under that provision for such an appeal. Given the paucity of appeals under Section  69 (always less than 20 a year within the Commercial Court filter system), it would not over-burden the Court of Appeal for the matter to be automatically assigned to the Master of the Rolls. He (or she) should have power to co-opt current members of the Commercial Court (either two such members, or four, in the case of obviously momentous points of law) to hear the appeal as adjunct Lords Justices of Appeal. Only in quite exceptional circumstances—to be prescribed 78

79

s. 69(3)(c), Arbitration Act states: ‘that, on the basis of the findings of fact in the award—(i) the decision of the tribunal on the question is obviously wrong, or (ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt…’ Figures provided in the report by V.V. Veeder and A. Sander (2009), Schedule A, p. 8; report available at: (http://www.lmaa.org.uk/uploads/documents/First%20Interim%20Report %20Mance%2024%2005%202009.pdf).

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by rules—would the Supreme Court of the United Kingdom consider it appropriate to grant permission for a second and final appeal. In this way the law-making potential of Section 69 might be refined. A Court of Appeal decision will be binding not only on all lower courts but on the Court of Appeal itself. The fact that the Court of Appeal would be the relevant court for substantive matters under Section  69 of the Arbitration Act 1996 would tend to inhibit still further the ‘gateway’ decision-maker. It is unlikely that more than a trickle of cases would find their way to the Court of Appeal, and only an occasional case would proceed higher to the Supreme Court. Anxiety concerning judicial involvement would be met by retaining the current rule that appeals under Section 69 can be excluded by the parties, using clear language or by adopting institutional rules containing such an explicit exclusion.

Chapter TWENTY-four

The Influence of the European Convention on Human Rights on Judicial Independence in Criminal Procedural Law in Switzerland Gian Andrea Danuser* I

The Accession of Switzerland to echr

In the beginning of the seventies of the last century Switzerland entered a period of big and fundamental changes in the field of law. The country which prides itself to be the oldest democracy in the world, finally, in March 1971, gave the right to vote and to election to the better half of their population, their women. In the beginning this was only on the level of the Confederation; until these rights were installed in all 26 Cantons of Switzerland it took another twenty years. Only one and a half years later, in December 1972, Switzerland signed the European Convention on Human Rights.1 The country, which in its founding document of 1291 had emphasized, not to accept foreign Judges, by this convention accepted the Jurisdiction of the European Court of Human Rights in Strasburg, which of course was a foreign one. I would like to illustrate the interaction of opinions and decisions between the European Court of Human Rights and the Swiss Federal Court over questions of Judicial Independence in the field of criminal procedural law by means of analyzing a number of judgments of these courts. In the field of criminal procedural law the guaranties of Section I Art. 5 and Art. 6 of the Convention are of great importance. In connection with the question of judicial independence Art. 5 paras. 3 and 4 and Art. 6 para. 1 of the Convention are relevant and of special interest. We have the interesting situation, that within only two following articles of the Convention we find the

* Gian Andrea Danuser, Graduate in law of the University of Zurich, Switzerland, lic. iur. (University Zurich) 1971, clerk at Zurich District Court 1971, 1972, practicing barrister in Zurich since 1974, Secretary of the International Association of Judicial Independence and World Peace. 1 Mark E. Villiger, Handbuch der Europäischen Menschenrechtskonvention(EMRK), 2nd ed. Zürich 1999, pp. 22, 23.

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_025

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concepts of “judge” and “other officer authorised by law to exercise judicial power” (Art. 5 para. 3), the concept of “court” (Art. 5 para. 4) and the concept of “independent and impartial tribunal” (Art. 6 para. 1) and we have the opportunity to learn to know the opinions of the judges of the Swiss Federal Court (the Supreme Court of Switzerland) and of the European Court of Human Rights. One and a half year after the ratification of the Convention by the Swiss Government in November 1974 the first case came up.2 Mr Friedrich Schiesser, a Swiss citizen, after hiding from the police for some time gave himself up and was brought at once before the Winterthur District Attorney (Bezirksanwalt). The latter heard Mr Schiesser without his lawyer being present and then, on the same day, made an order directing that Mr Schiesser be placed in detention on remand (Untersuchungshaft). The District Attorney strongly suspected that Mr Schiesser had committed or attempted to commit several offences of aggravated theft and feared that he might suppress evidence (Article 49, subparagraph a), of the Zurich Code of Criminal Procedure – Strafprozessordnung, hereinafter referred to as StPO). Mr Schiesser lodged an appeal (Rekurs) against the above mentioned order but it was dismissed by the Zürich Public Prosecutor (Staatsanwalt) on 13 April 1976. The Public Prosecutor, adopting the grounds relied on by the District Attorney, stated that the investigations had not been completed and that there was reason to believe that the applicant, who had no fixed abode in Switzerland, might abscond. Mr 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 and to Article 5 paras. 1 (c) and 3 of the Convention. He described as arbitrary the statement that he might suppress evidence and questioned whether the District Attorney was an “officer authorised by law to exercise judicial power,” within the meaning of Article 5 para. 3. By a judgment of 14 July 1976 the Federal Court (Public-Law Chamber) rejected the appeal.3 It accepted that there were reasons to believe that the applicant might suppress evidence if he were released. It also considered  that, since the circumstances clearly gave rise to a suspicion that the applicant had committed thefts, there was no violation of Article 5 para. 1 (c). 2 The following quotations and the translation into English are adopted from the case Schiesser v. Switzerland Series A vol. 34. 3 BGE 102 Ia 179 ff.

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In regard to Article 5 para. 3, the Federal Court, having noted that there was a diffenrence of opinion amongst legal writers over the interpretation of this provision, stated: The main criterion for classifying a given activity as’ judicial’ is the independence which the bodies acting in that capacity enjoy vis–à-vis other State authorities and other persons entrusted with functions relating to the administration of justice as well as vis-à-vis institutions and organisations in the public sector…. (p. 180) However, the text of Article 5 para. 3 of the Convention demonstrates that it does not see the attributes of a judge or judicial independence in terms of the principle of separation of powers…. The only possible interpretation of this Article is that even bodies which are administrative by reason of their position meet the Convention’s requirements to the extent that they exercise judicial functions, that is, act independently when giving decisions in that capacity. Thus, according to Article 5 para. 3……., what is above all decisive is not the place held in the organisation of the State but rather the function to be exercised. In other words, that provision does not in principle preclude the simultaneous exercise by one and the same person of different functions, namely functions relating to investigation as well as functions in other areas of the administration of criminal justice…. (p. 181) We can see, that even regarding that there was a difference of opinion amongst legal writers over the interpretation of Art. 5 para. 3 and that there was now possibly a “foreign judge” in Strasburg reviewing their judgments the selfconfidence of the Judges of the Federal Court was perfectly intact, when they declared the there was only one possible interpretation of this article. As practicing defence counsel with some experience we will not give too much weight to such statements, as we will see. In support of this interpretation, the Federal Court pointed out that, unlike paragraph 3 (art. 5–3), paragraph 4 of Article 5 (art. 5–4) uses the word “court.” A further argument was derived from Article 6 para. 1: There is good reason to suppose that, had the authors of the Con­ vention  wished to confer on an accused such an extensive guarantee as regards the independence and impartiality of the competent authority, they would have utilised in Article 5 para. 3 wording identical to that in Article 6 para. 1, namely an independent and impartial tribunal. (p. 182)

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Turning to the powers of the District Attorney, the Federal Court noted that he is both an investigating authority (Ermittlungs – und Untersuchungsbehörde), under the supervision of the Public Prosecutor, and – in cases before a single judge or the District Court – a prosecuting authority. In the present case, the District Arrorney had acted as an investigating authority in which capacity Article 31 StPO required him to be equally thorough in gathering evidence in favour of and evidence against the accused. From this the Federal Court concluded: It is of little consequence that the District Attorney is incorporated in the administrative hierarchy and thus constitutes an administrative authority by reason of his position in the organization of the State……..At the investigation stage, he in fact fulfills a judicial function and exercises no administrative activity…..Moreover, the rule on the election of District Attorneys by the people….shows that the legislature wished to secure for this body a measure of independence vis-à-vis the executive and the administration even as regards the procedure for appointment. (p. 183, 184) This view is not contradicted by the fact that, during the investigation, the District Attorney’s Office may receive from the Public Prosecutor’s Office directives concerning either the exercise of his activities in general or a specific case (opening, conduct and closure of the investigation)…. What is decisive is that, when acting as a supervisory body during the investigation, the Public Prosecutor’s Office as well is carrying out a judicial function of investigation; it is only if and when the case is sent for trial that that Office assumes its role of prosecutor and thereby becomes a party to the proceedings. (p. 184) When we reflect on these considerations we must remind ourselves that criminal procedural law in continental Europe, unlike the tradition of common law, was deeply rooted in a tradition of the Inquisition and the principles of Art. 6 para. 1 of the Convention, which include the right to equality of arms, a principle which is most important in criminal proceedings, were at the time not yet very well implemented in Switzerland and other countries of the European continent. The court ruled that under Article 5 § 3 there is both a procedural and a substantive requirement. The procedural requirement places the “officer” under the obligation of hearing himself the individual brought before him; the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of deciding, by reference to

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legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons. In November 1976 Mr Schiesser filed an application to the Commission for Human Rights, alleging a violation of Aritcle 5 para. 3 of the Convention in 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.4 As to the law the Court held the following: “…….the court has to ascertain only whether the said Attorney possessed the attributes of an, officer authorised by law to exercise judicial power.” p. 25. To sum up, the, officer ‘is not identical with the, judge’ but must nevertheless have some of the latter’s attributes, that is to say he must satisfy certain conditions each of which constitutes a garantee for the person arrested. p. 31. The first of such conditions is independence of the executive and of the parties. This does not mean that the ‘officer’ may not be to some extent subordinate to other judges or officers provided that they themselves enjoy similar independence. In addition, under Article 5 para. 3, there is both a procedural and a substantive requirement. The procedural requirement places the, officer under the obligation of hearing himself the individual brought before him; the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons. Mr. Schiesser and the minority of the Commission maintain that the District Attorney does not provide the necessary guarantees of independence and that this is so for two reasons: firstly, he acts in certain cases as a prosecuting authority; secondly, he is subordinate to the Public Prosecutor’s Office and through that Office, to the Department of Justice and the Government of the Canton Zurich. p. 33. In regard to the first point (prosecution), the Court emphasises that in the present case the District Attorney intervened exclusively in his capacity as an investigating authority (p. 34),…………..He did not assume the mantle of 4 Schiesser v. Switzerland Series A vol. 34 para. 19.

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prosecutor: he neither drew up the indictment nor represented the prosecuting authorities before the trial court. He therefore did not exercise concurrent investigating and prosecuting functions, with the result that the Court is not called upon to determine whether the converse situation would have been in conformity with Article 5 para. 3. In regard to the second point (subordinate status), the government stressed that the Winterthur District Attorney’s decision to place Mr Schiesser in detention on remand was taken in complete independence. This argument corresponds to the realities of the situation (p. 35)……………..Since he had neither to submit to outside interference nor to consult another authority, the District Attorney exercised the personal discretion conferred on him by law. In these conditions, the Court considers that in the present case he offered guarantees of independence that are sufficient for the purposes of Article 5 para. 3. The Court is therefore of the opinion that the Winterthur District Attorney offered in the present case the guarantees of independence and the procedural and substantive guarantees inherent in the notion of, officer authorised by law to exercise judicial power. There has accordingly been no breach of Article 5 para. 3. (p. 38) For these reasons the court held by five votes to two that there has been no breach of Article 5 para. 3 In his dissenting opinion Judge Ryssdal quoted that “it is a fundamental principle that prosecution and judiciary should be separated. I think that this principle should be applied also in the interpretation of Article 5 para.3. of the convention and that an officer who acts as a public prosecutor cannot be regarded as an, officer authorised by law to exercise judicial power’, within the meaning of Article 5 para. 3.”5 Judge Evrigenis stated in his dissenting opinion: “To entrust the power of decision regarding detention on remand to an authority which numbers amongst its powers that of a prosecuting authority would be contrary to the Convention. It is immaterial whether or not in a given case this authority is called on to exercise the two kinds of power. Their incompatibility is inherent in the system itself and divests the authority in question of the legal and psychological attributes of independence, objectivity and impartiality that must be possessed by the authority to which Article 5 para. 3 entrusts the fate of a person deprived of his liberty.”6 5 Annex to Schiesser v. Switzerland Series A vol. 34. 6 Annex to Schiesser v. Switzerland Series A vol. 34.

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I think it is remarkable that Judge Evrigenis mentioned the psychological attributes of independence, which in this bipolar situation he does not see guaranteed. In the case De Cubber v. Belgium the European Court of Human Rights (Chamber) found on 26 October 1984 that an investigating judge could not sit on the bench of the trial judges because relating to the functions exercised and to internal organisation (the objective approach) the impartiality could be doubted. In this regard even appearances may be important. It found that Mr De Cubber was the victim of a breach of Article 6 para. 1.7 After that in its decision of 4 June 1986 the Swiss Federal Court (Public-Law Chamber) changed its jurisprudence in regard of Art. 58 of the Federal Constitution and of Art. 6 para. 1 of the Convention by referring explicitly to the De Cubber case. It held that in the future the function of investigating judge and trial judge could not be exercised by the same judge in the same proceeding. That the impartiality must be judged according to objective criteria which are proper to exclude even the appearance of partiality.8 This jurisprudence has been confirmed by the Federal Court in 1987 and 1988.9 In the latter case the Federal Court referred several times specifically to the jurisprudence of the European Court of Human Rights, taking over sometimes literally the wording of the echr.10 I go back to Article 5 para. 3 of the Convention. In the case Huber v. Switzerland the Court (Plenary) decided on 23 October 1990 under Judge Ryssdal as President with 21 votes to one that there was a breach of Article 5 para. 3 of the convention because the same Zurich District Attorney in the same case first acted as “officer authorized by law to exercise judicial power” and later as a Prosecutor.11 Only some days after this judgment the Zurich Court of Appeal ordered with an ordinance the instalment of a single judge (independent of the prosecuting authorities) to make the decisions on detention on remand. Later the Zurich Code of Criminal Procedure of 1991 installed the same single judge in § 61 to decide on detention on remand.12

7 8 9 10 11 12

De Cubber v. Belgium Series A, vol. 86 para. 30, 35. BGE 112 Ia 290, 294. BGE 113 Ia 172 ff. and BGE 114 Ia 50 ff. BGE 114 Ia 54, 56, 60, 65. Series A vol. 188 para. 42, 43. Mark E. Villiger, op. cit. p. 224, N. 357.

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II Conclusion Since 1 January 2011 Switzerland has a Code of Criminal Procedure which is valid for the whole Confederation and detached the 26 Codes of Criminal Procedure of the Cantons. Article 225 of this code assigns a court to decide on detention on remand.13 Under the influence of the Jurisprudence of the European Court of Human Rights many Swiss Cantons as well as many European countries had to change their Constitution of the Courts acts to fulfil the requirements of the Convention and to take a step forward and away from their inquisitorial tradition.14 13 Swiss Code of Criminal Procedure of fifth October 2007, SR 312.0. 14 Niklaus Schmid, Strafprozessrecht, Eine Einführung auf der Grundlage des Strafprozessrechtes des Kantons Zürich und des Bundes, fourth ed., Zürich 2004, p. 245, N. 696.

Part seven Judicial Selection

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chapter TWENTY-FIVE

Recent Developments in Judicial Elections in the United States and their Impact on the Impartiality of Judges* Chandra R. de Silva** I Introduction Writing on impartiality in 1966, Jeffrey M. Sharman emphasized that “Judges are expected to be impartial arbiters so those legal disputes are decided according to the law free from the influence of bias or prejudice, or political pressure.”1 Writing some forty years later, Sarah Cravens agreed, “At the most basic level, the judge’s task is to decide cases according to the law, and therefore implicitly, not according to something else, whether that ‘something else’ be personal bias, agenda, whim, or any of a number of other unacceptable bases. This is what is typically or conventionally meant by ‘impartiality’.”2 Yet, the issue might not be as simple as that. While judges are expected to be open to the claims of all disputants, such openness might be constrained by legal and societal values enshrined in a particular set of laws. As William Lucy has pointed out “impartiality in adjudication, like impartiality elsewhere, exists within the context of partiality: in the case of judges, it is partiality to the rules, standards and values that constitute the legal system. There is no guarantee that these rules, standards and values will always be morally and politically respectable.”3 Also, judges sometimes interpret and apply loosely defined legal

* I am most grateful for the comments and suggestions on the first draft of this paper by my Old Dominion University colleague, Elizabeth Esinhart. ** Professor of History and Vice Provost for Faculty Development at Old Dominion University. He has written extensively on contemporary education, ethnicity, politics and law. 1 Jeffrey M. Sharman, Judicial Ethics: Independence, Impartiality, and Integrity, National Center for State Courts, Williamsburg, VA 1966, p. 15. 2 Sarah M.R. Cravens, Impartiality: Balancing Personal and Professional Integrity in Judicial Decisionmaking, in Professional Ethics and Personal Integrity, 21–43 (Tim Dare and W. Bradley Wendel eds., Cambridge Scholars 2010) Viewed at http://works.bepress.com/cgi/viewcontent .cgi?article=1001&context=sarah_cravens Quotation from p. 2). 3 William Lucy, The Possibility of Impartiality, Oxford Journal of Legal Studies, 25 (1), 2005, p. 15.

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rules, and their decisions are influenced by their own views and beliefs about law and public policy. Then again, in a democracy there is the argument that judges should be accountable to the people. Achieving a balance between judicial accountability and judicial independence is always a difficult one. These are some of the reasons why the preservation of impartiality of judges continues to be a challenging task. One of the major recent challenges to preserving impartiality (or the appearance of impartiality) in the United States has come in the form of changing campaign rules relating to the election of state judges. There are five different ways in which state judges are appointed and reappointed in the United States and some states use different systems of selection for different courts.4 First, in two states (Virginia and South Carolina) judges are appointed by the legislature. Secondly, in twenty states, judges are appointed by the State Governor, sometimes with the consent of the state legislature and in some cases in concert with a judicial nominating commission.5 Then, there are fifteen states which have adopted a hybrid system (generally termed the Missouri Plan) through which vacancies are filled by the Governor from a list submitted by a nominating committee (and sometimes confirmed by the legislature or part of it), but where judges face a retaining election after a fixed term. At such retaining elections, judges have to win a majority of votes (in some states more than 50%) to keep their positions. Fourthly, twenty states use non-partisan elections to choose some of their judges. Finally, eleven states use partisan elections. In partisan elections, judges contest under party political labels with the support of state or local political organizations. This paper is primarily concerned with the selection of judges in thirty one of the fifty states in the US which use partisan or non-partisan elections to select some or all of their judges.6 In these states, after a period of service, some judges also face re-election campaigns in which they can be faced with challenges. Concerns relating to the politicization of such elections and their impact on the impartiality of judges have increased after two landmark US Supreme Court decisions in the past decade. The first, Republican Party of Minnesota v. White, dealt with the right of candidates for judicial election to 4 For an overview see Laurence Baum, American Courts: Process and Policy, Fourth Edition, Boston: Houghton Mifflin, 1998, pp. 114–131. 5 In these states, State Governors are normally empowered to make interim appointments until the expiration of the term. 6 The American Judicature Society provides an analysis of appointment and retention methods state by state. See http://www.judicialselection.us/judicial_selection/methods/ selection_of_judges.cfm?state=.

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“announce” their views on disputed legal and political issues.7 The second, Citizens United v. Federal Election Commission,8 decided eight years later, impacted the issue of campaign contributions. Combined with some related developments such as the growth of the political partisan divide, these two decisions have stimulated a continuing debate on the impartiality of judges in state courts in the US, particularly in the case of the states which use elections for the appointment and re-election of judges.9 II Background: Minnesota v. White (2002) and Citizens United v FEC (2010) Since 1858, the Minnesota State Constitution has provided for the selection of all state judges by popular election.10 After 1912, these elections have been nonpartisan, and after 1974, they have been subject to a legal restriction which states that a “candidate for a judicial office, including an incumbent judge,” shall not “announce his or her views on disputed legal or political issues.”11 This prohibition, designed to ensure the appearance of impartiality among judges, is known as the announce clause. Those who violated this ban were subject to penalties.12 In June 2002, the US Supreme Court in Republican Party of Minnesota v. White, in a five-to-four decision, invalidated the announce clause. Before the issue was brought before the US Supreme Court, both the district court and the Eighth Circuit Court had accepted that the Minnesota “announce clause” was enacted as a justifiable attempt to preserve both the actual impartiality of judges and the appearance of impartiality of the state judiciary, and in addition, was narrowly tailored, and served a “compelling 7 8 9

10 11 12

536 U.S. 765 (2002). 558 U.S. 50 (2010). The 31 states which use elections to appoint at least some of their judges include Alabama, Arizona, Arkansas, California, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Washington, West Virginia and Wisconsin. In addition, the following eight states use elections solely to decide whether judges should retain their position: Alaska, Colorado, Iowa, Kansas, Maryland, Nebraska, Utah and Wisconsin. Minnesota Constitution, Art. VI, § 7. Canon 5 of the Minnesota Code of Judicial Conduct. Minnesota Rules of Board on Judicial Standards 4(a)(6), 11(d) (2002); Minnesota Rules of Professional Conduct 8.2(b) (2002); Minnesota Rules on Lawyers Professional Responsibility 8–14, 15(a) (2002).

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state interest.”13 The Supreme Court, however, reversed this verdict holding that the announce clause violated the First Amendment free-speech rights of judicial candidates.14 The issue had arisen when Gregory Wersal, campaigning for a position in the Supreme Court in 1998, had sought an opinion from the Board as to whether it would enforce the announce clause.15 When the Board declined to give an opinion, Wersal, joined by the Republican Party of Minnesota, challenged the announce clause in federal court as a violation of his First Amendment free speech rights. In its decision, the Supreme Court stated that even if judicial impartiality is a compelling state interest, that interest should not be advanced by campaign speech restrictions that violated the First Amendment. The Court also stressed the importance of enabling judicial candidates to communicate to the voters on disputed political and legal questions.16 It rejected the notion that greater regulation of judicial elections than other elections was countenanced by the First Amendment. Eight years later came the Citizens United v. Federal Election Commission decision relating to contributions to judicial elections. Questions have existed for many years on the extent to which contributions to judicial elections reflect adversely on the perception of impartiality of judges. In 1971, Congress consolidated federal campaign finance statutes into the Federal Election Campaign Act (feca). The feca, as subsequently amended in 1974, regulated campaign spending and set up bars against corporate contributions. In the 1976 judgment on Buckley v. Valeo, the Supreme Court had upheld restrictions on contributions on grounds of reducing corruption but removed restrictions on 13 14

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Republican Party v. Kelly, 63 F.Supp.2d 967, 974–83 (D.Minn. 1999). 536 U.S. 765 (2002) 775–783. For analyses of the decision see Brendan H. Chandonnet, The Increasing Politicization of the American Judiciary: Republican Party of Minnesota v. White and its Effects on Future Judicial Selection in State Courts, William & Mary Bill of Rights Journal, 12, pp. 577–604, (2004), http://scholarship.law.wm.edu/wmborj/vol12/ iss2/9; Ofer Raban, Judicial Impartiality and the Regulation of Judicial Election Campaigns, University of Florida Journal of Law & Public Policy, 15, pp. 205–228, (2004), http://law.uoregon.edu/assets/facultydocs/ofer/judicialimpartialityandjudicialelections .pdf; Ofer Raban, The Supreme Court’s Endorsement of a Politicized Judiciary: A Philosophical Critique, Journal of Law in Society, 8, 114 (2007),http://law.uoregon.edu/ assets/facultydocs/ofer/scendorsementofpoliticizedjudiciary.pdf. Wersal had criticized some Minnesota Supreme Court decisions on crime, abortion and welfare when contesting a previous election for associate justice of the Court in 1996. A complaint filed against Wersal with the Board of Lawyers Professional Responsibility, charging that he violated the announce clause was dismissed, but Wersal gave up his campaign in that year. 536 U.S. 765 (2002) 784–788.

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expenditures as a protection of free speech. Sixteen years later, in Austin v. Michigan Chamber of Commerce, the Supreme Court went further and upheld a ban on independent corporate expenditures to prevent corruption. In 2002, the Bipartisan Campaign Reform Act (also known as the McCain-Feingold Act) amended the feca to prohibit corporations and unions from using their general treasury funds to finance electioneering communications within thirty days of a primary or sixty days of a general election.17 The position was changed by the January 21, 2010 decision of the U.S. Supreme Court in Citizens United v. Federal Election Commission. The issue had arisen out of a 2008 television documentary funded by a group called Citizens United18 criticizing Hillary Clinton who was candidate for President. On appeal, the U.S. Supreme Court declared unconstitutional the bcra provision that prohibited corporations or unions from using their general treasury funds to pay for communications advocating the election or defeat of a candidate on the grounds that it violated the First Amendment right to “free speech.”19 The next section will provide a discussion on the implications of these decisions in relation to judicial elections. III Implications There is no doubt that special restrictions on judicial candidates deny them opportunity to speak about some of the questions that may be most significant to their candidacies. As Richard Briffault points out, “If candidates cannot speak freely about contested legal issues, work with their parties, and raise money personally, their ability to campaign effectively may be undermined…. These restrictions may make it more difficult to get the public interested in judicial campaigns. This burden weighs particularly heavily on challengers, who are likely to lack even the limited name recognition that the incumbents enjoy. The less the candidates can say or do, the less competitive the elections 17 18

19

Bipartisan Campaign Reform Act (bcra) of 2002, 2 U.S.C. § 441b; several parts of the bcra were challenged but upheld in the case of McConnell v. FEC 540 U.S. 93 (2003). Citizens United was founded by Floyd Brown who in 1988 led the political action committee that produces the Wille Horton commercial to support George Bush’s presidential campaign. In 1992, Brown he hired David Bossie who became president of Citizens United in 2000. Citizens United v. FEC, 558 US 50. For an account of how the decision was reached, see Jeffrey Toobin, Money Unlimited: How Chief Justice Roberts orchestrated the Citizens United decision, The New Yorker, May 21, 2012, pp. 36–47.

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are likely to be.”20 This is supported by the historically low turnout in judicial elections. Candidate speech restrictions also limit voter information. With limited media coverage of judicial elections, voters obtain virtually all their information about judicial candidates from the candidates themselves or from special  interest organizations. The argument is that since the decisions of judges are affected by their own views and beliefs about law and public policy information about those views are relevant in decisions to appoint them whether through a governor, the legislature or the voters. This argument is probably more applicable to judges at the State Supreme Court level than for those at lower levels but it emphasizes the importance of accountability of judges. Furthermore, “If candidates cannot speak freely about contested legal issues, work with their parties, and raise money personally, their ability to campaign effectively may be undermined… This burden weighs particularly  heavily on challengers, who are likely to lack even the limited name recognition that the incumbents enjoy. The less the candidates can say or do, the less competitive the elections are likely to be.”21 Even as late as 2004, 83% of the judicial elections in the 2nd Judicial District of Minnesota were uncontested.22 On the other hand, campaign statements by judicial candidates, can undermine judicial impartiality if such statements show that the candidate has predetermined how to act in specific cases. The judiciary is conventionally seen as requiring more independence from political pressures than the other branches of government particularly because it is entrusted with protecting constitutional rights of minorities and the rule of law.23 Criticism in law reviews is abundant. Ferejohn and Kramer wrote, “Separating the judiciary from the other branches of government means little if judges are then subjected directly to the very same pressures that caused us to mistrust executive and legislative

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Richard Briffault, “Judicial Campaign Codes After Republican Party of Minnesota v. White,” Columbia Public Law & Legal Theory Working Papers, Paper 0481. (2004) p. 197 http://lsr .nellco.org/columbia_pllt/0481. Briffault, Ibid. David A. Schultz, Judicial Selection in Minnesota: Options After Republican Party v. White, Bench & Bar of Minnesota, 62(10) (2005), http://www2.mnbar.org/benchandbar/2005/nov05 For evidence relating to earlier periods see G. Alan Tarr, Judicial Process and Judicial Policymaking, Belmont, Third Edition, CA: Thompson Wadsworth, 2003 pp. 62–64. Briffault, Ibid, pp. 199–200. “Judging is political, but it still must be undertaken apart from politics.” Ibid, p. 201.

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influence in the first place.”24 Robert C. Bemess commented, “What is at stake here is no less than the promise of fairness, impartiality, and ultimately of due process for those whose lives and fortunes depend upon judges being selected by means that are not fully subject to the vagaries of American politics.”25 On the other hand, a recent study of lower court elections in six states suggests that the messages in judicial election campaigns after White did not differ very much from what was stated before 2002.26 This may be less true of State Supreme Court elections which have become more politicized. There were calls for moving from judicial elections to selections by the governor or the legislature or by a panel,27 but there was no groundswell of political support for such a change. There have been spirited defenses of judicial elections.28 There is recognition that politics continue to play a part in judicial nomination commissions that advise State Governors on appointments to judgeships even if the politics are a contest between plaintiff lawyers and defense lawyers to secure judges favorable to their interests. However, attempts to modify state codes of conduct in areas beyond the announce clause have gained some traction. One such area was the “Pledges and Promises Clause.” Codes of judicial ethics in many states prohibit “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.” While this clause was upheld in New York, Pennsylvania and Florida it was struck down in Alaska and North Dakota.29 The Georgia and the North Carolina Codes of Judicial Conduct removed prohibitions against pledges or promises by candidates and the personal solicitation of campaign 24 John A. Ferejohn & Larry D. Kramer, Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint, New York University Law Review, 77, p. 962 (2002). 25 Robert C. Bemess, Note, Norms of Judicial Behavior: Understanding Restrictions on Judicial Candidate Speech in the Age of Attack Politics, Rutgers Law Review, 53 p. 1027 (2001). 26 See Brian K. Arbour and Mark J. McKenzie, Campaign Messages in Lower Court Elections after Republican Party of Minnesota v White, The Justice System Journal, 32(1), 2011, pp. 1–32. 27 Donald L. Burnett, A Cancer on the Republic: The Assault Upon Impartiality of State Courts and the Challenge to Judicial Selection, Fordham Urban Law Journal, 34 265–290 (2001) esp. 283–287; Seth Andersen, Examining the Decline in Support for Merit Selection in the States, Albany Law Review, 67, pp. 793–804 (2004). 28 See for instance, Chris W. Bonneau and Melinda Gann Hall, In Defense of Judicial Elections, New York, Routledge, 2009. 29 See, James Sample, David Pozen and Michael Young, Fair Courts: Setting Recusal Standards, Brennan Center for Justice, 2008, fn. 35 http://www.brennancenter.org/ content/resource/fair_courts_setting_recusal_standards/.

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contributions.30 There also have been efforts to rethink the “commit clause.” This refers to a prohibition of “statements that commit or appear to commit the candidate with respect to cases, controversies, or issues that are likely to come before the court.” The California Code of Judicial Ethics31 no longer prohibits statements that “appear to commit” candidates for judicial elections although it still bars them from making statements “that commit the candidate with respect to cases, controversies, or issues that could come before the courts.” The Eighth Circuit also struck down Minnesota’s ban on affiliation of judicial candidates with political parties (the so-called partisan activities clause).32 The Eleventh Circuit went further in invalidating Georgia’s ban on partisan activities. In its judgment the court stated “[W]e believe that the Supreme Court’s decision in White suggests that the standard for judicial elections should be the same as a standard for legislative and executive elections.”33 There is an argument for loosening the bans on judicial speech. As Cravens explained, “After all, keeping judges from speaking about their beliefs will not keep them from having beliefs, and to a certain extent those beliefs will come into their judging, so perhaps more transparency would be a good thing for promoting impartiality. Restraint from dialogue about those views may even work to prevent a certain amount of the potential entrenchment of position that could make impartiality harder to achieve. Separation may be the ideal, but it would be a mistake to promote that ideal at the expense of keeping judges on the bench who actually think about important issues. Judges should, after all, be intelligent people. They should have beliefs and interests and relationships in their personal lives. The value of actual impartiality does not have to require them to remain silent about their personal views as long as they are capable of separating their personal beliefs from their decision making on the bench, and as long as they refrain from making statements about legal conclusions in cases pending before them which would indicate a closed mind and thus an abdication of the judicial role. Limiting judicial speech off-the-bench effectively encourages judges either not to think at all, or else to be surreptitious about their thinking, rather than engaging openly in debate.” 30 31 32 33

See the North Carolina Code of Judicial Conduct, Canon 7 (amended Apr. 2, 2003) and the Georgia Code of Judicial Conduct, Canon 7B (amended Jan. 7, 2004). Canon 5 B (1) (as amended Dec. 22, 2003); for a discussion see Chandonnet, op. cit. pp. 596–601. F.3d 738 (8th Cir. 2005) at 755–756, 759, 761–762. 309 F.3d 1312 (Ga. 2002).

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While White widened the scope of political debate in judicial elections, Citizens United enabled an increased flow of funds into the arena of judicial elections. To be fair, judicial elections had been becoming increasingly expensive even before Citizens United. Spending on State Supreme Court elections rose from $83.3 million in 1990–1999 to $206.9 million in 2000–2009.34 This is not attributable solely to loosening restrictions on judicial candidates by White. As Gibson pointed out, state court elections had increasingly become the scene of contests with major political social and economic consequences.35 However, the 2010 Citizens United decision opened up a new dimension. It was now possible for non-candidate groups to raise unlimited funds from corporations to wage campaigns as long as they were ostensibly not connected to the campaign of the judicial candidate. The total amount of funding on state high court elections in 2009–10 did not rise, and this might be because it was too early for Citizens United to have much of an impact on the 2010 elections. However, even in 2009–10, groups with no accountability to candidates spent 29.8% of the funds (as against about 18% in 2005–06) and retention elections saw a substantial increase in campaign expenses. Costly television advertisements have now become essential to win judicial elections in many states.36 Given the increased flow of corporate campaign contributions to groups not officially associated with the individual campaigns in the Presidential Election of 2012 as opposed to that of 2008, a 34

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Adam Skaggs and Andrew Silver, Promoting Fair and Impartial Courts through Recusal Reform, Brennan Center for Justice, August 2011, p. 8 http://brennan.3cdn.net/ 09c926c04c9eed5290_e4m6iv2v0.pdf Skaggs and Silver also point out that “Twenty of the 22 states that hold competitive elections for judges set all-time spending records in the last decade. Meanwhile, a select group of ‘super spenders’ is outgunning small donors: in 29 of the costliest elections of the last decade, the top five spenders each averaged $473,000 per election to install judges of their choice, while all other contributors averaged only $850 apiece. Finally, a television advertising arms race has arisen, creating a need for money that only special interests can satisfy. In 2007–08, $26.6 million was spent on TV ads in elections for state high courts, the record for a two-year election cycle. In 2008, special interest groups and political parties paid for 52% of all television advertising — and 87% of negative TV ads.” James Gibson, Challenges to the Impartiality of State Supreme Courts: Legitimacy Theory and “New-Style” Judicial Campaigns, American Political Science Review, 102(1), February 2008, pp. 59–75. Adam Skaggs, Maria de Silva, Linda Casey and Charles Hall, The New Politics of Judicial Elections 2009–10: How Special Interest “Super Spenders” Threatened Impartial Justice and Emboldened Unprecedented Legislative Attacks on America’s Courts, Brennan Center for Justice, 2011, pp. 9–10.

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clear outcome of the Citizens United decision, it is likely that funding flowing to judicial elections is likely to grow substantially in the coming years. Some have argued that the Citizens United decision need not necessarily lead to the politicization of the judiciary. They point out that the Supreme Court disqualified Judge Brent Benjamin in Caperton v. A.T. Massey Coal Co. The CEO of the Massey Coal Company had spent over $3 million in support of Benjamin who was challenging an incumbent high court justice in West Virginia. This was much more than was spent by the judge’s own campaign committee and all his supporters combined. It was also at a time when Massey was appealing against a $50 million damages award. Benjamin won the election, refused to recuse himself, and cast the tie breaking vote against the award. There have been attempts by a number of states to protect the integrity of judicial elections. Utah and Arizona, have adopted ABA’s Model Code of Judicial Conduct’s rule. These states now require recusal when a party, party’s lawyer, or party’s lawyer’s law firm has contributed more than $50 to the judge within the previous three years.37 In California, under a civil procedure rule effective January 15, 2011 a judge is disqualified if she has received contributions exceeding $1500 from party or lawyer in anticipation of an upcoming election, or in connection with the judge’s preceding election (if that had occurred in the previous six years). Through an administrative rule, New York excludes judges from cases if parties or lawyers or their law firms have contributed more than $2500 in the last two years (or if, collectively, the parties, lawyers and firms have contributed $3500 in the last two years).38 Furthermore, the extension of the scope of the Citizens decision seems to have been limited. On June 28, 2012, the Fourth Circuit, in United States v. Danielczyk, upheld a ban on corporate contributions to political campaigns, thus reversing a District Court judgment that corporations should be able to make direct contributions like human beings since both are entitled to equal political speech rights.39 Judge Roger Gregory, who authored the decision of a three judge panel, wrote that the logic of Citizens United did not extend to 37 38

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Utah’s Rule 2.11(A) (4) adopted effective April 1, 2010. Skaggs and Silver, op. cit., pp. 9–12. In New York and California, these limits do not extend to funding for groups not directly connected with individual campaigns. Oklahoma, Iowa, Missouri, Michigan and Washington have also adopted rules on disqualifications. William Danielczyk Jr and Eugene Biagi, formerly were officers with two investment banks, Galen Capital Group LLC and Galen Capital Corporation. They were indicted in 2011 on charges that they used Galen funds to reimburse people more $186,000 in contributions to Clinton’s 2006 Senate race and 2008 presidential campaign. http://newsandinsight.thomsonreuters.com/Legal/News/2012/06__June/Appeals_court _upholds_ban_on_corporate_political_contributions/.

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direct contributions. “Leaping to this conclusion ignores the well-established principle that independent expenditures and direct contributions are subject to different government interests…independent expenditures by definition are direct means by which political speech enters the market. Direct contributions conversely do not necessarily fund political speech but must be transformed into speech by an individual other than the contributor.” On the other hand, the Eighth Circuit held that Minnesota’s solicitation clause40 was unconstitutional to the extent that it prohibited candidates from signing solicitation letters and making campaign appeals before large groups.41 There are disturbing questions that have been raised on the influence of campaign contributions. According to a study of the Louisiana Supreme Court by Vernon Valentine Palmer and John Levendis, in a 14-year period ending in 2006, justices voted in favor of their contributors 65% of the time, and two justices did so 80% of the time.42 The authors concluded that the greater the value of the contribution, the greater was the chance of a favorable outcome for the litigant. A 12-year study of Ohio Supreme Court rulings indicated that Ohio justices voted in favor of their contributors more than 70% of the time, with Judge Terrence O’Donnell, voting with his contributors 91% of the time.43 Public confidence in the impartiality of judges in cases where one of the litigants contributed to the judge’s election is low and might be dropping. A 2009 Harris Interactive National Opinion Poll on Judges and Money revealed that 68% doubted the judge’s impartiality if the contribution was $50,000 and 73% if the contribution was a million dollars. In response to a question in the 2010 Harris Poll in 2010 on how much influence campaign contributions made to judges have on their decisions, 36% said “A Great Deal” and 35% more “Some.” Responses to a similar question in the 2011 20/20 Insight Public Opinion Poll on Special Interest Spending in Contested Judicial Elections saw “A Great Deal”

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F.3d 738 (8th Cir. 2005). Sample, Pozen and Young, op. cit., p. 16; See also Raban, Judicial Impartiality, op. cit. pp. 222–225. Vernon Parmer and John Levendis, The Louisiana Supreme Court in Question: an Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function, Tulane Law Review, 82, p. 1291 (2008). Adam Liptak & Janet Roberts, Campaign Cash Mirrors a High Court’s Rulings, New York Times, October 1, 2006, at A1. For other studies see Sample Pozen and Young, op. cit. pp. 11–12 and Michael S. Kang and Joanna Shepherd, The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions, New York University Law Review, 86, 69 (2011).

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response go up to 50% and “Some” to 33%.44 Scholars have raised concerns about the possibilities of the corruption of justice in such situations.45 Much of the attention has been drawn to cases of reelection of judges. This is because the evidence indicates that historically, a very high proportion of judges are retained in retention elections (where judges do not face opponents).46 However, the issue of funding could also affect retention elections in the coming years. For instance in Iowa in 2009/10, three judges, Chief Justice Marsha Ternus and Justices David Baker and Michael Streit were rejected in a retention election after Iowa for Freedom and connected anti-gay groups such as the American Family Association sponsored TV advertisements criticizing the judges for their votes in striking Iowa’s ban on same-sex marriage in Varnum v. Brien.47 Other judges who had supported the decision have been notified to expect a similar campaign to derail their retention in 2012 and in 2014. Minnesota congresswoman Michelle Bachman applauded the success in 2012 calling the judges “black robed monsters.”48 IV

The Way Forward

One approach to restoring public confidence is strengthening the norms for disqualification and recusal. Rule 2.11(A) of the ABA’s Model Code of Judicial Conduct states “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” and this standard is adopted in 47 of the 50 states.49 In a third of the states, litigants may disqualify a judge without showing cause. The extension of the right to peremptory disqualification to all states has been advocated by some scholars as a step in the right direction.50 In many states, motions for disqualification are seldom 44 45

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For detailed poll data see http://www.justiceatstake.org/resources/justice. Ofer Raban, Institutionalizing Corruption: Citizens United, Its Conceptions of Political Corruption, and the Implications for Judicial Elections Campaigns, University of South Florida Law Review, 46, pp. 479–502, (2011). http://law.uoregon.edu/assets/facultydocs/ ofer/raban.pdf. Larry Aspin, Trends in Judicial Retention Elections, 1964–1998, Judicature, 83, 1999, pp. 79–81; Melinda Gates Hall, State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform, American Political Science Review, 95, 2001, 317–319. Skaggs, de Silva, Casey and Hall, op. cit., p. 9. Andy Barr, Michele Bachmann Calls Judges “Black- Robed Masters” in Iowa, Politico (March 23, 2011), available at http://www.politico.com/news/stories/0311/51847.html. The exceptions are Michigan, Montana, and Texas, see Sample Pozen and Young, op. cit. pp. 16–18. Sample, Pozen and Young, op. cit., p. 6.

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used because decisions on such motions are left to the judges who are challenged and thus this procedure does involve some risk to the litigant. Skaggs and Silver point out “states must provide for review of recusal motions by neutral judges, so that a challenged judge doesn’t have the last, only word on whether to step aside. To facilitate meaningful review, states should require reasoned, transparent decisions on recusal requests.”51 On the other hand, expansion of the right to peremptory disqualification could encourage misuse of the process for partisan advantage. Dimitry Bam has pointed out that recusal and disqualification are insufficient to address the issue of the appearance of impartiality. In his words, “I challenge the long-accepted and virtually uncontroverted assumption that a judge’s recusal can eliminate the appearance of impartiality. To the contrary, I argue that the mere act of recusal is an ineffective way to restore the public’s confidence in the courts, in part because it comes much too late…. Furthermore, I argue that making appearance-based recusal decisions in individual cases on an ad hoc basis may not create an appearance of impartiality, no matter the substantive standard.”52 He points out “In the rare circumstances when judicial recusals (as opposed to nonrecusals) actually receive public scrutiny, the attention is generally negative, often focusing on the underlying judicial conduct that necessitated recusal in the first place.”53 While recognizing that recusal is important he suggests an “attention shift toward the rules, regulations, and procedures that precede the recusal decision.”54 These procedures could include clearer financial disclosure rules and laws covering judges, clients and counsel.55 Placing all judicial campaign contributions in a blind trust has been suggested as a possible safeguard against bias and the appearance of bias.56 However, it would be difficult to ensure that donations to blind trusts would be kept secret if the donors wished to convey that information to the candidate. Public financing of judicial elections is another measure that has been widely advocated but while it remains in effect in North Carolina, it was abandoned by Wisconsin in 2011 and was not financed in 2012 in West Virginia.57 Voters could be assisted by an evaluation 51 52 53 54 55 56 57

Skaggs and Silver, op. cit. p. 2. See also Sample, Pozen and Young, Ibid. Dmitry Bam, Making Appearances Matter: Recusal and the Appearance of Bias, Brigham Young University Law Review, 2011, p. 950. Ibid., p. 979. Ibid., pp. 948–9. Skaggs and Silver, op. cit., p. 15; Sample, Pozen and Young, op. cit., p. 6.; Bam, op. cit., p. 985. Ian Ayres & Jeremy Bulow, The Donation Booth: Mandating Donor Anonymity to Disrupt the Market for Political Influence, 50 Stanford Law Review, 50, pp. 837, 853 (1998). Skaggs, de Silva, Casey and Hall, op. cit., p. 30.

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of the performance of incumbent judges performed by a nonpartisan citizen commission immediately before retention elections. Alaska has had this in operation since 1975.58 It has been also suggested that ongoing seminars and workshops on the appearance of impartiality and advice on “best practices” might assist judges to make more informed decisions.59 It is also possible to craft laws that might prevent excesses envisaged by critics of the Citizens United decision. Justin Levitt has suggested rules such as those “that might prevent a single entity, or entities acting in concert, from consuming more than x percent of the available space within a given medium in a given period.”60 Ultimately, what is at issue is a rift in the basic understanding of the constitutional structure in the United States. For those who support freer (and even partisan) speech by judges during elections and the removal of regulations on campaign spending, such measures are necessary means of ensuring democratic responsiveness (accountability). For those who support tighter rules on judges participating in the political arena and limiting the influence of corporations and unions in judicial elections (advocates of judicial independence), both White and Citizens United undermine democracy by opening the judiciary to influence by powerful external interests. Clearly the first view has gained some political ground in the first decade of the twenty first century. Seventeen years ago, Paul Webster concluded that “Empirical work suggests that the method of selection has little, if any, effect on the overall quality of the judges.”61 With the increasing influx of money into judicial elections, the challenge in the coming years will be to devise ways through which the state court system would be able to make the same claim in the coming years. We could be looking at continuing political battles on campaign finance law in the next decade.62 58 59

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Suzanne di Pietro, Teresa W. Carns and William T. Cotton, Judicial Qualifications and Judicial Performance: Is there a Relationship? Judicature, 85, 2002, pp. 218–226. See article on the vulnerability of judges to five common cognitive illusions by Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich, Inside the Judicial Mind, Cornell Law Review, 86, 2001, p. 777. Justin Levitt, Confronting the Impact of Citizens United, Yale Law and Policy Review, 29, 2010, p. 224. Peter D. Webster, Selection and Retention of Judges: Is there one “best” method?, Florida State University Law Review, 23, 1995, p. 15; Laurence Baum, Electing Judges in Contemplating Courts, ed. Lee Epstein, Washington DC: Congressional Quarterly Press, 1995, p. 42. Michael S. Kang, After Citizens United, Indiana Law Review, 44, 2010, pp. 243–254.

Chapter TWENTY-SIX

Culture and Judicial Independence in Civil Procedure* Dmitry Maleshin** I Introduction Several events have occurred at the turn of the century that have affected legislation as well as doctrine. They have occurred not only in the field of law, but also in other spheres: economics and culture, in the context of integration and globalization. This process affected different legal branches aside from civil procedural law: first, it affected legislation, the English Woolf reform serving as a good example; and second, it affected doctrine, as seen by the European soft slide towards several common law constructions. Dramatic legal changes in post-Soviet countries are good illustrations of this process as well. Civil procedure in different parts of the world is under great pressure because of cultural diversity. This process became very impressive during the last decades. While legislation became very similar in Europe and Asia, there is a big gap in the real practice of civil justice between Europe and Asia and other parts of the world. Globalisation is not a good word to use with respect to law and civil procedure, although in the contemporary highly interactive and cooperative world, national frontiers in law and civil procedure become very transparent. On the other hand, national character has become much more

*

**

This article is based on the ideas presented by the author on March 22, 2012 in the report “Globalisation of Civil Procedure” on the conference “The International Conference of Judicial Independence and Globalisation” organized by City University of Hong Kong. Professor of Civil Procedural Law at Moscow State Lomonosov University. He has been a Visiting Scholar at Yale Law School (2004) and Harvard Law School (2008). He is a member of the Council of International Association of Procedural Law and the International Law Association Civil Litigation Committee; International Society of Legal Scholars; Russian Association of International Law; etc. Member of a number of official drafting groups concerning civil procedure and education legislation. Member of Academic council of Federal Bailiff Service, Federal Notary Public Chamber, Moscow Arbitrazh Court, etc. Author of more than 100 academic publications in Russian, English and French. He has written on Russian civil procedure, comparative civil procedure, law and culture.

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glaring. As a result, civil procedure nowdays has two opposite trends: legislation becomes closer and similar, but there are many differences in real civil justice in the realization of this similar legislation. Justice in Europe, Asia and America differs from each other no less than centuries ago, even as legislation has become similar. The reason is cultural difference. It couldn’t be erased even in the globalisation era. Therefore nowdays we have a unique situation: legislation is similar, but practice is different. We can ascertain many facts and find proof that legal systems are beginning to become closer to each other. Common law is more attractive for business, while civil law is more practiced in international relations. In this situation many scholars state that previous procedural diversity no longer exists. They argue that we can find more similarities than differences. At the same time I would like to prove that cultural diversity is continuing to be one of the most crucial factors that differentiates one procedural system from another. There are still some differences between them. They are not the same that they were in the 19th century, but they still exist. What are they? My main idea is that presently the frontier is lying not in the field of legislation or doctrine, but instead mainly in the area of practice and legal culture and what we call the spirit of law. II

Cultural Influence on Civil Procedure

Most of you I think could accept my view that civil procedural legislation in different countries begins to be very similar. Good examples are Japan as well as some other countries in East Asia. Legislation there takes its roots in the German Code of Civil Procedure of 1877. But if we are considering practice in Germany and Japan, we should also state that there are two different systems. We can’t even compare them even though legislation is very similar. What is the reason? From my point of view, the main reason is the legal culture. It differs in Germany and Japan. That’s why practice is different too. Culture influences the process of law enforcement, and as a result we have different civil procedural systems. At the same time, in most classical works Japan belongs to the civil law system, but as we have ascertained the differences in legal culture, it is not correct. The link between culture and civil procedure is the following: culture – legal culture – practice – civil procedural system. Law is a form of social control,1 but 1 Pound R., An Introduction to the Philosophy of Law. New Haven. 1925; Vago S., Law and Society. New Jersey. 2003. P. 4, 19; Cairns H., The Theory of Legal Science. New York. 1941. P. 22.

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it is not the only one. There are some other nonlegal and informal mechanisms of social control. There is a widespread notion that the law is more effective in the societies with complex social structure. Following this point of view, we can make the interference that law is only ineffective in the “non-civilized” societies. In reality, in some societies law is not as effective as other mechanism of social control. Some mechanisms of social control, such as shaming or open disapproval, could be more effective in some societies. For example, in Japan and other countries of Asia, law is less effective in social regulation than nonlegal mechanisms. Nevertheless these countries can’t be treated as “non-civilized,” they are some of the world’s most industrialized nations. Their systems of nonlegal social control discourage antisocial conduct more effectively than any legal system. Sometimes the legal conquest was the best way to destroy the power of the previous elites.2 The problem is that some societies are more adapted for legal regulation than others. From my point of view, contemporary law as a form of social control has been created in the political, economic and social circumstances of European culture. Due to the historical expansion of Western civilization (based on the technological advantages) it was widespread all over the world. It is necessary to note that the reception of law as a form of social control wasn’t voluntary in most cases. It was enacted with external force like in most cases of common law reception3 or with internal adaption by the “civilized” governor of continental law. In such societies legal regulation is treated by the majority of their members as an alien element of social control.4 The majority of the members tend merely to acknowledge the existence of legal regulation, trying as long as possible to avoid any contact with the legal system. It is better for them not to be involved at all in the legal process whether one is guilty or innocent. It implies the degree of fear and even lack of confidence which these people have for legal regulation. It is obvious in these circumstances that law as a form of social control is more effective in the societies where it was created, than in those where it was implanted as an alien element. Nevertheless, in the modern period, law is widespread all over the world as the main mechanism of social control. In some countries it is effective, in others – not. Law should reflect the social, 2 L.M. Friedman, Legal Culture and Social Development, 4 Law and Society Review. (1969) P. 43. 3 See, e.g.: Purdy J.M., Common Law and Colonized Peoples. Aldershot. (1997). 4 See: Oloruntimehin O., The Status of Informal Social Control and Dispute Resolution – An analysis of African Societies in Sebba L. (ed.), Social Control and Justice. Jerusalem. 1996. P. 332–342.

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economic, and political climate of the society. Law of one society differs from that of another by legal culture.5 In Western societies it is assumed that legal behavior is the measure of moral behavior. The subject is different in collectivistic societies. There is a very big gap between the law and reality in many collectivistic societies. Japan is a good example of a collectivistic society. The Japanese tradition of emphasizing the ascendency of the group interest over the individual interests of its members takes its root from the Confucian thought. The primacy of group interests is one of the most important pillars of Japanese society.6 Dispute resolution is a reflection of the culture in which it is embedded7; it reflects and expresses its metaphysics, values,8 psychological imperatives, histories, economics, and political and social organization.9 Western society is litigation-oriented. In contrast, traditional and collectivistic societies don’t use formal dispute resolution. They prefer conciliation or mediation by moral or divine authority. In Japan, the rates of litigation and adjudication are extremely low. The main reason for this is the desire to minimize the use of law.10 The total number of judges has not increased since 1890, so that now there is only one judge for every 60,000 persons, compared to one for every 22,000 in 1890. Disputes are generally settled out of courts. Japanese prefer conciliation and mediation, which agree with Confucian thought. Reputation is one of the mechanisms of social control. To lose face in Japan is to lose trust and cooperation and to invite ostracism – a personal and social disaster comparable to imprisonment in Western societies.11 Litigation divides the parties definitively into winner and loser; in contrast, conciliation teaches both parties their duties in order to restore harmony between them. For these reasons, litigation is not popular in Japan.

5 6 7 8 9 10 11

Vago S., Law and Society. New Jersey. (2003). P. 3. Kim C., Lawson C.M., The Law of the Subtle Mind: the Traditional Japanese Conception of Law in Varga C. (ed.), Comparative Legal Cultures. New York. 1992. P. 282. Chase O.G., Law, Culture, and Ritual. Disputing Systems in Cross-Cultural Context. New York. 2005. P. 2. Chase O.G., American “Exceptionalism” and Comparative Procedure, 50 American Journal of Comparative Law. (2002). P. 278. W.L.F. Felstiner, Influences of Social Organization on Dispute Processing, 9 Law and Society Review. (1974). P. 63. Kim C., Lawson C.M., The Law of the Subtle Mind: the Traditional Japanese Conception of Law in Varga C. (ed.), Comperative Legal Cultures. New York. (1992). P. 275, 290–294. Black D., Sociological Justice. New York, Oxford. (1989). P. 85.

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Japan and Germany are just two of the examples. There are many others that also demonstrate the role of legal culture. Most of the national reports of our session give us concrete facts and examples. Similar to Japan is the situation in China. Three philosophical traditions affect the legal regulations in China: the Confucian, the Legalist, and the Buddhist.12 According to Confucian ethics, disputes should be settled privately, involving third parties. If the disputants do bring their problem to court, the assumption is that both of them are being stubborn, uncompromising people who are unable to sacrifice their personal interests for the peace of the community. Therefore judicial proceedings are unpleasant for most people, and they try to avoid them.13 Moreover in China until the end of the nineteenth century, the term “rule of law” had a negative connotation.14 In African societies 60% of all disputes are settled through informal means such as third party mediation by members of the family, friends, neighbors, ward heads, chiefs, etc.15 There are different reasons for this. First, they are scared of the legal process and try to avoid it. Second, the legal process is too time-consuming. Third, they have no confidence in the legal system. In some counties dualistic system exists. Native ethnic groups settle disputes through the use of customs, which differ from the law applied at the center.16 The most significant example of how culture could affect civil procedure is the Russian legal system. Russian civil procedure is not simply a continental or Anglo-Saxon system possessing only classical civil and common law features, but a unique system possessing exceptional features that do not exist in either of these traditional approaches.17 There were different periods in Russia’s history when lawmakers introduced continental or Anglo-Saxon features of civil procedure. For example, the 1864 Imperial Code introduced the common law passivity of the court in the process of proof-taking. The Soviet civil procedure should be viewed as a radical solution to the continental model. In 1995, the common law passivity of the court was re-introduced, but only remained in effect until 2002. 12 13 14 15 16 17

Lee L.T., Lai W.W., The Chinese Conceptions of Law: Confucian, Legalist, and Buddhist in Varga C. (ed.), Comperative Legal Cultures. New York. (1992). P. 225–247. Bracey D.H., Exploring Law and Culture. Long Grove. (2006). P. 35. Bracey D.H., Exploring Law and Culture. Long Grove. (2006). P. 35. Oloruntimehin O., The Status of Informal Social Control and Dispute Resolution – An analysis of African Societies in Sebba L. (ed.), Social Control and Justice. Jerusalem. 1996. P. 338. L.M. Friedman, Legal Culture and Social Development, 4 Law and Society Review. (1969) P. 31. See Maleshin D., The Russian Style of Civil Procedure, Emory International Law Review Vol. 21 No. 2 (2007). P. 543–562.

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Disrespect of the rule of law in Russia has been noted by many scholars.18 However, I believe the reason for it is not unwillingness of Russian citizens to obey rules of law, but the conflict between the legislation and the social relations of the society. The law can’t be simply exported and imported. It is always necessary to take into account cultural specificity of a society. Yet Montesquieu noted that “laws should be in such compliance with features of nation, for which they are made, that only in very rare cases laws of one nation might become applicable for another.”19 It is noted by many researchers that there is a strong connection between culture and law,20 especially civil procedural law.21 In the modern environment, in the epoch of globalization and creation of the multi-polar culture, this method becomes especially important. The tasks of the modern Russian legislator are to conduct detailed research about the moral ideas of the Russian citizens and to create rules of law which reflect the demands of both the society as a whole and its individual members. Russian law should take into account both individualistic and collectivistic traditions, as well as ideas and moral views that exist in Russian

18

See, C. Hendley, Rewriting the Rules of the Game in Russia: The Neglected Issue of the Demand for Law, East European Constitutional Review. Vol. 8. (1999) P. 94; C. Hendley, “Demand” for the Law in Russia – A Mixed Picture, 10 East European Constitutional Review (2001) P. 72–77; V.A. Tumanov, О правовом нигилизме [On the legal nigilisme], Советское государство и право [Soviet state and law], No. 10, (1989). P. 21. 19 [Montesquieu], De l’esprit des loix, ou du rapport que les loix doivent avoir avec la Constitution de chaque Gouvernement, les Meurs, le Climat, la Religion, le Commerce, &c. A quoi l’Auteur a ajoute des recherches nouvelles sur les Loix Romaines touchant les successions, sur les Loix Francoises & sur les Loix Feodales. (M.DCC.XLIX). 20 See, e.g. R.C. Post, Fashioning the Legal Constitution: Culture, Courts and Law, Harvard Law Review. Vol. 117. (2003). P. 52–56; 80–86; D. Nelken, J. Feest (ed.), Adapting Legal Cultures, (2001), P. 4. 21 Works reflecting this approach include: O.G. Chase, Law, Culture, and Ritual: Disputing Systems in Cross-Cultural Context, (2005); O.G. Chase, Culture and Disputing, 7 Tulane Journal of International and Comparative Law (1999) P. 81–90; O.G. Chase, Some Observations on the Cultural Dimension in Civil Procedure Reform, 45 American Journal of Comparative Law, Vol. 4, (1997), P. 861–870; M. Taruffo, Transcultural Dimensions of Civil Justice, 23 Comparative Law Review (2000); S.N. Subrin, Discovery in Global Perspective: Are We Nuts, 52 DePaul Law Review, (2002), P. 312; T.O. Main, Global Issues in Civil Procedure. (2006). P. 5. The importance of this issue was also emphasized at different conferences. See, e.g. XII Word Congress on Procedural Law, Mexico, September 2003; Colloquium of the International Association of Procedural Law, Tulane University, October 1998; Colloquium of the European University Institute, Badia Fiesolana, May 1977 (See, M. Cappelletti (ed.), New Perspectives or a Common Law of Europe, (1978)).

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society.22 This means that in the process of legal regulation, a “golden mean” between two moral traditions should be found. This principle should also be taken into account in civil procedural lawmaking. The norms that are successful for Europe do not work properly in Russia.23 The 1864 Code was one of the best European codes, but it was unsuccessful in Russia.24 Twenty years after its adoption, a special drafting committee was established to prepare a new code. Soviet civil procedure was continental in its radical sense, but the laws worked primarily on paper. One of the reasons for this failure was the general Soviet approach to the law where non-legal regulation was overwhelming.25 As for the 1990s common law initiatives, it is necessary to say that most of the 1995 amendments to the CCP did not work well enough.26 In Russia, the court could not be passive because of the widespread collective views in the society. Therefore, the common law model regarding the role of the judge is unworkable in Russia and the judge’s role has been changed in the 2002 CCP. Pure civil law or common law procedural constructions do not work properly in Russia. One of the reasons has to do with the unique elements of Russian culture. For this reason, Russian civil procedure consists of both continental and Anglo-Saxon features of civil procedure. They are further explained when one looks at the history of Russian civil procedure and the varying degrees of success different approaches obtained. Additionally, Russian civil procedure contains specific exceptional features which are not found in civil law or common law procedural models. Therefore, I would like to conclude that Russian civil procedure does not relate to the civil law or common law procedural systems, but should instead be viewed as a specific, exceptional procedural system. It should be noted that similar civil procedural outlines exist in most former ussr countries. The civil procedural law in these countries has similar historical and cultural backgrounds. Moreover, I would bet that a similar cultural 22

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See Maleshin D., Some Cultural Characteristics of the New Russian Code of Civil Procedure of 2002, 10 Zeitschrift für Zivilprozess International. (2005). P. 385–389 (in English); Maleshin D., La reforme de la Procedure Civile Russe, Revue Internationale de Droit Compare. No. 3 (2007). P. 673–683 (In French); Maleshin D., О Novo Codigo De Processo Civil Russo de 2002, 121 Revista De Processo. (2005). P. 159–165 (in Portuguese). See, e.g. Berman H, Justice in the U.S.S.R. An Interpretation of Soviet Law, (1963). P. 216. See, Cappelletti M., Social and Political Aspects of Civil Procedure – Reforms and Trends in Western and Eastern Europe, 5 Michigan Law Review. Vol. 69. (1971) P. 875. Sypnowich C., The Concept of Socialist Law, (1990). P. 155. See Treushnikov, Grajdaski process [The Civil Procedure], (2006). P. 15.

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framework exists in other countries of middle Eurasia as well as some of Latin America, where pure civil and common law procedural constructions are unsuccessful Therefore, I think that in today’s world, it is better to distinguish not only civil law and common law procedural systems, but also other exceptional models. The recent evaluation of two classical types of civil procedure supports this contention. It is obvious that these models do not exist today, at least not in their classical sense.27 The many changes to the basic principles of each combined with the blending of their characteristics has led to this. An excellent example of this is the recent evaluation of the role of the judge in both systems. The Russian example is not the only one of the cultural influence on the civil process. There are several ways in which culture affects law and civil procedural law. First of all, not all societies use a western style of the formal legal system. Traditional societies rely mostly on custom. Second, law is inseparable from the interests and goals of concrete peoples. Therefore the respect of the law by members of the society should be based on a clear understanding of the nature of the legal practice. III

Culture as Factor of Judicial Independence Diversity

The above analysis demonstrates that culture is one the most important factors that determines the specifics of civil procedure. It affects practice and forms a national character of civil procedure. That’s why legal culture is the most important criteria for the civil procedure. Using these criteria, we should sort two types of civil procedure: individualistic and collectivistic. They correlate with two widespread cultural models. The first one is based on individualism; the other on collectivism.28 Collectivism is defined as a moral principle that asserts the priority of the group over that of the individual or as a social organization in which the individual is seen as being subordinate to a social collectivity such as state or nation.29 Individualism is defined as a moral principle that stresses the self-directed, self-contained, 27 28

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H. Jacob et al., Courts, Law and Politics in Comparative Perspective. (1996). P. 4. See, e.g. D.G. Myers, Social Psychology, (2001); M. Calenkamp, Individualism verus Collectivism, (1993); M.H. Thompson, Individualistic and Collectivistic Liberty, 37 Journal of Philosophy. No. 14. (1940). P. 382–386. See, Graig Calhoun (ed.), Dictionary of the Social Science, (2000). P. 78; The Encyclopedia Americana. International edition, Vol. 7. (1997). P. 239; The New Encyclopaedia Britannica, Vol. 3. (2002). P. 453.

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and comparatively unrestrained individual or social organization, which exists in large measure to serve and protect individual.30 Society in such case becomes the background to the interests of individuals.31 In collectivism, the law aims to protect the interests of society as a whole and to achieve common goals, while in individualism the law primarily protects the interests of individual members of society. It is focused on reaching individual goals.32 This problem was a moot point one century ago33 and became important presently due to the process of globalization. In collectivistic societies, only active judges could be effective. Of course, there are cases when there are passive judges, but as a rule they are not effective. Group actions are also not very practical in collectivistic societies because they need very high self motivation. Individualistic systems are the best place for the judicial “show court hearings” with active parties and advocates. There are different components of judicial independence: political, economic and administrative. Political guarantees mean that judges couldn’t be members of any political party. High salaries for judges are the result of economic guarantees. Administrative guarantees ban any pressure on judges. Cultural specifities influence realization of the guarantees above. Therefore, judicial independence diversity depends very much on cultural specifity of a country. 30

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See, Graig Calhoun (ed.), Dictionary of the Social Science, (2000). P. 228; The Encyclopedia Americana. International edition, Vol. 15. (1997). P. 69; The New Encyclopaedia Britannica. Vol. 6. (2002). P. 295. See, J. Crittenden, Beyond Individualism. Reconstructing the Liberal Self. (1992). P. 77. See, e.g. P. Sandevoir, Introduction au droit. (1991); J.-L. Bergel, Theorie generale du droit, (1985). See, e.g. F. Cosentini, La societe future, individualisme ou collectivisme? (1905).

Chapter TWENTY-SEVEN

Constitutional Adjudication and Appointments to the uk Supreme Court Sophie Turenne* Upon advertising three vacancies at the uk Supreme Court in the autumn of 2012, the Selection Commission thus acknowledged the interactions between the Court’s workload and its appointment criteria: “in making recommendations [the Commission] will bear in mind the nature of the court and the way it is likely to develop over the next few years.”1 On a narrow reading, the Commission was keen to bear in mind the expertise of the Court – whether there is an IP specialist at the Court, for example. A more apt, yet more controversial reading is that there must be some fit between the scope of a Supreme Court’s function in constitutional adjudication and the method of judicial appointments, in order to account for an unelected court acting as guardian of the constitution over an accountable political branch. This is more controversial because the creation of the uk Supreme Court under the Constitutional Reform Act 2005 did not correspond to any intention to create a constitutional court. It was mainly aimed at giving proper effect to the principle of separation of powers, under the influence of the European Convention of Human Rights.2 In this short piece, we discuss the interactions between the constitutional role of the uk Supreme Court today and the judicial selection process for appointment to the uk Supreme Court. We suggest that the current process and criteria for appointments ensure the right balance between merit and democratic accountability – for the time being. * M.A. (Cantab.), Ph.D. (Paris II Panthéon-Assas), Associate Lecturer, Faculty of Law, University of Cambridge; Fellow of Murray Edwards College. Dr Turenne’s publications include Le juge face à la désobéissance civile. Etude en droits américain et français comparés (2007) and Judges on Trial. The Independence and Accountability of the English Judiciary (2013), coauthored with Shimon Shetreet. 1 See http://www.supremecourt.uk/news/selection-commission-121016.html (last checked on 7 April 2014). 2 A. Le Sueur, “From Appellate Committee to Supreme Court: A Narrative” in L. Blom-Cooper, B. Dickson and G. Drewry (eds.), The Judicial House of Lords 1876–2009 (Oxford 2009), p. 64.

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Is the Court a “Constitutional” Court?

The uk Supreme Court has the exact jurisdiction that the judicial House of Lords had. It is not a distinct court dealing with constitutional matters as such, unlike, for example, the French Constitutional Council. A recent comparative study suggests that the introduction of a specialist constitutional court offers a new power of the state, which is placed outside the judicial branch, and whose members are selected through procedures differing from those adopted by ordinary judges.3 This constitutional power is also expressly foreseen and regulated by the Constitution. In that sense, the uk Supreme Court is not a specialist constitutional court. That it is a major constitutional actor, however, has been gradually established, particularly since the coming into force of the Human Rights Act 1998. While the Appellate Committee of the House of Lords did serve as the ultimate legal guardian of the constitution,4 the devolution legislation and the Human Rights Act 1998 gave the courts “their first taste of what it is to be a constitutional court.”5 In addition, the separation of powers from the executive under the Constitutional Reform Act 2005 was “not just a means of ironing out a constitutional wrinkle.”6 It rather “added authority”7 to the judgments of the uk Supreme Court. It is hard to conceive the Supreme Court as a Constitutional Court because there is no such thing as an entrenched constitution to which primacy could be accorded – there is no procedural or formal distinction between a “constitutional” statute and an “ordinary” statute.8 No special procedure for making (and amending or repealing) constitutional legislation exists in England. The meaning of the English “Constitution” is itself a matter of debate. Any constitutional hallmark on a principle and rule is stamped by agreement from the legal and political communities.9 These constitutional principles and rules emerge from 3 A. Harding, P. Leyland and T. Groppi, “Constitutional Courts: Forms, Functions and Practice in Comparative Perspective” in A. Harding and P. Leyland (eds), Constitutional Courts. A Comparative Study, JCL Studies in Comparative Law No.1 (London 2009), p. 11. 4 Lord Bingham, “A New Supreme Court for the United Kingdom,” The Constitution Unit Spring Lecture 2002 (1 May 2002), p. 7. 5 Lord Neuberger MR, “The Supreme Court: Is The House of Lords ‘Losing Part of Itself’?,” The Young Legal Group of the British Friends of the Hebrew University (2 December 2009). 6 Lord Hope, “The Creation of the Supreme Court – was it worth it?,” Barnard’s Inn Reading (24 June 2010), p. 5. 7 Lord Hope, ibid. 8 Thoburn v. Sunderland City Council [2002] E.W.H.C. 195 (Admin); D. Feldman, “The Nature and Significance of ‘constitutional’ legislation” 2013 L.Q.R. 343. 9 House of Lords Select Committee on the Constitution, “The Process of Constitutional Change,” 15th Report of 2010–12, HL Paper No.177 (18 July 2011).

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legislation or the common law, and from conventions. This said, the House of Lords Select Committee on the Constitution offers one “working definition” of the English Constitution: “the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual.”10 At least such broad definition gives room for manoeuvre to the uk Supreme Court in checking ordinary laws against various “constitutional” norms. First, the principle of effectiveness of European Union law requires uk judges to disapply or override legislation when it does not comply with European Union law.11 This led the House of Lords to grant an injunction relief against the Crown in the Factortame litigation in the 1990s, in spite of national law not providing for such a remedy. Second, the Human Rights Act 1998 is also widely regarded as giving the Appellate Committee of the House of Lords, and then the uk Supreme Court “some of the functions of a Constitutional Court.”12 It is also in the application of the Human Rights Act that the tension between judicial expertise and democratic accountability is most acute. The Human Rights Act can yield a declaration of incompatibility under Section 4, and this is “the nearest that English judges come to a constitutional review.”13 But it is well-known that the declaration that domestic legislation is incompatible with a Convention right will not affect the validity of the law. The courts do not “strike down” or annul any domestic law as unconstitutional, but rather, the government is invited to review the policy behind the law and to remedy the incompatibility by amending the law.14 Controversy also arises in the absence of a declaration of incompatibility, as the courts avoid a declaration only by controversially stretching their interpretation of the legislation.15 10

11

12 13 14 15

House of Lords Constitution Committee, “Reviewing the Constitution: Terms of Reference and Method of Working,” First Report of 2001–02, HL Paper No.11 (19 July 2001), para. [20]; D. Feldman discusses this definition and others in D. Feldman, “The Nature and Significance of ‘constitutional’ legislation,” ibid. Case 6/64 Flaminio Costa v. ENEL [1964] E.C.R. 585; Case 106/77 Amminstrazione delle Finanze dello Stato v. Simmenthal [1978] E.C.R. 629; Case C-213/89, R v. Secretary of State for Transport, ex parte Factortame Ltd and Others [1990] E.C.R.I-2433; R v. Secretary of State for Transport, ex parte Factortame Ltd [1990] 2 A.C. 85; R v. Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 A.C. 603. Lord Phillips, Gresham Lecture (8 June 2010), p. 34. J. Bell, “Memorandum” in Select Committee on Constitutional Reform Bill, “First Report. Written Evidence,” vol. II, HC 125-II (24 June 2004). A fast track procedure can be used to remedy the incompatibility, see Human Rights Act 1998, s. 10. See Human Rights Act 1998, s. 3; Ghaidan v. Godin-Mendoza [2004] U.K.H.L. 30.

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Human rights are malleable concepts that are revisited as social expectations change and develop over time. Judicial decisions on them assert views that always remain subject to further argument. This came sharply into light in prisoners’ voting rights cases. The convicted prisoner Hirst challenged the general and automatic disenfranchisement of convicted prisoners of the right to vote under the Representation of the People Act 1983. The High Court dismissed Hirst’s application for a declaration that the Representation of the People Act 1983 was incompatible with the right to non-discrimination under Article 14 echr and the right to free elections under Article 3 Protocol 1 echr. The Court found that the ban served legitimate aims pertaining to punishment and electoral law, and deferred to Parliament’s intention in the Representation of the People Act 1983. The European Court of Human Rights, however, considered that, while limitations could be brought to the right to vote, a blanket and indiscriminate prohibition on prisoners breached the right to free elections under Article 3 of the First Protocol of the echr.16 The wide margin of discretion left to Member States in limiting the right to vote for convicted prisoners had been exceeded. While the saga of the prisoners’ voting rights cannot be detailed here,17 suffice it to say that the English government rejected the European Court’s decision, and that further case law from the European Court on the matter of prisoners’ rights has not appeased the resulting tensions between the European Court of Human Rights, the Council of Europe and the uk.18 The scope of constitutional adjudication further includes devolution matters. Under its appellate jurisdiction and some special statutory powers, the uk Supreme Court can review the distribution of powers between the uk and the national Parliaments of Scotland, Wales and Northern Ireland. Lady Hale recently noted that “the uk has become a federal state with a Constitution regulating the relationships between the federal centre and the component parts.”19 The Court will examine some referred legislation of the three devolved assemblies (Wales, Scotland and Northern Ireland).20 This includes questions 16 17 18 19 20

See Representation of the People Act 1983; Hirst v. United Kingdom (No. 2) (74025/01) (2006) 42 E.H.R.R. 41 at [60] and [68]. The most recent development is R (on the application of Chester) v. Secretary of State for Justice, [2013] U.K.S.C. 63. See S. Fredman, “From Dialogue to Deliberation: Human Rights Adjudication and Prisoners’ Rights to Vote” (2013) P.L. 292. Lady Hale, “The Supreme Court in the UK Constitution,” Legal Wales (12 October 2012). See the Scotland Act 1998, the Northern Ireland Act 1988 and the Government of Wales Act 2006.

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by the relevant law officer or Ministers of the devolved entities, which can lead to the abstract review of legislation. Lady Hale thus commented, on a Welsh byelaws case:21 “Constitutional adjudication is a new animal for us.”22 … “[This case] comes before the court, not in a concrete case, but as pure constitutional review along continental lines. This is, as far as I know, the first case in which this has happened. We are not used to deciding cases in the abstract, without reference to a particular set of facts.”23 If anything, then, the debate over constitutional adjudication in the uk confirms that defining what constitutional issues (as opposed to issues of ordinary law) are and where the limits of constitutional jurisdiction vis-à-vis the legislature run, requires more than a discussion of the organisation of the uk Supreme Court, including e.g. caseload or filtering mechanisms.24 The determination of the scope of constitutional adjudication is to a large extent instead a question of how “constitutional” law is interpreted. But what is, in the words of the Selection Committee, “the way [the uk Supreme Court] is likely to develop over the next few years”? It is trite to state that the boundaries between courts and Parliament are not set in stone; the real test for these boundaries is how any disagreement between the courts and Parliament would be resolved. Some judges have suggested that, in the hypothetical event of an Act of Parliament undermining the rule of law, the courts may claim inherent jurisdiction to reject the offending legislation.25 It is said that, by virtue of the common law, the uk Supreme Court may have constitutional jurisdiction in exceptional circumstances. Such exceptional circumstances might be, for example, an Act of Parliament which aims to remove people’s access to the courts.26 Yet, going beyond a declaration of incompatibility with a Convention right would entail a “radical recasting”27 of the English constitution. Setting aside or striking down legislation not in conformity with 21

Local Government Byelaws (Wales) Bill 2012 – Reference by the Attorney General for England and Wales [2012] U.K.S.C. 53. 22 Hale, “The Supreme Court in the UK Constitution,” p. 1. 23 Hale, “The Supreme Court in the UK Constitution,” p. 16. 24 D. Grimm, “Constitutional Issues in Substantive Law – Limits of Constitutional Adjudication,” in I. Pernice, J. Kokott, C. Saunders (eds), The Future of the European Judicial System in a Comparative Perspective: 6th International ECLN-Colloquium/IACL Round Table Berlin, 2–4 November 2005 (Baden-Baden 2006), p. 277. 25 AXA General Insurance Ltd v. Lord Advocate [2011] U.K.S.C. 46, per Lord Hope at [50–51], Lord Brown at [84], Lord Reed at [176]; Lord Kerr, Lord Clarke and Lord Dyson at [177]; R ( Jackson) v. Attorney-General [2005] U.K.H.L 56, per Lord Steyn at [102]. 26 C. Himsworth, Case comment (2012) P.L. 205, at p. 213. 27 Neuberger, “The Supreme Court: Is The House of Lords ‘Losing Part of Itself’?,” para. [30].

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the Constitution can only be an attribute of a written Constitution, because such judicial limit to the power of Parliament and the executive can only be foreseen and regulated by a written Constitution. This increased judicial power would also draw the senior judiciary further into the arena of policy and politics, with a “real risk of politicisation of the senior judiciary.”28 It would also attract some legitimate interrogations as to the desirable or necessary political input in the uk Supreme Court’s judicial selection. II

Judicial Diversity

The composition of the uk Supreme Court is a legitimate focus for consideration, not least because, in the context of human rights at least, it bears relevance to the way in which its judges reach their decisions.29 As a major constitutional role is gradually recognised to the uk Supreme Court, one may wonder whether the whole process and criteria for appointment to the uk Supreme Court should be distinct from that which assesses a judge’s suitability for high-level civil or criminal work.30 Constitutional adjudication brings law and policy together before the courts. Judges will lean in the direction in which the law takes them, but in doing so they may also further shape the direction taken by society. This traditionally raises the question of the proper limits of judicial authority, and it is arguable that, in the uk, the Human Rights Act 1998 has shifted these limits and enlarged the scope of constitutional adjudication.31 In practical terms, as a result, in some countries “those who have political responsibility are seen as being among those best placed to undertake such scrutiny of candidates to judicial appointments.”32 For the time being, appointment to the uk Supreme Court does not greatly differ from appointments to the English bench. uk Supreme Court Justices are widely expected to come from the Bench, from the Court of Appeal specifically, where many politically significant decisions are also taken.33 The care taken to detail the role of 28 29 30 31 32 33

Neuberger, “The Supreme Court: Is The House of Lords ‘Losing Part of Itself’?,” para.[31]. See above and below pp. J. Bell, “Reflections on continental European Supreme Courts” (2004) 24 Legal Studies 156, pp. 164–165. Constitutional adjudication remains narrow, however, compared with countries where full judicial review (in the sense of striking down legislation) exists. J. Bell, “Memorandum.” Hence the Crime and Courts Act 2013 sets a consultation duty upon the Lord Chancellor not only for appointments to the UK Supreme Court but also in relation to the appointment

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the Lord Chancellor in the selection process at any stage illustrates, however, how politically sensitive the appointments are.34 The Lord Chancellor’s power is one of veto over the recommendation of the Selection Commission, rather than a choice.35 He or she can only reject a recommendation of the Commission on the grounds that the person “is not suitable for the office concerned.” The Commission is then not permitted to reselect that candidate. The Lord Chancellor can also require the Commission to reconsider a selection if (a) there is not enough evidence that the person is suitable for the office concerned, (b) there is evidence that the person is not the best candidate on merit, or (c) there is not enough evidence that if the person were appointed the judges of the court would between them have knowledge of, and experience of practice in, the law of each part of the United Kingdom. Reasons in writing must be given by the Lord Chancellor to the Selection Commission for rejecting or requiring reconsideration of a selection.36 While the Selection Commission has discretion to determine the selection process to be applied,37 under the Crime and Courts Act 2013, the Lord Chancellor now has the ability to interfere with this process, with powers to make provisions, with the agreement of the senior judge of the Supreme Court, (b) as to things that are, or as to things that are not, to be done by a selection commission – (i)as part of the selection process applied by the selection commission or (ii) in determining what that process is to be.38 The Lord Chancellor is not alone in deciding the content of these regulations: the agreement of the

34

35 36 37 38

of the Lord Chief Justice, Heads of Division, and the Lords Justices of Appeal. The Lord Chancellor must also consult senior judges in addition to consulting the Lord Chancellor, the First Ministers of Scotland and Wales, and the Secretary of State for Northern Ireland. On duties of consultation, see A. Paterson and C. Paterson, “Guarding the Guardians? Towards an Independent, Accountable and Diverse Senior Judiciary” (London 2012), p. 29. The ad hoc Selection Commission must submit a report to the Lord Chancellor stating who has been selected and who was consulted. Applicants to the UK Supreme Court must have held high judicial office for at least two years, or must satisfy the judicial-appointment eligibility condition on a fifteen-year basis, or have been a qualifying practitioner for at least fifteen years, Constitutional Reform Act 2005, s. 25(1) as amended by ss. 50–52 of the Tribunals, Courts and Enforcement Act 2007. High judicial office includes High Court judges of England and Wales, and of Northern Ireland; Court of Appeal judges of England and Wales, and of Northern Ireland; and judges of the Court of Session. Constitutional Reform Act 2005, ss. 28 and 30. Constitutional Reform Act 2005, s. 30. Constitutional Reform Act 2005, s. 26. Section 27A (2) (a) and (b), Constitutional Reform Act 2005, as inserted by the Crime and Courts Act 2013, Sch. 13, para. [5].

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senior judge of the Supreme Court is required,39 while the political and judicial leaders must be consulted about them.40 The Lord Chancellor cannot paralyse the process either as he or she must also secure “that there will come a point in the process when a selection has to be accepted, either unconditionally or subject only to matters such as the selected person’s willingness and availability, by or on behalf of the Lord Chancellor.”41 Finally, any selection guidance must be approved by a resolution of each House of Parliament within a 40-day period; in any other case the Lord Chancellor cannot adopt the proposed guidance, although he can resubmit a modified proposal to parliament.42 This procedure increases the separation of powers from the executive without diminishing accountability to Parliament. It is further suggested that these provisions strengthen the duty, upon the Lord Chancellor and other Ministers of the Crown, to uphold the continued independence of the judiciary.43 Yet, since we raised the matter of prisoners’ voting rights above,44 one may recall that, in response to the European Court of Human Rights’ latest decision on the matter, the Lord Chancellor submitted for Parliament’s consideration a proposal that breaches an echr right. In a statement presenting the draft Bill on voting eligibility for prisoners to Parliament, the Lord Chancellor outlined three possible options for reform, including re-enacting the current general ban on prisoner voting, with a few minor changes. The Explanatory Notes (from the Lord Chancellor’s Department) simply state that “the Government is unable to say that the provisions are compatible with [the ECHR].”45 Two out of the three options for reform, however, would be compliant with the echr right. 39 40

41 42 43

44 45

Section 27A (1) (c), Constitutional Reform Act 2005, as inserted by the Crime and Courts Act 2013, Sch. 3, para. [5]. They are: the First Minister in Scotland, the Northern Ireland Judicial Appointments Commission, the First Minister for Wales, the Lord President of the Court of Session, the Lord Chief Justice of Northern Ireland, and the Lord Chief Justice of England and Wales; see Section 27A (3), Constitutional Reform Act 2005, as inserted by the Crime and Courts Act 2013, Sch. 3, para. [5]. Section 27A (1) (c), Constitutional Reform Act 2005, as inserted by the Crime and Courts Act 2013, Sch. 3, para. [5]. Section 27B, Constitutional Reform Act 2005, as inserted by the Crime and Courts Act 2013, Sch. 3, para. [5]. Constitutional Reform Act 2005, s. 3. See the discussion on the Draft Supreme Court (Judicial Appointments) Regulations 2013, Delegated Legislation Committee Debates, Session 2013–14 (9 July 2013). See above, pp. 401. Explanatory Notes, Voting Eligibility (Prisoners) Draft Bill, November 2012, paras. [58] and [88].

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The need for expertise in the law and practice in Scotland and Northern Ireland46 illustrates the quasi-federal nature of the uk Supreme Court. Interestingly, while England and Wales share a single legal jurisdiction, the Welsh debate on whether there should be a separate legal jurisdiction for Wales47 has led to the requirement, introduced in 2013, that the Lord Chancellor exercises his or her powers of appointments of Commissioners “with a view to ensuring, so far as may be practicable, that the Commissioners who are lay members include at any time at least one person who appears to have special knowledge of Wales.”48 But the importance of representing, within the Court, the different legal systems within the United Kingdom cannot be compared with the appointment of an individual from an underrepresented group.49 This is worth noting as any discussion on judicial selection at the uk Supreme Court seems to swiftly turn into a heated debate on the lack of diversity of the English judiciary. Indeed, the representation of women at the uk Supreme Court – one member out of 12 – places the uk in the last rank for oecd countries.50 The narrow social background of senior judges and the under-representation of women, as well as black and Asian minorities have long been (rightly) the subject of countless criticisms and many suggestions of reforms, the most recent of which are detailed below.51 As much-needed as it is, we suggest that this debate over the virtue of diversity does mask a debate familiar to many constitutional courts around the world: conflated with the debate on diversity is a discussion about the difficulty of reconciling the “merit” principle (judicial expertise) with the promotion of democratic accountability (the idea that the composition of the Court should be a fair reflection of society). Thus the House of Lords Constitution Committee noted in 2012 that, “in the United Kingdom, judges” legitimacy depends on their independent status and appointment on merit, not on any democratic mandate’. This refers to confirmation hearings, which had already been rejected by the Joint Select 46 47

48 49 50 51

Constitutional Reform Act 2005, s. 27(8). Welsh Government, “Consultation Document. A Separate Legal Jurisdiction for Wales,” WG-15109 (27 March 2012); Welsh Government, “A Summary of Consultation Responses. A Separate Legal Jurisdiction for Wales,” WG-16277 (17 August 2012). Sch. 12, part 1 Constitutional Reform Act 2005, as amended by Sch. 13, para. [20] Crime and Courts Act 2013. House of Lords Select Committee on the Constitution, “Judicial Appointments,” 25th Report, HL Paper 272 (28 March 2012), para. [92]. A. Paterson. See pp. 410–411.

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Committee on the Draft Constitutional Renewal Bill in 2008.52 Concerns about the risk of politicising the judicial appointments process prevail. The House of Lords Constitution Committee thus concludes:53 We are against any proposal to introduce pre-appointment hearings for senior members of the judiciary. However limited the questioning, such hearings could not have any meaningful impact without undermining the independence of those subsequently appointed or appearing to prejudge their future decisions. In the United Kingdom, judges’ legitimacy depends on their independent status and appointment on merit, not on any democratic mandate.54 … We agree that post-appointment hearings of senior judges would serve no useful purpose. There may be an exception in the case of the Lord Chief Justice and the President of the Supreme Court who undertake leadership roles for which they can properly be held to account.55 Tellingly, the House of Lords Select Constitution Committee also believes that “There is no useful role that parliamentarians could play in Judicial Appointments that could not be played by lay members on selection panels. It would not be possible to choose one or two parliamentarians without recourse to political considerations and in so doing it would be difficult to maintain the appearance of an independent judicial appointments process.”56 The role of lay members on selection panels is thus deemed to be functionally equivalent to the role of members of parliament. This seems correct to some extent at least: the presence of lay members acknowledges the importance of wider considerations including the virtue of gender and ethnic diversity, beyond examination of proven professional achievement. Lay members may been as a safeguard against a corporate approach to judicial selection, whereby a selection panel exclusively composed of judges or lawyers might emphasise the purely technical skills of a lawyer. The broader viewpoint of the lay man might counteract the temptation of “judicial cloning” as well as any politician. Besides, experience from other countries tends to show that the 52 53 54 55 56

Joint Committee on the Draft Constitutional Renewal Bill, “The Draft Constitutional Renewal Bill,” Report, vol. 1 (2008), para. 164. Ministry of Justice, “The Governance of Britain: Analysis of Consultations,” Cm 7342-III (2008), para. [175]. HL Select Constitution Committee, “Judicial Appointments,” para. [46]. HL Select Constitution Committee, “Judicial Appointments,” para. [48]. HL Select Constitution Committee, “Judicial Appointments,” para. [52].

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more diverse the panel, the more diverse the appointments.57 For these reasons, under the Crime and Courts Act 2013, an independent lay Commissioner, rather than a judge as was the case so far, will chair the selection panels for both the Lord Chief Justice and President of the uk Supreme Court.58 Judicial selection is made by an ad hoc Selection Commission of at least five members, convened by the Lord Chancellor when a vacancy arises.59 For appointments other than the appointment of the Supreme Court President, the Selection Commission must include at least five members: the Deputy President of the Supreme Court, a senior uk judges nominated by the President of the uk Supreme Court, and three other members are drawn respectively from the Judicial Appointments Commission, the Judicial Appointments Board for Scotland and the Northern Ireland Judicial Appointments Commission. There must be at least one judge of the Court and at least one non-legally qualified member on the panel – and more than one of the requirements may be met by the same person’s membership of the Commission.60 These three representatives of the uk jurisdictions do not have to be lay persons. We have suggested elsewhere61 that there should be a cross-section of talents, with strong and independent lay members who must be able to challenge the judicial members of the panels beyond asking them for reasons for their views. Unless greater clarity on criteria and responsibilities of the lay members, with a greater gender and ethnic mix, is set, one may doubt whether lay members might make any difference to judicial selection for the senior courts. But the House of Lords Constitution Committee’s preference for lay members rather than politicians in selection panels is also justified by its concern for a non-partisan judiciary.62 While lay members would not be expected to bring with them political views in the way politicians might, the raison d’être of lay members in selection panels, under the Constitutional Reform Act 57 58

59 60 61 62

C. Thomas, “Judicial Diversity in the United Kingdom and Other Jurisdictions: A Review of Research, Policies, and Practices” (London 2005), p. 37. Constitutional Reform Act 2005, ss. 26 and 27 as amended by the Crime and Courts Act 2013, Sch. 13, para. [20]. Until the Crime and Courts Act 2013, the selection commission was chaired by the President of the Court, however the fact that the President of the UK Supreme Court chairs the panel appointing his/her own successor has been recognised as inappropriate and led to the change under the Crime and Courts Act 2013. There must be an odd number of Commissioners, Section 27, Constitutional Reform Act 2005, as modified by the Crime and Courts Act 2013, Sch. 13, para. [20]. Section 27 (1B) as inserted by the Crime and Courts Act 2013, Sch. 13, para. [4]. S. Shetreet and S. Turenne, Judges on Trial. The Independence and Accountability of the English Judiciary 2nd ed. (Cambridge 2013), ch. 4. Neuberger, “The Supreme Court: Is The House of Lords ‘Losing Part of Itself’?,” para. [31].

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2005 and the Crime and Courts Act 2013, is to enhance judicial diversity in judicial selection. The avowed goal of greater diversity in the composition of the senior judiciary does not simply serve public confidence in the judiciary, giving their decisions greater legitimacy as a consequence. It seems trite to say that the presence of lay members in selection panel is expected to promote wider considerations beyond legal achievements. This is meant to lead to more diverse courts; diverse courts are assumed to be better courts, because they can draw upon a diversity of experience in reaching their decisions, thus possibly allowing for a challenge of the otherwise dominant view. To that extent, greater diversity among judges leads them to make a conscious effort at impartiality rather than taking it for granted.63 One may also infer that a diverse range of experiences may be needed for certain judicial decisions. These certain judicial decisions may be “hard cases”: those cases where the open texture of human rights64 requires judges to solve conflicts of values, and which are decided at the appellate level by panels of judges in the Court of Appeal and in the uk Supreme Court. The prisoners’ right to vote cases can be deemed to be one of these “hard cases.” Lord Justice Etherton is one of very few English judges to suggest a link between the substance of judicial decision-making and judicial diversity in extrajudicial writings: … in every period, but especially as a result of the [Human Rights Act], the personal outlook and judicial philosophy of each judge plays a critical role in the outcome of hard cases and the defining of our society’s values; and that a judiciary with a diversity of experience, particularly at the highest levels, is more likely to achieve the most just decision and the best outcome for society.65 Lord Justice Etherton argues that, as a consequence of the Human Rights Act 1998, the importance of gaps in the law, left unfilled by common law precedents is such that, in hard cases, “the personal outlook of judges and their political role feature much more prominently.”66 Such diversity, as Lord Justice Etherton 63

64 65 66

B.L. Shientag, “The Virtue of Impartiality” in G.R. Winters ed., Handbook for Judges (American Judicature Society 1975), cited in B. Wilson, “Will Women Judges Really Make a Difference?” (1990) 28 Osgood Hall Law Journal 507 at 508–509. H.L.A. Hart, The Concept of Law (Oxford 1997), ch. 5–7. T. Etherton, “Liberty, the Archetype and Diversity: A Philosophy of Judging” (2010) P.L. 727, p. 740. Etherton, “Liberty, the Archetype and Diversity: A Philosophy of Judging,” p. 740.

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states, is “plainly not restricted to, or synonymous, with gender, ethnicity or sexual orientation. On the other hand, those factors are likely to be an indication of valuable experience which is different to the norm.”67 The controversy as to whether empirical evidence supports the idea that diversity bears any relevance to judicial decision-making is well alive, however,68 though it seems right to us that having, e.g., more female and ethnic minority judges would improve the reasoning, even if not necessarily the outcome, in some decisions.69 Beyond the controversy, the political reality is a sense of urgency in increasing diversity at the Court, as illustrated by the latest measures to that purpose under the Crime and Courts Act 2013. Two provisions stand out.70 First, this Act places a statutory duty upon the Lord Chancellor and the Lord Chief Justice to take such steps as that office holder considers appropriate for the purpose of encouraging judicial diversity.71 Until the Crime and Courts Act 2013, only the Judicial Appointments Commission had a duty to have regard to the need to encourage diversity in the pool of applicants to the bench.72 This statutory duty upon the Lord Chancellor and the Lord Chief Justice ensures that diversity remains a priority over the years, regardless of the incumbent, with the task to identify effective ways of nurturing applications to the bench from highly skilled women and members of ethnic minorities.73 67 68

69

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71 72 73

Etherton, “Liberty, the Archetype and Diversity: A Philosophy of Judging,” 476. This is so particularly in the field of political science, see, e.g., M. A. Bailey, F. Maltzman, The Constrained Court: Law, Politics and the Decisions that Justices Make (Oxford 2011). In the English context, some believe that the complexity of judicial decision-making is such that it is difficult to single out social or demographic factors as relevant in predicting judicial decisions (below the Supreme Court), see H. Genn, Judging Civil Justice (Cambridge 2009) p. 153. Etherton LJ rejects Genn’s approach on the ground of social psychology research on group decision-making concluding to the contrary, Etherton, “Liberty, the Archetype and Diversity: A Philosophy of Judging,” pp. 744–745. R. Hunter, C. McGlynn and E. Rackley, Feminist Judgments: From Theory to Practice (Oxford 2010); E. Rackley, Women, Judging and the Judiciary. From Difference to Diversity (London 2012). In addition to these provisions, the Crime and Courts Act 2013 introduces flexible and part-time working for judicial appointments to the High Court and above, see Section 23, Constitutional Reform Act 2005, as amended by the Crime and Courts Act 2013, Sch. 13, paras. [1–2]. Schedule 13, Part 2, para. [11] of the Act, inserting Section  137A to the Constitutional Reform Act 2005. Constitutional Reform Act 2005, s. 64. Lord Pannick, HL Deb. vol. 741 col. 584 (4 December 2012).

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Second, an “equal merit” provision now applies to judicial appointments: when there are candidates of equal merit, this provision allows candidates to be selected on the basis of improving diversity.74 Priority, among candidates of equal merit, can thereby be given to the one who comes from an underrepresented group. The application of this “tipping provision” or “tie-breaker” already contained in Section 159 of the Equality Act 2010 was endorsed by Lord Neuberger, then Master of the Rolls.75 However, unless the components of “merit” are disaggregated into which are applied in a consistent way, the notion becomes “almost wholly subjective, allowing each decision maker to construct his or her own features which are significant.”76 It also makes the finding of “equal merit” between candidates a subjective matter and potentially limits the impact of Section 159.77 It has been suggested that, in practice, appointments panels fairly rarely found candidates of equal merit. Baroness Neuberger, Lord Phillips and Lord Judge CJ also doubted whether two candidates are ever truly equal.78 In that context, Section 159 would make little impact. Yet it seems likely, as suggested by some other senior judges,79 that Section 159 could have some use. In particular, in large selection exercises, it may not be possible to rank every candidate in strict order of merit and so a number of candidates may be considered to be of equal merit,80 thus allowing Section 159 to come into play. If there is to be a “trickle up” effect from making more appointments at the lowest levels, this may prove to be one viable long-term strategy. In conclusion, while the uk Supreme Court is not a separate Constitutional Court and retains some appellate jurisdiction, it certainly engages in “constitutional” adjudication. As a result, some of the concerns about the character of 74

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76 77 78 79

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Schedule 13, Part 2, paras. [9] and[10] of the Act (respectively inserting Section 27 (5A) and amending Section 63 of the Constitutional Reform Act 2005). This analysis is taken from S. Shetreet and S. Turenne, Judges on Trial. The Independence and Accountability of the English Judiciary, ch. 4. Oral Evidence before the House of Lords Select Committee on the Constitution, “Judicial Appointments Process Oral and Written Evidence” (28 March 2012), Q 240 (Lord Neuberger MR). S. Evans and J. Williams, “Appointing Australian Judges: A New Model” (2008) 30 Sydney Law Review 295, p. 297. HL Constitution Committee, “Judicial Appointments,” para. [91]. Oral Evidence before the House of Lords Select Committee on the Constitution, “Judicial Appointments Process Oral and Written Evidence,” Q 224, Q 183, Q 184, Q 364. Oral Evidence before the House of Lords Select Committee on the Constitution, “Judicial Appointments Process Oral and Written Evidence,” Q 377 (Lord Chancellor), Q 98 (Goldring LJ), Q 240, (Hallett LJ), Q 240 (Lord Neuberger MR). HL Constitution Committee, “Judicial Appointments,” paras. [98–101].

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appointments which apply to a distinct Constitutional Court may be relevant to the uk Supreme Court. Practices in judicial selection, however, are embedded in differing legal cultures and traditions. In the uk, the unusual lack of diversity in the senior judiciary (compared with other European countries), combined with a tradition of limited constitutional adjudication, has naturally shaped reforms on judicial appointments. The specific debate about judicial selection at the Supreme Court has merged with some ever-lasting discussions on how to promote greater diversity in the senior judiciary. Recent judicial reforms indicate however that the democratic pedigree of the Court is expected to come from the lay membership in selection panels, rather than from any involvement from Parliament. This is underpinned by the long-standing English tradition of judicial independence from Parliament, which must be preserved. But it can only be welcomed if we understand whom or what, from the civil society, lay members are expected to reflect.

Chapter TWENTY-EIGHT

Appointment of Judges and Legal Responsibility of Judges Guarantees of Independence in Russia Sergey Nikitin* I

Introduction: The Guarantees of Independence

As it is known, the real independence of judges is guaranteed by various means: legal, economic, administrative, etc. First, a judge must be protected from illegal external influence: the executive branch, business, unscrupulous lawyers, etc. Second, they must be protected from the undue influence of judges within the judicial system, for example, from managers, court administrators or higher courts. These means have to be very concrete and specific, both in a legislative and in a practical sense. Legislation should include precise, executable and protected enforceable rules that guarantee the independence of judges and courts. Their implementation should not allow even an appearance of distortion to judicial independence. Judicial independence must not be simulated.1 According to Article 120 of the Constitution of the Russian Federation, judges are independent and are only subordinate to the Constitution of the Russian Federation and federal law. The Federal Law on the Status of Judges in the Russian Federation establishes the guarantee of judicial independence remains in compliance with Article 9 of the cited law. The judicial independence is guaranteed by the following: The procedure for administration of justice provided for by law; prohibition under the threat of liability of anybody’s interference into the activities involved in administration of justice; established procedure for suspension and termination of judge’s authority; judge’s right to retirement; inviolability of judge; and system of the bodies of the judicial community; judge’s material and social maintenance on account of the State corresponding to his/her high status. The guarantees of judge’s independence, including the measures of legal protection, material and social maintenance thereof provided for by this law extend to all the judges of the Russian Federation and may not be cancelled or * Civil, Arbitration, and Administrative Proceedings Department, Russian Academy of Justice 1 Modernisation of Judge’s Status: Modern International Approaches (Executive editor T.N. Neshatayeva). “Norma.” “Infra-M,” M., 2011. p. 14. © koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_029

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reduced by other regulatory acts of the Russian Federation and of the constituent entities of the Russian Federation. The systems of guarantees of judicial independence in Russia are enshrined in the Constitution and in federal laws in general, and are in accordance with international and European standards. Problems increasingly lie in the practice of law enforcement, especially in the so-called resonating or “high-profile” cases. II

Organizational Functions of the Judicial Branch

The organization and functioning of judicial power in Russia, including the legal status of judges, is predominantly determined by the transitional state of the economic, political and legal systems. In this connection, the classic legal means aimed at ensuring judges’ independence are not always efficient. The modern legislation regulating the legal status of judges in the Russian Federation started to build up in the first half of the nineties of the last century. The adopted laws were aimed at ensuring judges’ independence and independence of the judicial branch of power on the whole. The initial period was characteristic of a major enhancement of the role of the judicial community’s bodies: congresses of judges, judicial councils, qualification collegiums of judges. Afterwards, starting from the mid-twenties the authority of chairmen of courts of various levels gradually increases and the role of the judicial community’s bodies reduces. Such trend is ambiguously treated by the legal doctrine. A number of authors point to an excessive bureaucratization of the Russian judicial system and to the supernormal role of court chairmen in it, this having a negative impact upon judges’ independence.2 The guarantees of judges’ independence are connected to a great extent with the issues involved in the functioning of the judiciary of the Russian Federation and judges’ legal liability. A procedure for joining the profession of a judge, as well as a procedure for and grounds for bringing judges to legal liability must be such as to ensure judges’ independence as much as possible. III

The Structure of the Judiciary

At first I would like to draw your attention to the structure of the Judiciary in Russia. (Chart 1). 2 L.V. Golovko. Building Up Independent Judicial Power: Strategic Approaches//Voprosi Pravodedenia.2010. No. 3(7), p. 157.

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Appointment of Judges and Legal Responsibility of Judges Chart 1

Structure of the Judiciary Higher Court Judges

Russian Supreme Court

Russian Supreme Court of Arbitration

Russian Constitutional Court

125

58

19

Judges of Regional Courts

Court of Arbitration

(Appellant Court)

(Cassation Courts)

4198

388

Judges of Regional Courts

Judges of Arbitration and

(First and Appellant Courts)

Appellant Courts

16269

546

Magistrates

Judges of Regional Courts of Arbitration

(Justice of the Peace)

(Lower Court)

7440

2758

In Total – 32368 Including: General Court Judges 21178 Arbitration Judges

3750

Magistrates

7440

In total in Russia there are more than 32 thousand judges. Justice in civil, criminal and administrative cases is exercised by the courts of general jurisdiction. General courts are, first and foremost, courts for citizens. Arbitration courts are courts for legal entities and entrepreneurs. They deal with economic, civil and administrative cases. As you can see most of the judges are judges of general courts.

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In appointing a citizen to the position of judge, as well as in the application of measures to hold judges to a legal liability, judiciary bodies play a rather significant role. It is qualification colleges of judges and examination boards (Chart 2). Chart 2

Judiciary Bodies in Russia

2.Judiciary Bodies in Russia

Congress of Judges of Russia

Council of Judges

Supreme Examination Board

Supreme College of Judges

Regional Congress of Russia

Council of Judges

Examination Board

Qualification Board

In Russia there functions the Supreme Board of Judges, the Supreme Examination Board, as well as regional board and qualification examination board. The Examination Boards take exams for the post of judge. Qualification Boards make recommendations for the occupation of judge and consider cases of holding judges to legal liability. The Qualification Board and the examination boards are made up of judges and representative of the legal community. Judges approximately make up 2/3 of the composition. Representatives of the legal community are 1/3. Judges in the Board and Examination Boards are elected respectively by the Congress of Judges of Russia and the regional conferences of judges. Representatives of the legal community are professors of a law school or representatives of a public legal organization. They are elected in the upper house of parliament or regional parliaments. Judicial candidates must meet certain requirements. Age is to be between the ages of 25 and 40 years, depending on the level of the court. The candidate must hold a law degree not lower than that of a Master's. A Bachelor's Degree does not allow one to become a judge. The candidate must have experience in the legal profession, approximately 5 to 10 years. Also taken into account is the state of the candidate's health, the absence of a criminal record as well as other requirements. In the Russian Federation there exists the principle of a single legal status of judges and is established in fact as the one single and competitive means in the formation of a body of judges.

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A general chart on how one enters the profession of judge is reflected in the following (Chart 3): Chart 3 Judicial Candidate

Procedure for Formation of a Judicial Body

Qualifying Examination

Named to the Position by the

Recommendation of the Qualifying College

Elected to the position by the Federation Council of the

President of the Russian Federation

Federal Assembly of the Russian Federation (Supreme Court Judges)

Elected to the position of judge by the regional parliament (Magistrates)

Judicial candidates must pass a special qualifying examination. The Quali­fying Boards of Judges announce vacancies and conduct the competition. The Board may recommend to the position of judge one or more candidates. Recommended candidates are proposed for appointment to judicial office by the Board. Most federal judges are appointed by the President of the Russian Federation. The judges of higher courts are elected to the position by the upper house of the Russian parliament on the proposal of the President of Russia. The President may, in principle reject the recommended candidates. But this is quite rare. Magistrates are appointed by the regional parliaments. Federal judges are appointed for an indefinite term whereas magistrates are appointed for a period of up to 5 years. Currently, a single way of forming the judiciary is not quite optimal. In this regard, there are other ways for entering the profession of judge to be considered; first, either through special training in a law school, or through continuous special training in the courts. Magistrates are elected directly by the public. For the transition of an acting judge to a higher judicial position, there exists the identified procedure for the appointment. In this case, the candidate doesn't need to pass a qualifying examination. Recently, upon the appointment of judges, it is actually strengthening the role of court charmen and a definite reduction in the role of qualifying boards. In fact, a candidate for the position of judge who has not received the support of a representative a higher court is quite unlikely to be appointed as a judge. This situation can be seen as a negative thing from the point of view of ensuring the independence of judges.

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Discipline of Judges

Now, the procedure of legal responsibility of judges: First of all disciplinary proceedings. The question of the liability of the members of the judiciary is one of the keys to the effective functioning of the judiciary. The principle of independence cannot be understood exclusively as a set of privileges established by the state for the judiciary. Independence must be balanced by the responsibility of judges for violation of laws regulating their activities. But control over the activities of judges should not undermine their independence and become a punitive tool against unwanted members of the judiciary or unduly limiting the rights of judges and subjecting them to undue criticism.3 The qualifying boards of judges play a fairly large role in Russian disciplinary proceedings. Only they hear disciplinary cases and make decisions about bringing disciplinary proceedings against judges. A general chart for disciplinary proceedings is as follows (Chart 4). Chart 4 Commencement of Proceedings

The Procedure for Disciplinary Proceedings Hearing a Case

Disciplinary Penalty

Appeal Court

Court Representative

Qualifying Board of Judges

Notification

Supreme Qualifying Board

Council of judges Removal of Office

Judicial Disciplinary Court

Qualifying Board of Judge

Disciplinary proceedings may be initiated against a judge by the Chair of the Court, or by the Council of Judges or by the Judiciary Qualifying Board. The Board reviews the case before a judge. There are two types of disciplinary measures: a warning or early termination of office of the judge. A judge may appeal to a higher board or to a superior court. The decision to terminate the powers of a judge is appealed to a special disciplinary court, which consists of judges of the Supreme Court and the Supreme Court of Arbitration. Grounds for disciplinary responsibility of judges are of a sufficiently general nature. This is a violation of the requirements that apply to judges by the federal law “On the Status of Judges” and the Code of Judicial Ethics. It is a violation­ 3 Modernisation of Judge’s Status: Modern International Approaches, Pages 204–205.

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of law by the judge to commit acts deemed unworthy of a judge that weaken the authority of the judiciary. The Plenary Session of the Supreme Court of the Russian Federation in its Resolution No. 7 of May 31, 2007 specified that a disciplinary offence entailing a disciplinary sanction in the form of warning or preschedule termination of judge’s authority should be understood not only as a violation of the rules of the Law on the Status of Judges in the Russian Federation and of the Provisions of the Code of Judicial Ethics but also violations of the generally accepted moral norms, the duties involved in the administration of justice, rules of behavior when discharging other official duties and in extraoccupational activities.4 A number of authors who have investigated the problem of disciplinary liability of judges in the Russian Federation note that individual issues of disciplinary proceedings are not yet exactly regulated from the legal point of view. Thus, there is insufficient differentiation of disciplinary sanctions in respect of judges and there are no limitation periods for bringing judges to disciplinary liability etc.5 Especially problematic is the question of responsibility of judges for deficiencies in giving judicial attention for legal errors. According to the federal law “On the Status of Judges” a judge cannot be held liable for expressing their opinion in the administration of justice and in the application of the Court's decision, if only an effective court judgment that will not judge the guilt of criminal abuse or by knowingly making an undue judicial act. Obviously, the responsibility cannot occur for any failure of justice. We can speak only about the gross violations of substantive or procedural law. A mistake should show bad faith, gross negligence or incompetence on the part of the judge. It is a fact that a mistake of justice must be confirmed by a higher court in order for a judicial review of the act. Only in this case, the judge may be subject to disciplinary action. At the same time, one should have in mind that there are quite a number of cases when a judicial act adopted with evident violations of the rules of material or procedural law showing the professional incompetence or gross neglect of a judge is not subjected to a verification procedure on the part of superior judicial instances because it is not appealed against by the persons concerned in the appellate or cassational procedure. Such judicial acts which are actually 4 Bulletin of the Supreme Court of the Russian Federation. 20,207. No. 8. 5 N.A. Petukhov, A.S. Mamikin. Disciplinary Does not Mean Arbitrary//in the collection of articles: Qualification Boards of Judges: Yesterday, Today and Tomorrow. M., 2012, Pages 229–230.

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unlawful may be come known to the public at large and have a negative impact upon the authority of the judicial power. However, at present it may not serve as a ground for initiating disciplinary proceedings in respect of the judge who has adopted an unlawful decision. Such state of affairs can hardly be regarded as quite acceptable. It is evident that there is a need for definite legal procedures enabling to detect and record such gross judicial errors and where necessary to start procedures for bringing to disciplinary liability the judges who have made them.

Chapter TWENTY-NINE

The Bumpy Road towards Judicial Independence Past, Present and Future Prospects of Mainland China Liu Hao* I

History of the Introduction of Judicial Independence

Judicial independence is a principle and system born in the West that originated out of the political systems, legal concepts and cultural heritage of modern Western countries. It is a product of modern Western bourgeois-democratic revolutions and is built on concepts that include “sovereignty of the people” and the “separation of powers.” The core theoretical underpinnings of judicial independence came from the works of Locke and Montesquieu, with earlier theoretical influence by Plato and Aristotle.1 In contrast to Western countries, China introduced the concept of judicial independence into its legal system during the second half of the 18th century and did so as a reaction to political events. Before that period, China had undergone more than 2000 years of imperial dictatorship, in which the imperial authority was supreme with no division of power with any other authority. It was widely accepted that the emperor’s word was the supreme constitution. It was said that “law came from the emperor, and imperial power was higher than law” and that “life and death were at the sole discretion of the emperor.” China’s sovereignty and territorial integrity were greatly harmed in the aftermath of the First Opium War (Britain’s invasion of China, 1840–1842). Western countries, invading with their superior ships and advanced cannons, forced China to let go of her sense of superiority as a Celestial Empire. Thus, China sought to acquire knowledge from the West, a process that was initiated by the study of Western science and technology. The ultimate aim of these activities was eventual retaliation through “learning the technological advantages of foreign invaders in order to defeat them later.” However, the Chinese * Liu Hao is Director of Institute of Aviation Law and Standard of Beihang University (buaa) and Deputy Director of National Research Center of ATM Law and Standard in China. He is also a fellow of Law School of Beihang University (buaa). 1 CHEN Guangzhong, “Judicial Independence with Chinese Characteristics from a Comparative Law Perspective” (2013) 2 Journal of Comparative Law 1.

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government and people learnt from the crushing defeat of the SinoJapanese War of 1894–1895 that the principal source of power of Western countries rested in their organizational systems rather than the weaponry or technology that they deployed. A comprehensive campaign to study the political, economic and social systems of Western countries and of neighboring Japan was subsequently launched. Politically, they sought to abolish the imperial power system and replace it with a democratic political one with a parliamentary body and an established constitution, key features typical of a Western democratic and constitutional system. Judicial independence was introduced into China by this process. As this was a reactive move, adopted as a means to protect and reinforce the country along with its citizens, the inherent values and functions of the system in regards to judicial independence were largely neglected. “It was introduced into China purely out of reactive utilitarian need. As such, in the course of bringing in the theory and system of judicial independence, modern China at first put aside the inherent values and sought only the external form.”2 The constitutional clauses and judicial organs modelled after those of Western countries were superficial and only skin deep, lacking any real social, ideological, or knowledge foundations. From the day that judicial independence was first introduced into China, it seemed unsuited for its new environment. It never actually took form but rather just tottered its way through the following century. In short, it largely remained a charming dream, “a Chinese Dream and a Constitutional Dream.” II

Development and Characteristics of China’s Judicial Independence in Modern China

In 1949, the Communist Party of China (cpc) won the Civil War, and the Kuomintang regime was driven to Taiwan. The cpc founded the People’s Republic of China (prc) on mainland China. The new regime, like other Communist regimes in other countries, was fervently ideological and claimed to break with past traditions and capitalism in all respects. Therefore, even before the prc was founded, it announced the annulment of the Six Codes of the Kuomintang regime. It then required that judicial organs regularly show contempt for and criticize the “reactionary” Six Codes as well as all the other “anti-people laws and ordinances of the European and American capitalist 2 HAN Xiutao, “Pursuit of Judicial Independence, Values, and a Return to Reality in Modern China” (2003) 4 China Legal Science 165.

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countries and Japan.” It was in this spirit that the judicial organs were instructed to take on the task of legal construction.3 Some scholars argued that such “instructions” violated the principles of inheritance and continuity of laws and jurisprudence. The greatest consequence of this was that it interrupted the historical process of China’s legal modernization. The second consequence was that it strengthened the traditional Chinese mentality of despising law, which developed into the source of the rampant trend of China’s legal nihilism in later years. Thirdly, in terms of legal construction and legal education, Mainland China adopted the practice of adapting the policies of the Soviet Union without reservation, thus modelling its laws directly on those of the Soviet Union. And fourthly, it opened the door for Mainland China to rule the country with policies, replace the government with the Party, and rule the country with the Party (rule by man) for an extended period of time.4 In June of 1952, the cpc launched a campaign to oppose old legal concepts and reform all judicial organs across the country. By the end of February in 1953, the judicial reform movement had achieved “great success.” A large number of “old judicial officials” (about 6000 people that made up 22 percent of China’s judicial officials) were transferred out of their posts as judges in the people’s courts. A mass of cadres without legal backgrounds or legal educations shifted into the judicial organs to engage in judicial work.5 During this campaign, many legal principles, including “judicial independence,” the idea that “all people are equal before the law” and “respect for judicial procedure,” were repudiated as “old legal concepts,” seriously harming the legal development and the judges in Mainland China at the time.6 Despite the attacks that it faced, the principle of judicial independence did not fully disappeared. In 1954, the prc promulgated its first Constitution. Article 73 and article 83 of the constitution respectively stipulated that “the people’s courts administer justice independently and are subject only to the law,” and “local people’s procuratorates at all levels exercise their functions independently and not be subject to interference by local state organs.” The Organic Law of the People’s Courts and the Organic Law of the People’s Procuratorates of the same period contained the same provisions. 3 Instruction of the Central Committee of Communist Party of China on Abolishing the Six Codes of the Kuomingtang and Confirming the Judicial Principles of the Liberated Areas (28 February 1949). 4 HE Qinhua, “Abolish the Six Codes of the Kuomingtang” Xinmin Evening News (12 July 2009) p. B11. 5 According to Professor HE Qinhua’s Report, there were 2015 cadres have shifted to judicial work in eastern China. HE Qinghua, “Judicial Reform Movement in 1952” Xinmin Evening News (26 July 2009) p. B11. 6 Ibid.

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The provisions of the 1954 Constitution were deemed as vows of judicial independence. Some jurists thus began to openly discuss judicial independence and the related judicial systems and political systems. They put forward some very thoughtful views, such as the idea that the Party’s leadership over the work of the courts should be realized through the stipulation of laws, because the law is the will of the people and also the will of the Party. Another suggestion was the idea that through acting in a manner that is subservient to law, judges are, in fact, acting in accordance with the party’s leadership. Therefore, judges only need to obey the law. Another concept was that judges should attend only to the law and not determine policies. “Judicial independence is feasible when the laws are complete.” “The Party is violating the law if it becomes involved in the specific judicial affairs of the people’s courts.”7 These valid arguments were soon harshly censured and criticized during the Anti-Rightist Movement in 1957. A large number of jurists and legal affairs workers were designated as “rightists.” The principle of judicial independence was thus completely crushed. When the Cultural Revolution subsequently came, it wiped out the Chinese judicial system. Judicial organs at all levels were totally paralyzed. The Constitution as amended in 1975 went further to erode the nominal principle of rule of law by striking down the concepts like: “The independent adjudication of the people’s courts is subject only to the law.” “Citizens are equal in the eyes of law” and “the defendant has the right to speak in his own defense.” The procuratorial organs were abolished and the functions had been handed to the public security organs. The 1975 Constitution stipulated that the “route of the masses” must be followed in the prosecution and adjudication of cases.8 The separation and counterbalance of powers had thus completely disappeared. As a result, the rights of Chinese people were wantonly trampled on with multitudes of unjust and erroneous cases. When the Cultural Revolution was over, the cpc reflected on the severity of its past errors and initiated a large-scale campaign to “make wrongs right.” Reconstruction went ahead in full swing in the judicial domain. The Organic Law of the People’s Courts, passed in 1979, restored the principle that “the people’s courts shall conduct adjudication independently, subject only to the law.”9 The Constitution, as amended in 1982, stipulated that the people’s courts are to exercise judicial power independently, and the people’s procuratorates are to independently exercise prosecutorial power “free of interference from 7 XIA Jinwen and ZHANG Hua, “Historical Process of China’s Judicial Independence in the 20th Century” Research on Modenization of Legal System vol. 5 180–181. 8 See Article 25.3 of the 1975 Constitution. 9 See Article 4 of the Organic Law of the People’s Court in 1979.

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administrative organs, social organizations or individuals.”10 The Organic Law of the People’s Courts and the Organic Law of the People’s Procuratorates, as revised in 1983, and the subsequent law of Judges and Law of Public Procurators adopted the provisions of the modified Constitution. In the course of the formulation of the Constitution in 1982, some scholars proposed restoring the provisions of the 1954 Constitution in regards to the principle that “the people’s courts shall conduct adjudication independently, subject only to the law.” The proposal, however, had not been accepted.11 With regard to judicial independence, the current prc Constitution the 1982 Constitution, and the relevant laws do not provided for the separation of the three powers of government as in Western countries. The 1982 Constitution prescribes that the prc’s political system is a people’s congress system. “All power in the prc belongs to the people. The organs through which people exercise state power are the National People’s Congress and the local people’s congresses at various levels.” The National People’s Congress and its standing committee are not simply the equivalent of a legislature of the sort that exists in Western countries to exercise legislative power but rather, according to the provisions of the 1982 Constitution, they are the supreme state bodies and are empowered to make decisions on legislative, executive, judicial and military affairs.12 They epitomize the indivisibility of the state power. The people’s courts and people’s procuratorates owe their existence to the People’s Congress at corresponding level, to which they are responsible and by which they are overseen. Such a political system of “combined legislative and executive powers” is said to have originated from the Paris Commune of the French Revolution and is believed to be superior to the tripartite political system of Western capitalist countries. With the influence of Marxist ideology in Mainland China, the separation of the three powers is, to some extent, taboo. In this sense, Mainland China’s judicial independence differs from that of Western countries and most other countries in the world, as the governmental framework of those countries is based on the separation of the three governmental powers. In contrast, China’s system has several particular characteristics of its very own. Understanding these differences and features leads to a general understanding of the “Chinese characteristics” of judicial independence. First of all, Mainland China’s judicial independence, in the official terminology, is known as “adjudicatory independence.” The independent body is the 10 11 12

See Article 126 and Article 131 of the 1982 Constitution. LI Buyun and LIU Zhiwei, “Several Issues on Judicial Independence,” (2003) 3 Chinese Journal of Law 3–4. See Article 62 of the 1982 Constitution of prc.

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people’s court and not the individual judge. According to existing laws in Mainland China, the main bodies of independent adjudication are the three statutory adjudicatory organizations, namely the individual judge, collegiate bench and adjudication committee. Among them, the collegiate bench is the primary adjudicatory organization. A relatively small number of difficult, complex cases or cases have important influences are submitted to the adjudication committee for deliberation. However, such cases are submitted to the committee at the discretion of the collegiate bench.13 Moreover, different from Western countries where judges from the same court are of equal status, judges of Chinese courts have their own respective administrative ranking. Judges of the same court can consist of superiors and subordinates, and higher-ranking judges have authority over lower-ranking judges, in a similar way to those in administrative organs. In addition to the adjudication organs, prc judicial organs include procuratorial organs and, in some criminal cases, also the public or state security organs. For instance, article 135 of the 1982 Constitution stipulates that “The people’s courts, the people’s procuratorates and the public security organs shall, in handling criminal cases, divide their functions, each taking responsibility for its own work, and they shall coordinate their efforts and check each other to ensure the correct and effective enforcement of the law.” This is quite different from the practice of most other countries. Regarding the relationship between the judicial organs and the legislative body or parliaments, the courts’ in Mainland China are not totally independent from the People’s Congress at various level. In the United States, which has a governmental system where there is a division of three powers, the checks and balances relationship exists among the three powers. The Supreme Court of the United States can even declare legislation that has been passed by congress to be invalid and unconstitutional through its judicial review authority. In Britain, where the parliament is the supreme body, the House of Lords retains the power of final adjudication over some cases despite being a legislative body. Nevertheless, on the basis of legal principals and in reality, the judicial organs in u.s. and u.k. are quite independent. In contrast, China’s judicial organs have no right of supervision over the people’s congress. As mentioned previously, they are under the supervision of and are required to report to the people’s congress. Fourth, there is a more sensitive issue, which is the relationship between the judicial organs and the ruling party, the cpc. In Mainland China, according to the preamble of the 1982 Constitution, all undertakings of “socialist construction” should be under the leadership of the cpc. Undoubtedly, the judicial organs 13

CHEN Guangzhong, op. cit. 1, 7.

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shall accept the leadership of the cpc. Organizational bodies of the cpc exist in correspondence to all levels of the courts, and a considerable number of judges are also cpc members. In Western countries, though judges may have their own political views, and are inevitably influenced by political parties, in general, judges are required by law to remain politically neutral. For example, in the United States, out of concern that the course of justice could be perverted, political activities are prohibited in the judicial realm. There are no subordinate or direct leadership relationships between political parties and the judicial organs. Political parties may not directly give orders to the judicial organs or the judges. Judges may not hold administrative posts or work as members of congress when they are in judicial office. They can neither participate in the judicial process as party members nor participate in the public activities of a political party.14 Fifth, in Western countries, higher and lower courts are arranged in a hierarchical appellate system. Though it is legally stipulated that China’s higher and lower courts have a similar supervisory function, a de facto superior-subordinate relationship has emerged. Lower courts often ask higher courts for instructions on how to handle cases. Higher courts enjoy giving directions to lower courts in regards to hearing cases. Last but not least, China’s local courts are subject to local Party committees, people’s congresses and administrative organs in regards to personnel appointment, removal, promotion, and their own fiscal security. III

Existing Deficiencies of Judicial Independence in Mainland China

A

cpc’s Interference in Court Trials

In Mainland China, courts are still to a large degree considered as instruments for yielding autocratic political power, likened to a “sword hilt” or “barrel of gun.” It has always been important for the cpc to lead and control the judicial organs. At each level of the Party Committees, there is a Committee of Political and Legal Affairs (cpla) responsible for leading and harmonizing the works of the judiciary, the procuratorates and the public security bureaus. In accordance with the principle that the party assumes responsibility for the cadres’ affairs, the presidents, vice presidents, presiding judges, vice-presiding judges, members of the Adjudication committee, and judges of the Local People’s Court at all levels will be deliberated on and determined by the Party 14 FENG Congxia, “Political Party and Justice: Relations and Distance – Another Interpretation of US Judicial Independence,” (2005) 4 Peking University Law JournaL 415.

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Committees at the corresponding level. Thereafter, the potential candidates are submitted for selection by the people’s congress at the corresponding level or to its Standing Committees for appointment. It is thus apparently impossible for judicial organs to exercise judicial power in accordance with the law without interference by cpc.15 Though the interference of Party Committees and Committees of Political and Legal Affairs in regards to case trials has decreased tremendously, some important cases still need to be reported to Party Committees in the court or Committees of Political and Legal Affairs for guidance and directions.16 Sometime, the directions and the coordination work from the party committees, especially for that work of the Committees of Political and Legal Affairs could be helpful to get civil and commercial disputes resolved in a harmonious way. But in criminal cases, because of the conflict of justice and efficiency and other factors that might be taken into consideration during the deliberation of the Committees of Political and Legal Affairs, such external interference could lead to judicial unfairness and bias. For instance, in the infamous case of SHE Xianglin, ZHAO Shuhai, ZHANG Hui and ZHANG Gaoping, the Committees of Political and Legal Affairs were found to have been meddling with the judgments. As a famous Chinese legal expert pointed out, the Committees of Political and Legal Affairs violated the principle of the integration of power with responsibility by failing to take legal responsibility/liability for the mistakenly adjudicated cases that they had meddled in.17 Furthermore, the heads of public security organs at different level generally takes the posts of Secretary or Deputy Secretary of the Committees of Political and Legal Affairs at the corresponding level. Consequently, it is easier for the public security organs to dominate the results of some criminal cases in which the Committees of Political and Legal Affairs meddled.18 B

Ambiguousness in People’s Congresses Supervision of Courts

The 1982 Constitution explicitly stipulated the right of people’s congress to supervise the performances of courts. However, it did not particularly specify the scope or methods of supervision – leaving the specific nature of such 15 16 17 18

TAN Shigui, “On Judicial Independence” (1997) 1 Tribune of Political Science and Law, 32. MA Huaide and DENG Yi, “Judicial Independence and Constitutional Amendment” (2003) 12 Law Science 31. CHEN Guangzhong’s speech delivered at one conference, see http://fxxb.legal-theory .org/?mod=info&act=view&id=207 [Accessed 21 April 2013]. CHEN Guangzhong, op. cit. 1, p. 8.

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supervision unclear. That being said, for a long time, the people’s congresses barely exercised their supervisory powers granted under the 1982 Constitution, and thus there were no problems. However, the increasing intensification of people’s congress supervision of the courts in recently years led to some problems. These problems have been made apparent in cases where the people’s congresses have overstepped their bounds and even engaged in illegal supervision, leading to violations of judicial independence. According to “The Law of Supervision by the Standing Committees of the People’s Congresses at All Levels,” which was enacted in 2006, the Standing Committees of the People’s Congresses should adopt a limited supervisory mode of hearing and examining special work reports, examining legal enforcement, and conducting inspections to supervise the performances of the courts. In practice, however, a large amount of individual standing committee members or deputies of the people’s congress have neglected the distinction between the supervision of administrative organs and the supervision of judicial organs as carried out by the people’s congresses. They have advocated the idea of supervising judicial organs in the same manner as administrative organs and proceeded to put forth “individual case supervision” as a method of supervision. In fact, the 1982 Constitution, under different provisions, has established discrete and unique relationships between the people’s congresses and the administrative organs and the people’s congresses and the judicial organs. For Instance, the 1982 Constitution specifies that governments at all levels should be responsible to and report their work to the People’s Congress and the Standing Committee at the corresponding level. But the courts are only to be responsible to the People’s Congress at the corresponding level. There is no stipulated requirement for providing any report to the people’s congresses regarding their work. The 1982 Constitution has also stipulated that members of the People’s Congress and the Standing Committee are entitled to interpellate the government and its organs in accordance with law; interpellation of the courts is not stipulated. The drafters of the 1982 Constitution were indeed very diligent and took many of the aforementioned matters into consideration. However, the 1986 revision of the Organic Law of the Local People’s Congresses and the Local People’s Governments added provisions that allowed members of the Standing Committee of the Local People’s Congresses to interpellate the courts. Similarly, in accordance with the Rules of Procedure for the Standing Committee of the National People’s Congress, enacted in November of 1987, the members of the Standing Committee of the National People’s Congress may interpellate the Supreme People’s Court. However, the Rules of Procedure for the National People’s Congress, enacted in April 1989, do not specifically outline the need for npc deputies to conduct interpellation of the Supreme People’s Court.

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However, the Law of Deputies to the National People’s Congress and to the Local People’s Congresses at Various Levels, enacted in April 1992, included a provision entitling the npc deputies to conduct interpellation of courts in accordance with the law.19 This back-and-forth repetition and hesitation fully reflects the cautiousness and reservation that the npc and its Standing Committee has demonstrated in allowing interpellation of the courts.20 C

Administrative Organs’ Control over the Funds of Courts

In Mainland China, the funding of local courts is dependent on local fiscal policy at the corresponding level, in which the budgets of the local governments contain the financial budgets of the courts. As a result, courts have no way to avoid control by administrative organs at the corresponding level.21 For instance, in the course of hearing a case regarding mining rights in 2010, the Supreme People’s Court received an official letter from the General Office of Shaanxi province, which stated, “During the first instance of judgment, the Provincial High Court misunderstood the documentary evidence cited…. If the judgment is maintained, a series of grave consequences will follow…. It will bring about major negative effects in terms of the stability and development of Shaanxi.”22 No legal investigations have been conducted in relation to this undisguised interference in judicial affairs by an administrative organ. This official letter has been satirized as the boldest official letter in the country. Unbelievably, some places have actually institutionalized this practice of interference. As reported in the Legal Daily on April 3, 1998, the government of Tieli City in Heilongjiang province put forward the “Coordinated Accreditation Notice” and “Coordinated Enforcement Notice.” Although these notices have “coordinated” in their name, implying they merely seek to guide and facilitate cooperation, they actually act as directives forcing the judicial organs to consult administrative organs; indeed, these notices stipulated that the signatures of the leading officials of the municipal government are required before certain cases may proceed to the “legal procedures” of case filing and enforcement.23 19

See Article 14 of the Law of Deputies to the National People’s Congress and to the Local People’s Congresses at Various Levels. 20 CHEN Sixi, “Conflict and Balance: People’s Congress Supervision and Judicial Independence” (2002) 6 People’s Judicature 10. 21 CHEN Guangzhong, op. cit. 1, 9. 22 WANG Guoqiang, “An Official Letter to the Supreme Court, Who is interfering with Judicial Independence,” (2 August 2010) China Youth News. 23 GUO Daohui, “Implement Judicial Independence and Contain Judicial Corruption” (1999) 1 Science of Law 8.

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Even though this practice has devastated the prestige of the courts, it had absurdly been disseminated as a practice for other local governments to learn from. These factors exacerbate the difficulty of practicing judicial independence in Mainland China. D

Influence of the Courts at Higher Level to the Lower Ones

According to the 1982 Constitution and relevant laws, the relationship between the higher and lower courts is supervisory. Courts of different level are entitled to adjudicate cases on their own discretion and are not bound by any hierarchical relationship or administrative subordination. The higher courts do not supervise the lower courts through directive instructions on specific cases, and the lower courts are entitled to enter into judgments independently. The higher courts are to maintain the correct judgments and rulings of the lower courts and to correct the wrong judgments and rulings of the latter through appellate trials, trial supervision procedures, and procedures for death sentence review.24 However, in order to avoid potential alteration of the original judgment after it is appealed to a higher court, the lower court, in contemplation of potential feedback regarding the court’s performance, higher courts for instructions and guidance on the factual and legal issues regarding specific cases. In reply, the higher courts often provide instructions to the lower courts on how a case should be decided. As such, many cases are actually decided before trial, and the trial itself becomes a mere process of “going through the motions.” As a result, the trial of first instance actually serves as the trial of second and final instance, obviously violating the Constitution and relevant procedural laws. E

Bureaucratization inside the Courts

In Mainland China, judges within the same court are not totally equal in status. An ordinary judge works under the presiding judge, president and members of adjudication committee. Judges have administrative rankings too – there is a complete hierarchy from the entry-level judges up to provincial/ministerial level judges. In addition, the Law of Judges divides judges into twelve grades and the following four major ranks: I. the Chief Justice; II. Associate Justices; III. Senior Judges and IV. Judges. Dividing the judges into grades might bring about inequality among them. Thus, lower level judges are unable to express their opinions and oppose the higher-ranking judges. Lower-level judges must abide by the opinions of superior judges regardless of whether or not 24

CHEN Guangzhong, op. cit. 1, 9.

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they hold dissenting views themselves. “In reality, the original duties of the presiding judges and presidents of the courts to supervise, arrange and instruct the coordination of judicial work have led them to have the power to make final decisions and to sign the adjudicative documents of a case.”25 The final results of legal cases are often decided by people who have never heard the cases in court – “those hearing the case do not give the decision-making power, and those giving the decisions do not hear the case.” Not only does this practice run substantially counter to the objectiveness of judicial work, it results in low efficiency and a lack of fairness and justice in regards to the final judgment. Some courts have even promulgated certain documents approving such practices, even though these practices lack of legal basis. For instance, the people’s court of Xuyi county in Jiangsu province promulgated “Several Provisions Concerning the Power of the Court President and Presiding Judges in Examining and Verifying Cases,” to intensify the court president’s and presiding judges’ micromanagement of specific cases. It has also elaborated on the management responsibilities of the directing presidents and presiding judges in terms of providing direct guidance for handling cases and providing direct guidance to judges. Moreover, it has stabilized, in the form of institutionalization, the duties of the court presidents and presiding judges in terms of managing the decision-making of a judgment and the issuance of adjudicative documents, in order to encourage the micro management of cases.26 The problems aforesaid were not formed overnight and thus are impossible to be resolved in a short period of time; but undoubtably, such problems should not be neglected merely because of the difficulty of correcting them. The question of how to reform the judicial system in order to promote judicial independence remains one of the most important and deliberated topics among scholars within the legal circles of the Mainland China and their counterparts around the world. IV

Opportunities of Judicial Independent in the New Era

The path to the establishment of a modern judicial system and the achievement of judicial independence in China has been arduous. However, generations of people in legal circles of China have never given up on those dreams. 25 26

JIANG Bixin, “On Intensifying the Functions of the Collegiate Bench” (2000) 1 Journal of Law Application 1. CHEN Guangzhong, op. cit. 1 p. 10.

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A new generation of cpc leaders assumed the reins of government at the 18th National Congress of the cpc in 2012. On December 4, 2012, at the memorial conference of the 30th anniversary of the present Constitution (1982 Constitution), Mr Xi Jinping, the General Secretary of the cpc, stressed that safeguarding the authority of the Constitution is to safeguard the authority of the common will of the Party and the people, while safeguarding the sanctity of the Constitution is to safeguard the sanctity of the fundamental interests of the people. The vitality of the Constitution lies in its implementation, while the authority of the Constitution also rests with its implementation. This has aroused the enthusiasm of jurisprudential circles to a large extent. People have once again begun to earnestly reflect on the feasibility and methods of moving forward towards judicial independence. In the meantime, after Mr Zhou Qiang assumed the post of President of the Supreme People’s Court, many outstanding cases involving injustice have been solved. Amid these occurrences and the legal qualifications of Mr Zhou, people seemed to have found hope in terms of the prospects of judicial reform in Mainland China. Judicial independence is an internationally recognized principle of the rule of law. Article 10 of the UN’s Universal Declaration of Human Rights stipulates “[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” It is well accepted that the Universal Declaration of Human Rights has already become part of the prevailing international law. The Chinese government has signed the International Covenant on Civil and Political Rights, in which Article 14 contains a similar provision. Over the three decades of reform and opening up, China has made substantial progress in terms of its economy. The Chinese economy has integrated with the world economy. Yet, the prolonged standstill in political system reform has resulted in growingly severe polarization between the rich and the poor and a large amount of social unfairness. Considering how far Mainland China’s reform and opening up has already proceeded, turning back now is out of the question. The only concern at this point is the consideration of how to move forward. Political system reform is inevitable, and judicial system reform is an appropriate area to make a breakthrough. V

Proposals on Mainland China’s Judicial Reform

The objective of judicial reform is to ensure judicial fairness, and the prerequisite for judicial fairness is judicial independence. Specifically, judicial

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independence in Mainland China comprises the independence of judicial authority as well as the independence of the judicial organs and judges. A

Eradicate Obsolete Ideology and Delineate the Independent Status of Judicial Authority in the Constitution

Owing to the influence of ideology, judicial independence has long been deemed as a privilege of capitalism and advocating judicial independence has been regarded as a denial of the leadership of the cpc in Mainland China. Though the 1982 Constitution stipulates that “[t]he people’s courts exercise judicial power independently and are not subject to interference by any administrative organ, public organization or individual,” it has generally been considered that the term of “social organization” here does not include the ruling party, the cpc. As set forth in the Constitution, the courts and the National People’s Congress do not share an equal status. The constitution stipulates that the National People’s Congress is the organ of state authority and is thus inseparable from that authority. The judicial authority of courts is derived from the People’s Congress. Therefore, if Mainland China only thinks within the boundaries of the existing ideology, judicial independence cannot emerge. The time has come to consider this issue from a different perspective. Judicial independence does not mean the courts should necessarily be on an equal footing with the People’s Congress. Britain is a country with parliamentary sovereignty. The political system places the parliament in the supreme position, and yet the principle of judicial independence became established long ago. It is obvious that so long as we can think beyond the boundaries of existing ideology, it will be possible to ensure the superior position of the People’s Congress in the national political system while achieving judicial independence, which was in fact achieved in China in accordance with the 1954 Constitution. As a result, China could possibly return to the 1954 Constitution in regards to upholding the provisions that “[t]he people’s courts administer justice independently and are subject only to the law.” As a matter of fact, some scholars have also proposed better ideas, such as the idea that “the people’s courts administer justice independently and be subject only to the Constitution and laws.” They believe such a provision is more accurate and complete and serves as an ideal proposal to establish the principle of judicial independence.27 27

MA Huaide and DENG Yi, op. cit. 16, 37.

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Adjust the Relationships among Courts, The Ruling Party and other State Organs to Ensure the Courts Independently Exercise Judicial Authority according to Law

Priority must go to the consideration of the relationships between the judicial organs and the ruling party. In the decades since the establishment of the prc, it has always been a challenge for cpc to correctly handle the relationships among the ruling party, state organ, administrative agencies and judicial organs. The lessons that have resulted from the Party taking the place of the government and from the lack of separation between the work of the Party and that of the government have been harsh. As a matter of fact, the abovementioned view, which was suggested by the previous generation of Chinese jurists in the 1950s, is an ideal solution that is also in full compliance with the current stance of the cpc. cpc leaders have expressed that “rule of law is the fundamental strategy of the Party for leading the people and governing the country. Rule of law is the fundamental matter for the managing of state affairs.” “Party organizations at all levels must exercise their power within the ambit of the Constitution and laws.” According to current cpc policies, the “party leadership” mainly refers to the political, ideological and organizational leadership. The Constitution and laws are established by the Party to lead the people. Therefore, judicial organs independently exercising judicial authority in accordance with the law is, in essence, implementing the policies of the ruling party, effectively executing the political measures of the cpc. By interfering in individual cases, not only would the cpc be going against the established purpose of the laws and subsequently damaging the authority and reputation of the cpc, but they would also be potentially engendering corruption and injustice. Hence, interference in trials in courts by cpc committees at any level should be regarded as unlawful. It should be clarified that cpc leadership in regards to judicial work is embodied in the Party leading the people to establish the Constitution and laws and that party organizations at all levels should not meddle with individual cases. The supervision by the People’s Congress over courts has been stipulated in the 1982 Constitution and related laws. The mission now is to define the scope of the supervision by the People’s Congress over the judiciary and to prevent it from infringing on the independence of the judiciary in regards to trials in courts. Scholars have proposed that the supervision of the People’s Congress should be performed within three areas. The first area of supervision should be in regards to legal personnel. This supervisory task should involve a focus on whether the judges have exercised good conduct and have good legal qualifications and whether derelictions of duty have been committed, including the

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taking of bribes or bending of the law for personal gains. Once the judges are found to have engaged in misbehavior, they should be removed from office. Second, the judiciary system itself should be supervised. Supervision should be done to verify whether the judicial system is operating orderly or whether there are issues that need to be addressed. If the judicial system is found to be hindered and unable to administer justice properly, measures should be taken to remove such obstructions and refine the system. The third area to be supervised is the area of judicial policies. This type of supervision should be focused on whether the policies of the judicial organs are being exercised in accordance with the Party’s directions, principles and policies.28 Since judicial work is highly professionalized, legal personnel must possess a good command of specialized knowledge and follow specific procedures. The People’s Congress should avoid the monitoring of specific cases so as not to hinder judicial organs from executing independent adjudication. The 1982 Constitution of prc has explicitly forbid administrative organs from interfering with the independent exercising of judicial authority by courts in accordance with the law. However, owing to the long-established concept of placing administration over judicature and prioritizing efficiency over fairness, in the actual power structure, judicial organs are often found to be subject to administrative organs. Moreover, administrative organs have control over the financial budgets of judicial organs, which further enhances the superiority of the administrative organs in the power structure. Accordingly, a refined and complete fiscal guarantee system for courts should be established to tackle this issue. Financing for the courts should be enumerated at national level, and the judiciary should be funded by the central government directly in order to remove the financial reliance of local judicial organs on the government. Meanwhile, the mentality of having administrative organs administer their duties in accordance with the law should be reinforced. Unlawful acts by administrative organs should be held accountable so as to establish the authority of judicial organs. C

Advance Judicatory System Reform to Achieve Proper Independence of Judges

The independence of judges is the anchor point and ultimate goal of judicial independence. Considering the current political environment and the qualifications of judges in Mainland China, it is impractical for Mainland China to completely imitate the systems of independent judges present in the West. 28

CHEN Sixi, op. cit. 20, 10.

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A more feasible means would be to strengthen the existing judicatory organizations, particularly the collegiate benches and single judges, in order to ensure that they independently administer justice in accordance with law. The Supreme People’s Court could establish relevant regulations to abolish the approval right of court presidents and presiding judges in regards to judgments pertaining to individual cases. Such administrative practices are incompatible with judicial work, violate the underlying principles of judicial work and are likely to lead to miscarriages of justice. In the long run, Mainland China could also eliminate the hierarchy of judges, streamline the bureaucracy in courts, and realize proper equality of judges in the judiciary. Another safeguard for ensuring the independence of judges would be providing career stability. Mainland China should legislate for the protection of judges who are independently trying cases from improper harm inflicted by other organs. With the exception of derelictions of duties or severe criminal charges, judges should not be removed from their posts. Meanwhile, the management system of judges should be reformed, and a court work group comprised of judges, judge assistants, court clerks, bailiffs, and support staff should be established. Distinct management measures should be established for different groups so as to maintain the core position of judges in trials, improve their remuneration and terms of employment accordingly, enhance their professional sense of honor and maintain the stability of teams of judges. VI Conclusion Achieving judicial independence in Mainland China is an arduous yet crucial mission. Judicial independence has been on a rocky path in Mainland China since its introduction into the country more than one hundred years ago. However, judicial independence is now a benchmark for a country that practices the rule of law, rendering it quite difficult to find a reasonable excuse to blatantly reject the concept. Moreover, today’s China needs an authoritative and fair dispute settlement body. The large number of legal petitions and the increasingly difficult work of maintaining stability have fully demonstrated this necessity. Therefore, whether on its own accord or reactively, it is imperative that Mainland China launch judicial reforms, and when it does, the realization of judicial independence will be within grasp.

Chapter THIRTY

Administrative Justice System in Italy Giuseppe Franco Ferrari* I

Introduction: The Administrative Justice System in Italy

The Italian administrative justice system is organized on a two-tier basis. The court of first instance is the Administrative Tribunal (tar) and has mainly consultative functions and support the work of the national administration through advisory opinions. The second level court is the Council of State, whose sections III, IV, V, and VI are jurisdictional. The division of competences between administrative judges and civil or ordinary judges is unique in Europe and in a wider comparative landscape. Since 1889, when the jurisdictional role of the Council of State was reactivated, it depended on the subjective position activated by the plaintiff. When he/she alleges to have been damaged in a right awarded full protection against a public administration, such a claim must be introduced in an ordinary court; to the contrary, when he/she alleges a legitimate interest, it has to be protected by an administrative judge. This dividing line has traditionally proved quite uneasy to be applied, but it was formalized in art. 103 of the 1948 Constitution. Necessarily, since 1907, in fields where the right/legitimate interest distinction is too hard to draw, an exclusive competence of the administrative judge has been established, in enumerated subjects. This was established in order to prevent the claimant from being compelled to sue the administration first in an administrative court to get the annulment of the administrative act and later on in a civil court to get his damage restored with a pecuniary compensation. This system resembles the French tradition, but the division of competences and its basis have something in common only with the Belgian legal system. * Giuseppe Franco Ferrari is a tenured professor of Comparative public law at “L. Bocconi” University, Milan; former tenured professor at Teramo (1986–1990) and Pavia (1990–1999). He is also president of the Italian Association of Public comparative and European law - dpce (1999 till nowadays), member of the committee of the Italian Association of Comparative law (aidc), editing director of dpce review. He is co-editor of the manual “Diritto pubblico 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).

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_031

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In 2010 the whole machinery was revised through the adoption of an “administrative procedural code,” adopted with the legislative decree 104/2010. Furthermore, in the last ten years or so, several cases both decided in the Council of State and by the Cassation Court have tried to order and simplify the administrative process and its collateral problems, even independently of its legal regulation. II

The “Mediation” Procedure

The first example of the adrs is the so-called “mediation.” Its function in civil and commercial controversies concerning disposable claims is defined by legislative decree no. 28/2010, following the delegation statute no. 69/2009, which implemented the European directive. This directive, in defining its ambit of application, explicitly excludes its utilization in the fiscal and administrative sectors and in customs matters. This “administered” mediation is a procedure fulfilled by private or public bodies listed in a register created by the Ministry of Justice. The legislative decree describes such activity as “committed to an impartial third party and aimed at assisting two or more subjects both in looking for the search of a friendly agreement in order to compose a controversy and in formulating a proposal for the resolution of it.” The common rationale of the mediation procedure is to deflate the amount of controversies burdening the docket of civil judges. The European directive insists on the principles of due process, impartiality of the subject in charge, efficacy, transparency, quickness, equity, privacy, and money-saving. National legislators are free to conform the domestic instruments within such a framework. The mediation procedure can be either voluntary or compulsory. It can also be used in connection with the exercise of judicial functions. Whoever wants to reach the conciliation of a controversy in the civil or commercial field can freely and voluntarily activate such a procedure and the other parties are free to participate. The details of its working are to be included in specific regulations, adopted by the accredited bodies. By choosing the accredited body the parties accept its regulation as governing the mediation procedure between them. The procedure has to be closed within the fixed term of four months, which makes it very quick, at least in comparison with the lasting of an ordinary suit, which the legislative has tried to shorten several times, without fully succeeding. When an agreement is reached, the mediator is required to underwrite a statement, being title for executive expropriation, for judicial mortgage registration, and for implementation in specific form.

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When a full agreement proves unreachable, a conciliation is still possible, if the parties insist in looking for it. Compulsory mediation was introduced in the Italian legal system through art. 5.1 of legislative decree no. 28/2010. The plaintiff in a suit concerning family law, property and leasing rights, bank, financial or insurance contracts, inheritance matters, defamation through the press or other means, medical responsibility and damages from circulation of vehicles or ships, was compelled to complete a mediation procedure as condition of admissibility of the civil suit. The lawyers as a corporation reacted against this kind of adr, alleging the insufficiency of due process and counsel. The Constitutional Court, in a very recent decision,1 declared unconstitutional this kind of compulsory procedure, without entering the merit of the problem but simply noticing a lack of delegation, since the compulsory version was not explicitly included in the delegation statute. Nor do European rules impose any compulsory formula, leaving it up to the national legislators to opt for one or another form of mediation. The only decision of the Court of Justice concerning this topic2 invokes the principle of proportionality in order to state that a filter before a judicial action can be imposed, but it cannot lead to a decision binding the parties, it cannot generate an excessive delay of the jurisdictional protection, it must interrupt limitation periods of rights, it must not be unbearably expensive and finally it must not exclude injunctions or some preliminary remedy in cases of extreme urgency. Summing up, at this stage the Italian legal system no longer affords this mediation procedure. Mediation survives only in the voluntary version, even in case of controversies implying public administrations. III

Arbitration in Administrative Law

Another means of adr is, of course, arbitration. Through arbitration two or more parties decide to devolve the resolution of a controversy concerning disposable rights to one or more arbiters, neutral adequately qualified subjects, instead of a jurisdictional authority, through the stipulation of an arbitration clause or convention. In the Italian legal system such a possibility is included in article 806 ff. of the civil procedure code, adopted in 1942 and subsequent amendments. 1 Decision of the Italian Constitutional Court, no.272 of December 6, 2012. 2 Decision of 18 March 2010, sec. Fourth, C-317/08, 318/08, 319/08, 320/08.

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Part of the Italian scholarship,3 and the most recent administrative law cases qualify arbitration, both according to civil procedure rules and without procedure rules, as a private law phenomenon, completely outside the jurisdictional sphere. Other authors prefer to describe arbitration as a form of jurisdiction and its final decision as a judicial act.4 Actually, both theories can be said to coexist in the Italian system, since two types of arbitration are possible: the form implying the application of civil procedure rules and the one not implying the observance of such rules. The former is concluded by an arbitration award, which is perfectly assimilated to a judicial decision, even from the viewpoint of the remedies both on the merit and for procedural reasons. To the contrary, the latter looks more like a contract, following friendly composition between the parties, as the Turin Cassation Court stated as long as at the beginning of the twentieth century.5 The distinction is particularly relevant when the arbitration procedure concerns a controversy belonging to the competence of the administrative law judge. While in fact, in cases about subjective rights included in the administrative jurisdiction arbitrations under civil procedure rules are allowed, the form not subjected to such rules is precluded, due to the nature of public administrations. For the same reasons, though the civil procedure code contemplates arbitrations in terms of substantive rules, both are governed by legal rules and in equity. However, the former is allowed when a public administration is a party and the latter obviously is not, because public bodies cannot as a matter of principles be bound by non-legal provisions of decisions. After 2000, according to article 6.2 of legislative decree 104/2010, and now to article 12 of legislative decree 104/2010, controversies about rights belonging to the jurisdiction of administrative judges can always be decided by way of arbitrations. Before 2000, the common opinion of Italian case law was that arbitration procedures with public bodies as parties could be activated only with reference to controversies in civil law matters where public administrations had behaved as private subjects, i.e. using private law instruments, or where a statute made arbitration procedures compulsory in the field of public procurements. Controversies in matters implying legitimate interests and public functions or subjective, disposable or non-disposable, rights belonged to the “exclusive” jurisdiction of administrative judges, because arbitration was considered a substitute for ordinary civil jurisdiction. 3 Chiovenda, Satta; Civil Cassation, dec. no. 21585 of 2009. 4 See the writngs of Tarzia, Ricci. 5 Dec. 27.12.1904.

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Yet, even after 2000 and nowadays, no arbitration is allowed in disputes concerning legitimate interests confronting public functions in the strict meaning and therefore non-disposable and reserved to the cognition of a judge.6 For the same reason, as suggested above, arbitrations without civil procedure rules and arbitrations in equity are forbidden when a public body is party, due to lack of transparency and public control implicit in private negotiations,7 and to non-negotiable nature of the interests involved. All clauses authorizing or prescribing arbitration clauses beyond these limits are void.8 As an exception to such a rule, a controversy concerning the compensation of damages caused to legitimate interests in order to have them quantified after a judicial decision stating the compensation in principle, because it is assumed that the plaintiff at that stage already has finally a right to compensation.9 Another peculiarity of the arbitration procedure which assumes even more special character when a public subject is part is that the arbitration final decision can be appealed in the Court of appeals of the competent circuit. This means that through the arbitration procedure, when allowed, the parties, not only the plaintiff, can by-pass the rules governing the dividing line between jurisdiction, because the arbitration can be introduced in a field belonging to the administrative jurisdiction but the second instance decision is made by a judge belonging to the ordinary civil jurisdiction.10 Finally, should the arbitration decision, after becoming res judicata, be disregarded by one of the parties, possibly the public administration,11 absent a contempt action, the party having interest can sue the other one in an implementation action in an administrative court, as if it were alleging the violation of an administrative law judge decision. A quite different story with regard to arbitration must be told in the public procurement sector, where controversies concern rights and the relationship between the parties has a contractual nature. In this field the legislator’s attitude has been quite schizophrenic. In 1994 the so-called Merloni statute, after the name of the pro tempore Minister, forbade it for a while with reference to works and services, while in 1997 another statute made it compulsory in cases of reservations by the contractor during the execution of public contracts. 6 7 8 9 10 11

Council of State, ch. VI, dec of 17.6.2003, no. 3447. Cass, Grand Chamber, dec.no. 8987/2009. Cass., Grand Chamber, ord. 27336 of 18.5.2008. Art. 7 of the Administrative Procedure Code. The Council of State shares such interpretation, after some initial doubts: Ch.IV, dec. np. 6812 of 31.12.2007). Art. 112 of the Ad. Proc. Code.

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The Constitutional Court declared it unconstitutional because arbitration must be voluntary and not obligatory.12 A third Merloni statute, at that point, created a special procedure to be activated in an Arbitration Chamber created inside the Independent Authority for the control of public contracts. Presently, the Code of Public Contracts,13 has been revised several times and the last version entered into force on November 28, 2012. This version contains specific provisions contemplating that when in the process of execution of a public contrary a controversy arises and no friendly agreement is possible, an arbitration procedure can be started after authorization of the top management body of the subject of public administration. Such a possibility must yet be included since the beginning in the announcement of the procurement, together with the text of the arbitration clause. It must be reminded, however, that the stability statute of 2008,14 tried again to forbid arbitrations in the public contract sector, rendering arbitration clauses void. Its application has been put off a couple of times and then abrogated by legislative decree 53 of 2010. 12 Dec.77/1997. 13 Lgs. d. no. 163/2006, art. 241. 14 l.288 of December 24, 2007, Arts. 3.19 and 3.20.

Part Eight International Standards of Judicial Independence

∵

chapter THIRTY-ONE

Judicial Independence and the Three Highest Courts in Austria Walter H. Rechberger* I Introduction It is self-evident that judicial independence is one of the main characteristics of the Austrian procedural law, being laid down in Art. 87 of the Austrian Federal Constitutional Act (Bundes-Verfassungsgesetz, fca). The Austrian Constitution was enacted in 1920 and re-adopted in 1945 after World War II. It is based on different fundamental principles:1 The democratic principle, the republican principle, the federal principle, the separation of powers2 and the rule of law.3 These principles take a prominent role among the keystones constituting the Austrian Constitution. Whenever a total revision of these principles is considered, a referendum among Austrian citizens is to be held; as for a partial revision, a referendum is only compulsory if one third of the members of the National Council (Nationalrat) or the Federal Council (Bundesrat) so demands (Art. 44 Austrian fca).4 The rule of law in Austria has two main aspects: on the one hand it requires the entire public administration to be based on law. On the other hand, individuals can pursue their rights not only in criminal or civil cases by means of the ordinary court system, but also for administrative purposes, by addressing the respective administrative authorities (or by being addressed by them).5 Regarding the law of civil procedure, this basic principle again has two aspects: * Professor of Law at the Vienna University School of Law where he acted as dean from 1999 to 2006, currently he is head of the Department of Civil Procedure (Institut für Zivilverfahrensrecht). 1 Öhlinger/Eberhard, Verfassungsrecht9 (2012) mnr 66 et seqq; Walter/Mayer/Kucsko-Stadlmayer, Bundesverfassungsrecht10 (2007) mnr 146. 2 Some scholars do not consider the separation of powers as a principle of its own but attribute a place within the rule of law to it (cf. Berka, Lehrbuch Verfassungsrecht4 [2012] mnr 115). 3 Rechberger, Austria, in Taelman (ed), International Encyclopaedia of Laws: Civil Procedure (2011), mnr 3. 4 Mayer, B-VG4 (2007) 223 et seq; Berka, Lehrbuch Verfassungsrecht4 (2012) mnr 111. 5 Rechberger, Austria, in Taelman (ed), International Encyclopaedia of Laws: Civil Procedure (2011), mnr 7. © koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_032

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on the one hand all jurisprudence shall be based on law and on the other hand independent civil courts are to be installed.6 Judicial Independence is not enumerated in the above mentioned list of fundamental principles; however, it is an important aspect of the rule of law principle. In the following, the Austrian court system will be described with an emphasis on the independence criterion and the three Highest Courts in Austria. II

Existence of Independent Courts

Although not seen as a fundamental principle by itself, independence and impartiality of judges are so prominent criteria that they are explicitly referred to in the Austrian Federal Constitutional Act (fca) and in the European Convention on Human Rights (echr) as well. III

Independence of a State Court Judge

Art. 87 fca provides for the legal framework for the independence of judges belonging to state courts. Independence in the sense of this Article means that judges do not have to comply with any instructions given in the exercise of their judicial office.7 Independence is not a privilege for judges, but a guarantee for the legal subjects.8 On the one hand, judges are not bound by any instruction in the general exercise of their judicial office, but on the other hand, judges have to comply with instructions when dealing with the judiciary’s administrative issues.9 Moreover, the Austrian fca contains provisions of incompatibility. Members of the Federal Government, a Provincial government, a general representative

6 Öhlinger/Eberhard, Verfassungsrecht9 (2012) mnr 74. These two criteria par example are reflected in Art. 97 of the German Constitutional Law (Grundgesetz). 7 Walter/Mayer/Kucsko-Stadlmayer, Bundesverfassungsrecht10 (2007) mnr 770; Öhlinger/ Eberhard, Verfassungsrecht9 (2012) mnr 621; Walter, Verfassung und Gerichtsbarkeit (1960) 54, 58; Walter, Die Gerichtsbarkeit, in Schambeck (ed), Das österreichische BundesVerfassungsgesetz und seine Entwicklung (1980) 443 (466); Rechberger/Simotta, Zivilprozessrecht8 (2010) mnr 51. 8 Walter, Verfassung und Gerichtsbarkeit (1960) 54. 9 Walter/Mayer/Kucsko-Stadlmayer, Bundesverfassungsrecht10 (2007) mnr 770; Öhlinger/ Eberhard, Ver-fassungsrecht9 (2012) mnr 622; Walter, Verfassung und Gerichtsbarkeit (1960) 62; Walter, Die Gerichtsbarkeit, in Schambeck (ed), Das österreichische BundesVerfassungsgesetz und seine Entwicklung (1980) 443 (467).

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body or the European Parliament are excluded from being appointed as judges to the Supreme Court (Art. 92 fca). This provision ensures that judicial and administrative powers are separate in accordance with the already mentioned general principle of separation of powers.10 However, independence from administrative authorities is just one point, but of course a very important one. However, even independent judges are bound to a certain degree. First of all, they are bound by law.11 This issue will be dealt with in more detail at a later point. Moreover, regarding preliminary questions a state court may be bound by the (final) decision of another state court and even by a decision of an administrative authority12 or a criminal court.13 However, the independence of judges in the general sense is not in jeopardy at all.14 The binding effect of the law and of decisions by different authorities and institutions improves legal certainty.15 Moreover, the overriding principle of separation of powers does not admit any other result. Another aspect which puts a question mark on judicial independence can be found in the Austrian court practice. Judges tend to appoint the same experts over and over again. Such a constant cooperation can lead to a decrease of accuracy of the examination of the expert opinion by the judge. If the judge does not examine the expert opinion at all, the parties’ right to a legally competent judge is violated.16 On the one hand, a repeated appointment as an 10 11 12

See Art. 94 Austrian fca. Walter, Verfassung und Gerichtsbarkeit (1960) 54. For detailed information see Kralik, Die Bindung der Gerichte an Entscheidungen der Verwaltungsbehörde, JBl 1975, 309; Walter, Die Bindung der Zivilgerichte an rechtskräftige präjudizielle Bescheide nach AVG im Rahmen der Zivilprozessordnung im Vorfra­ genbereich, ÖJZ 1996, 601; Spitzer, Die Bindungswirkung von Verwaltungsakten im Zivilprozess, ÖJZ 2003, 48; Schragel in Fasching/Konecny (eds), Kommentar zu den Zivilprozeßgesetzen II/22 (2003) § 190 ZPO mnr 11 et seqq; Fucik in Rechberger (ed), ZPO3 (2006) § 190 ZPO mnr 5; Ballon, Der Einfluß der Verfassung auf das Zivilprozeßrecht, ZZP 96 (1983) 409 (446 et seq). 13 For detailed information see Rechberger, Der Wiedergänger – Zur Rückkehr der Bindung an strafgerichtliche Entscheidungen im österreichischen Zivilprozessrecht, FS Gaul (1997) 539. 14 Regarding the compliance with Art. 6 echr see Grabenwarter/Pabel, Europäische Menschenrechts-konvention5 (2012) § 24 mnr 38; Rechberger, Zur Entwicklung des Zivilverfahrens in Österreich in den letzten 50 Jahren, in FS 50 Jahre Oberösterreichische Juristische Gesellschaft (2010) 54 (60 et seq); Peukert in Frowein/Peukert, Europäische Menschenrechtskonvention3 (2009) Art. 6 mnr 205. 15 Cf. Ballon, Der Einfluß der Verfassung auf das Zivilprozeßrecht, ZZP 96 (1983) 409 (448). 16 Rechberger, Die Rechtsstellung der Beteiligten beim Sachverständigenbeweis, SV Sonderausgabe 2012, 24 (27); Deixler-Hübner, Fortschreitender Einsatz von Sachver­ ständigen (Teil I), RZ 1992, 251 (252); Krammer, Die “Allmacht” des Sachverständigen

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expert by a judge may affect the impartiality of the expert; on the other, however, such an approach may be beneficial.17 Art. 6 echr also provides for the independence of state courts. State courts and judges belonging to state courts have to be independent of the administrative authorities and the parties.18 Besides the freedom from instructions, the main characteristics of independence are a long term of office and the general irremovability.19 These criteria are provided for in Art. 88 Austrian fca. According to this provision, the age limit upon whose attainment judges will retire permanently is to be determined by Federal law. Sec. 99 of the Act governing the Service of the Judiciary (Richter – und Staatsanwaltschaftsdienstgesetz) determines that a judge has to retire at the end of the year in which he turns 65 years old. Apart from that, judges may be removed from office or transferred against their will or superannuated only in cases and ways prescribed by law and on the grounds of a formal judicial decision. A temporary suspension of judges from office may take place only by decree of the court’s president or by the higher judicial authority together with simultaneous reference of the matter to the competent court.20 However, these provisions do not apply to transfers and retirements which become necessary because of changes in the courts’ organization. In such a case, the law will lay down the period of time within judges can – without the formalities otherwise prescribed – be transferred and superannuated. Moreover, justice must not only be done; it must also be seen to be done.21 This principle triggers the need for orally held public hearings in civil and criminal cases (Art. 90 fca).22 This guarantee is also to be found in Art. 6 echr (1990) 5 (18); Steininger, Der Sachverständige in der Gerichtsbarkeit, SV 1981/3, 9 (11); Dolinar, Der Sachverständigenbeweis – eine rechtsvergleichende Analyse, in FS Sprung (2001) 117 (132 f). 17 Rechberger, Die Rechtsstellung der Beteiligten beim Sachverständigenbeweis, SV Sonderausgabe 2012, 24 (27). 18 Grabenwarter/Pabel, Europäische Menschenrechtskonvention5 (2012) § 24 mnr 32; Mayer, B-VG4 (2007) 668; Peukert in Frowein/Peukert, Europäische Menschenrechtskonvention3 (2009) Art. 6 mnr 204. 19 Grabenwarter/Pabel, Europäische Menschenrechtskonvention5 (2012) § 24 mnr 33. 20 Cf. Walter, Die Gerichtsbarkeit, in Schambeck (ed), Das österreichische BundesVerfassungsgesetz und seine Entwicklung (1980) 443 (467 et seq); Walter/Mayer/KucskoStadlmayer, Bundesverfassungsrecht10 (2007) mnr 771 et seqq. 21 European Court of Human Rights, Judgment 17.01.1970, Delcourt v. Belgium, Nr 2689/65 mnr 31; Peukert in Frowein/Peukert, Europäische Menschenrechtskonvention3 (2009) Art. 6 mnr 205. 22 See also Walter, Die Gerichtsbarkeit, in Schambeck (ed), Das österreichische BundesVerfassungsgesetz und seine Entwicklung (1980) 443 (475 et seq); Mayer, B-VG4 (2007) 326.

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which states that in the determination of his civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time conducted by an independent and impartial tribunal established by law. As a consequence, independence is also a question of appearance: The mere appearance of non-independence may be sufficient to challenge a judge successfully. IV

Impartiality of a State Court Judge

Art. 6 echr inter alia provides for the impartiality of a tribunal deciding on civil rights and obligations. Impartiality means absence of prejudice or bias.23 Hence, the court must not be biased with regard to the decision or influenced by information from outside the court room or any pressure whatsoever. Instead, the judge has to base his opinion on objective arguments based on what has been put forward during the trial.24 A court must be impartial according to the subjective and the objective approach. The first refers to the personal impartiality of the judges involved. This impartiality is presumed as long as the contrary has not been proven.25 The latter refers to the way the tribunal is composed and organized; a certain coincidence or succession of functions of one or more of its members may give rise to doubts as to the impartiality of the tribunal in general or as to the specific member.26 If there are justified reasons for having such doubts, even if subjectively there is no concrete indication of bias of the person in question, this amounts already to an inadmissible jeopardy of the confidence which the court must inspire in a democratic society.27 However, under specific circumstances, a party is able to waive the right to an impartial judge.28 V

Independence and Impartiality in the Austrian Civil Procedure

In court proceedings, judges shall be impartial regarding each individual case they have to deal with, especially in relation to the parties and the parties’ 23 24 25 26 27 28

echr, 01.10.1982, Piersack v. Belgium, no. 8692/79, para. 30. Viering in Van Dijk/van Hoof/van Rijn/Zwaak (eds), Theory and Practice of the European Convention on Human Rights4 (2006) 614. echr, 01.10.1982, Piersack v. Belgium, no. 8692/79, para. 30. echr, 26.02.2002, Morris v. United Kingdom, no. 38784/97, para. 58. echr, 01.10.1982, Piersack v. Belgium, no. 8692/79, para. 31. Grabenwarter/Pabel, Europäische Menschenrechtskonvention5 (2012) § 24 mnr 41; Viering in Van Dijk/van Hoof/van Rijn/Zwaak (eds), Theory and Practice of the European Convention on Human Rights4 (2006) 623.

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counsel. Sec. 19 of the Austrian Judicature Act (Jurisdiktionsnorm) reads that the participation of a judge may be objected because he is barred from hearing the case at hand or because of sufficient reasons that give rise to doubts as to the judge’s impartiality or independence. This standard of independence and impartiality applies to every civil or criminal judge, even Supreme Court judges.29 Regarding judges from the other Highest Court there are different provisions applicable: see Sec.  12 Constitutional Court Act (Verfassungs­ gerichtshofgesetz 1953) and Sec.  31 Administrative Court Act (Verwaltungs­ gerichtshofgesetz 1985). VI

Right to a Lawful Judge

The principle of independence and impartiality of judges is supplemented by a further principle: the constitution and competence of the courts is laid down by Federal law and that no one may be deprived of his lawful judge (Art. 83 fca). Cases shall be allocated in advance among the judges of a court for the period provided by the law on Court organization (Art. 86 fca). A matter attributed to a judge in accordance with this allocation may be removed from his competence (by decree of the judiciary’s administrative authorities) only in case he is prevented from fulfilling his obligations or if he is unable to fulfil his duties within a reasonable time.30 VII

Equality of the Three Highest Courts in Austria

The current version of the Austrian Federal Constitutional Act provides for three different and equal highest courts: the Constitutional Court (Verfassungsgerichtshof), the Administrative Court (Verwaltungsgerichtshof) and the Supreme Court (Oberster Gerichtshof). This reflects to a certain degree the principle of separation of powers: • the Constitutional Court deals with constitutional matters, • the Administrative Court with administrative matters and • the Supreme Court with civil and criminal matters.31 29 30 31

For further information see Rechberger/Simotta, Zivilprozessrecht8 (2010) mnr 58 et seqq. See also Walter, Die Gerichtsbarkeit, in Schambeck (ed), Das österreichische BundesVerfassungsgesetz und seine Entwicklung (1980) 443 (462 et seq). RZ 2012, 130; Kodek, ÖJZ 2008, 216 (221).

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451

The Austrian Supreme Court32

The Supreme Court is responsible for safeguarding legal uniformity, legal certainty and the development of the law in criminal and civil matters. It is the highest and therefore final appellate instance in those matters as provided by Art. 92 para. 1 fca. Its anchoring within the Austrian Federal Constitution means that it would be in breach of the constitution to establish a further appellate forum for civil or criminal cases ranging above the Supreme Court of Justice.33 Thus, it takes the form of the court of last resort within the system of ordinary courts (Sec. 1 para. 1 of the Supreme Court Act). However, the right of appeal to the Supreme Court may be restricted by value of the amount in dispute as well as by the significance of the subject-matter of the proceedings. These restrictions are provided for in ordinary statutes and aim at preventing the Supreme Court from being subjected to an excessive workload. The Supreme Court has 58 members – a President, two Vice Presidents, presiding justices of panels (referred to as Senatspräsidenten and Senatspräsi­ dentinnen) and other justices (the so-called Hofräte or Hofrätinnen). The Court always sits and decides in panels; at the moment, it comprises seventeen panels, eleven of which are responsible for civil matters, whereas five for criminal cases, and one acts as an Appellate Court for competition law cases (Kartellobergericht).34 Additionally, there are panels for specific purposes, e.g. for disciplinary purposes,35 and also one panel for challenging procedures. Normally, a panel consists of five judges (so called simple panels according to Sec. 5 Supreme Court Act),36 whereas in some cases of only minor importance (specified in Sec. 7 Supreme Court Act) the panels consist of just three judges. In fundamental cases the number of judges is raised to eleven (the so called “verstärkter Senat”). Such cases of fundamental importance are cases where the panel wants to deviate from persistent case-law or from previous decisions rendered by a panel of eleven Supreme Court judges.37 32 33 34

35 36 37

See www.ogh.gv.at/en. Mayer, B-VG4 (2007) 329. However, the latter panel is made up of only three professional judges (unlike the normal make-up of a simple panel). In this case, the two other judges are replaced by two expert lay judges. The Supreme Court is also the highest disciplinary tribunal for judges and the disciplinary court of last instance for notaries public. In questions of cartel law, and in labor and social issues two of the five panel members are expert lay judges. Cf. criticism by Ballon, Der Einfluß der Verfassung auf das Zivilprozeßrecht, ZZP 96 (1983) 409 (444 et seq); F. Bydlinski, Juristische Methodenlehre und Rechtsbegriff2 (1991) 514 et seq.

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The Austrian Constitutional Court38

The Constitutional Court is the highest state body in Austria when it comes to (re-)examine constitutional law. The Austrian fca lists in its Artt. 137 et seq the various functions and responsibilities the Austrian Constitutional Court has. In principle, the Constitutional Court cannot take action on its own motion. Even if the justices are of the opinion that a certain law is problematic as regards its constitutionality, they cannot act until a person or an institution initiates proceedings enabling the intervention of the Court. When an application (Antrag) or a complaint (Beschwerde) is filed with the Constitutional Court, the Court is – assumed that the application or the complaint are admissible – required to decide. However, there are also restrictions on the right to file an application or a complaint to the Court, e.g. the exhaustion of other remedies. The review of norms (Artt. 139 to 140a fca; Normprüfung) is the core of every constitutional review. The Constitutional Court generally pronounces whether Federal or Province laws are unconstitutional (Art. 140), a proclamation on the republication of a law is illegal (Art. 139a) or an ordinance or a treaty are contrary to the law (Artt. 139, 140a) ex officio in so far as the Court would have to apply such law, proclamation or ordinance in a pending suit. Moreover, individual persons can file an application alleging direct infringement of personal rights resulting from such illegality or unconstitutionality insofar as the ordinance, proclamation, law or treaty has become operative for the applicant without the delivery of a judicial decision or the issue of a ruling. In case of a judicial or an administrative proceeding, courts and independent administrative tribunals39 may also file an application. Last but not least, the Federal Government can ask for an examination of Province law and the Province Government regarding Federal law. Additionally, the Austrian Constitutional Court pronounces whether Federal laws are unconstitutional on application by one third of the National Council’s members or one third of the Federal Council’s member. Apart from that, the Constitutional Court has several more competences like jurisdiction • regarding special administrative matters (Sonderverwaltungsgerichtsbarkeit; Art. 144 fca) • in conflicts of jurisdiction (Kompetenzkonflikt; Artt. 138, 126a and 148 et seq fca) • in matters of pecuniary claims under public law against the federation, a federal state or a community (Kausalgerichtsbarkeit; Art. 137 fca) 38 www.vfgh.gv.at/cms/vfgh-site/english/index.html. 39 Special Administrative Courts will be established instead of the independent administrative tribunals. The amended version of Art. 129 fca will come into force on 1 January 2014.

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• in electoral matters (Wahlgerichtsbarkeit; Art. 141 fca) and • in impeachment cases regarding violations of laws by the highest bodies of the Republic (Staatsgerichtsbarkeit; Artt. 142 and 143 fca) X

The Austrian Administrative Court

The Austrian Administrative Court – together with the independent administrative tribunals and the Asylum Court40 – is one of the authorities  competent  to secure the legality of all acts of administration (Art. 129 fca). The Administrative Court pronounces on complaints which allege illegality of rulings by administrative authorities including the independent administrative tribunals, or breach of the onus on administrative authorities including the independent administrative tribunals to take a decision (Art. 130 fca). XI

The Relationship between the Highest Courts in Austria

In the course of time, there had been drafts to establish an additional committee to coordinate the jurisprudence of the three courts, especially if they express different views on the same legal question. Such a committee exists for example in Germany (Art. 95 para. 3 Grundgesetz and Gesetz zur Wahrung der Einheitlichkeit der Rechtsprung der obersten Gerichtshöfe des Bundes).41 Other plans contained the idea of only one highest court like in Switzerland instead of the existing threefold system.42 However, these ideas have not been and will not be implemented in the near future. XII

The Relationship between the Constitutional and the Administrative Court

One of the core jurisdictions of the Austrian Constitutional Court is the special  administrative jurisdiction (Sonderverwaltungsgerichtsbarkeit; Art. 144 40

41 42

The amended version of Art. 129 fca will come into force on 1 January 2014. Special Administrative Courts will be established instead of the independent administrative tribunals and the Asylum Court. Cf. Jestaedt, Die Gesetzesbeschwere an den Verfassungsgerichtshof – Verfassungspolitische Anmerkungen, JRP 2013, 110 [112]. Kodek, ÖJZ 2008, 216 (221).

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fca). Moreover, the Constitutional Court reviews complaints against rulings made by administrative authorities after exhaustion of all remedies or complaints against decisions rendered by the Asylum Court (Asylgerichtshof; Art. 144a).43 In both cases, the Constitutional Court decides whether the constitutionally guaranteed rights of the affected person have been infringed or whether the application of the law itself has been unconstitutional. This leads to parallel competences of the Constitutional and the Administrative Court. Such a parallel jurisdiction of two of the highest courts in Austria may lead to problems. The Austrian Federal Constitution tries to mitigate this issue by introducing Art. 144 para. 3: Under certain circumstances44 the Constitutional Court shall – on the request of the applicant – transfer the complaint to the Administrative Court for decision whether the applicant sustained by the ruling of the administrative authority the infringement of any other right.45 The situation of parallel competences of the Constitutional and the Administrative Court were criticized in the past. The sole competence of the Administrative Court to review rulings of administrative authorities may be preferable;46 a concept which can be found in civil and criminal matters. XIII

The Relationship between the Constitutional and the Supreme Court

Decisions of state courts are generally not deemed to be a threat to the constitutionally guaranteed rights of individuals.47 One of the main reasons for this view is of course the independence of the judges.

43 44

45 46 47

From 01.01.2014 onwards the work of the Asylum Court will be taken over by the Federal Administrative Court (Bundesverwaltungsgericht). If the Constitutional Court finds that a right within the meaning of para. 1 above has not been infringed by the challenged ruling and if the case at hand is not in accordance with Art. 133 barred from the competence of the Administrative Court, the Court shall on the request of the applicant transfer the complaint to the Administrative Court for decision whether the applicant sustained by the ruling of the administrative authority the infringement of any other right. Walter/Mayer/Kucsko-Stadlmayer, Bundesverfassungsrecht10 (2007) mnr 1221. Walter, RZ 1999, 62; cf. Jestaedt, Die Gesetzesbeschwere an den Verfassungsgerichtshof – Verfassungspolitische Anmerkungen, JRP 2013, 110 (116). Walter, RZ 1999, 62; Kodek, ÖJZ 2008, 216 (221).

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Courts are not entitled to examine the validity of duly published ordinances, proclamations on the republication of a law or a state treaty, laws and state treaties in general (Art. 89 fca). This Article reflects the idea that state courts shall only apply the law, without examining it in detail, i.e., whether any provision is in violation of the constitutional law. They are only allowed to check its proper announcement.48 When the question of a certain provision’s contradiction with constitutional law arises, only the Austrian Constitutional Court has the power to pronounce – on being seized by the Supreme Court or by a competent appellate court49 – whether a Federal or Province law is unconstitutional in the sense of Art. 140 fca. The Austrian Supreme Court and competent appellate courts are obliged to file an application with the Constitutional Court for rescission of a law in case the judges are of the opinion that the law is in violation of the constitution. However, there are also cases where the courts refrain from applying to the Constitutional Court and instead try to interpret the legal provisions in a way that is in accordance with constitutional law.50 At the moment, only the Austrian Supreme Court and a competent appellate court are entitled to file an application with the Constitutional Court for rescission of this law (Art. 89 para. 2 fca). From 01.01.2015 onwards, also courts of first instance will be allowed to do this.51 The existing system of review of norms does not provide for the possibility of an applicant in a court proceeding to make sure that the Constitutional Court will examine whether any legal provision applicable in the court procedure is in violation of the constitution (“Gesetzesbeschwerde”). In Germany for example, the German Federal Constitutional Court (Bundesverfassungsgericht) is able to examine whether a judgment given by an ordinary court does violate any constitutional rights.52 The first draft for the “Gesetzesbeschwerde” provided for the possibility of an application to the Constitutional Court after a decision of a court of final instance was rendered if the applicant claims that he has been infringed 48

Öhlinger/Eberhard, Verfassungsrecht9 (2012) mnr 626; Fasching in Fasching/Konecny (eds), Kommentar zu den Zivilprozeßgesetzen I2 (2000) Einleitung mnr 19. 49 For the amendment of the constitution in this regard see below. 50 Critical Jestaedt, Die Gesetzesbeschwere an den Verfassungsgerichtshof – Verfassungspolitische Anmerkungen, JRP 2013, 110 (115 et seq). 51 Federal Gazette I 2013/114. Cf. the suggestion made by Rohrer/Kuras (Gesetzesbeschwerde gegen Entscheidungen der ordentlichen Gerichte? ÖJZ 2012/55). 52 93% of the proceedings before the German Federal Constitutional Court concern such complaints (Jestaedt, Die Gesetzesbeschwere an den Verfassungsgerichtshof – Verfassungspolitische Anmerkungen, JRP 2013, 110 [112]).

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because the court applied a legal provision which is in breach of the constitution.53 Such a complaint could have led to an imbalance between the three highest courts in Austria. The Constitutional Court may be seized after a decision of the Supreme Court. Although the Constitutional Court would not be competent to examine the court’s decision but only the applicable legal provisions, the image of the Austrian Supreme Court as a final instance in civil and criminal matters would, evidently, shatter. Especially Supreme Court judges criticized this draft because it enables the parties to prolong proceedings without due cause.54 Moreover, the courts of last instance which are the Austrian Supreme Court and the competent appellate court are under the obligation to file an application with the Constitutional Court without any necessary amendment anyway. Due to the considerable amount of criticism this first draft has been dropped. The new draft which will enter into force on the 01.01.2015 gives parties to a court procedure the possibility to combine the appeal against a decision of a court of first instance with an application to the Constitutional Court.55 That means that a decision given by the Supreme Court is not subject to review by way of an application to the Constitutional Court. Hence, the menace of an unnecessary prolongation of court proceedings resulting from unjustified applications to the Constitutional Court is diminished. XIV

Jurisprudence shall be based on Law

The first aspect of the principle of rule of law is the fact that the jurisprudence shall be based on law. It does not jeopardize the independence of state court judges, but is essential to the principle of separation of powers. As Montesquieu already pointed out: “Les juges de la nation ne sont […] que la bouche qui pronounce la parole de la loi.”56 State courts are not more than the mouth which pronounces the law. 53 54

55 56

Cf Initiativantrag 2031/A 24. GP. Rohrer/Kuras, Gesetzesbeschwerde gegen Entscheidungen der ordentlichen Gerichte? ÖJZ 2012/55. Cf. Jestaedt, Die Gesetzesbeschwere an den Verfassungsgerichtshof – Verfassungspolitische Anmerkungen, JRP 2013, 110 (115). Federal Gazette 2013/114. Cf. Raschauer, Subsidiarantrag auf Normenkontrolle wird im NR beschlossen, ZFR 2013/114; AnwBl 2013, 464. Montesquieu, De L’Esprit des Lois I (1764) 391. “The national judges are no more than the mouth that pronounces the word of the law.”

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457

Basic Principle

Art. 18 fca is the main provision in this regard. It stipulates that the entire public administration shall be based on law. Executive authorities are only entitled to act in accordance with the provisions explicitly laid down in the constitution, in constitutional and by simple laws, in regulations and in other legal acts. The wording of this Article only refers to the public administration. The Austrian constitutional law takes the applicability of this principle on state courts for granted.57 That is why the legislator did not consider it necessary to reiterate this well established principle in the Austrian fca.58 Any other result would jeopardize the use of codifications.59 Therefore, it is generally accepted that decisions by state courts shall also be based on law.60 This ensures the predictability of judgments and safeguards legal certainty.61 As already discussed, civil courts are not entitled to examine the validity of duly published law. It is up to the Constitutional Court to pronounce that a Federal or Province law is in violation of the constitution.62 XVI

Development of the Law by Judicial Decisions

The fca does not allow the development of the law by judicial decisions explicitly. The development of the law by judicial decisions is in contradiction with 57

58 59 60

61 62

Öhlinger, Legalitätsprinzip und Europäische Integration – Zur Gesetzesbindung des Verwaltungshandelns aus der Sicht des EU-Beitritts, in FS 75 Jahre Bundesverfassung (1995) 635 (636 et seq); Walter/Mayer/Kucsko-Stadlmayer, Bundesverfassungsrecht10 (2007) mnr 572; Mayer, B-VG4 (2007) 133; Adamovich/Funk/Holzinger/Frank, Österreichisches Staatsrecht II2 (2013) mnr 34.009. In Germany, this basic principle is explicitly stipulated in Art. 1 para. 3 and Art. 20 para. 3 German Constitutional Act (Grundgesetz). Hassemer, Gesetzesbindung und Methodenlehre, ZRP 2007, 213 (214). Austrian Constitutional Court 05.10.1989, G 70/89, Nr. 12.185; Ballon, Der Einfluß der Verfassung auf das Zivilprozeßrecht, ZZP 96 (1983) 409 (443); Öhlinger/Eberhard, Verfassungsrecht9 (2012) mnr 625; Ballon, Einige Probleme der richterlichen Rechtsfortbildung, JBl 1972, 598 (600); Rüffler, Analogie: Zulässige Rechts-anwendung oder unzulässige Rechtsfortbildung, JPR 2002, 60 (65 et seq); Griss, Die Rechtsprechung als Organ der Rechtsfortbildung im Zivilrecht, in FS 200 Jahre ABGB (2011) 1521. Mayer-Maly, Über die der Rechtswissenschaft und der richterlichen Rechtsfortbildung gezogenen Grenzen, JZ 1986, 557 (561). For further information see The Relationship between the Constitutional and the Supreme Court.

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the principle of separation of powers.63 Furthermore, judges are not elected by the people. They are appointed pursuant to the proposal of the Federal Government by the Federal President or, by reason of his authorization, by the competent Federal Minister (Art. 86 fca). Hence, judges are lacking a democratic legitimization like the Austrian National Council. Due to the independence of state court judges they cannot be held politically responsible for their decision. Last but not least, a court judgment is more likely to represent only individual views of the judges.64 Hence, the general principle is that judges are not supposed to develop new regulations. However, a state court judge may certainly be confronted with a situation that is not covered by a specific legal provision and its legal problem cannot be solved by mere interpretation.65 Unfortunately, the law is condemned to be fragmentary.66 In certain cases the legislator left specific legal questions intentionally unanswered.67 What else shall a judge do in such a situation rather than develop a new regulation himself? In this regard, the creation of law is permitted in order to compensate the legislator’s lack of a general provision.68 The judge is not allowed to stay proceedings indefinitely or deny rendering a decision just because the law does not provide for a specific provision applicable to the situation. This principle regarding the déni de justice obliges the judge to develop new law.69 The situation may be different in case a specific provision dealing with the situation exists but its application does not seem to be appropriate anymore due to changes in society. Sec. 7 Austrian Civil Code (cc) deals with this situation by allowing the consideration of general legal principles in cases of doubt. Generally speaking, the principle of private autonomy and its impact on the understanding of the rule of law principle permits a more liberal approach towards development of law by judges compared to administrative matters.70 63

64 65 66 67 68 69 70

Ballon, Einige Probleme der richterlichen Rechtsfortbildung, JBl 1972, 598 (600); Rüffler, Analogie: Zulässige Rechtsanwendung oder unzulässige Rechtsfortbildung, JPR 2002, 60 (66). Kramer, Juristische Methodenlehre3 (2010) 283. Kramer, Juristische Methodenlehre3 (2010) 227 et seqq. Kramer, Juristische Methodenlehre3 (2010) 177. Fasching in Fasching/Konecny (eds), Kommentar zu den Zivilprozeßgesetzen I2 (2000) Einleitung mnr 110. Fasching in Fasching/Konecny (eds), Kommentar zu den Zivilprozeßgesetzen I2 (2000) Einleitung mnr 110. Hirsch, Im Namen des Volkes: Gesetz – Recht – Gerechtigkeit, ZRP 2012, 205 (207). Adamovich/Funk/Holzinger/Frank, Österreichisches Staatsrecht II2 (2013) mnr 34.010.

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Sec. 502 Austrian Civil Procedure Code (cpc) states that the revision of a decision of an appellate court is permissible if the decision depends on the solution of a legal question having fundamental significance for inter alia the development of the law. The Austrian Supreme Court can thereby promote the development of law by introducing new and by modifying existing practices.71 However, Sec. 502 cpc does not only refer to the development of law but also to legal certainty. Hence, the Austrian Supreme Court shall be cautious when developing new law because every change of developed case law is contrary to the concept of legal certainty.72 It is generally understood that the fca took this differentiation between civil and administrative matters regarding the binding effect of laws for granted.73 This fact gives the state courts more power to find an appropriate  solution when deciding a civil case. However, the basic choice of the legislator and the fundamental principles of any law have to be respected at any time. Consequently, the Austrian state courts are not only allowed to develop new law within certain boundaries, they are obliged to do so because there is no other way to adequately reflect changes in the society in due time.74 However, any developments of new law by state courts must not move against the spirit and purpose of the law. Additionally, courts shall solve cases not due to their individual aspects but take a general rule as a basis so that the spirit and the purpose of the ruling can be seen as guidance for similar situations.75 Nonetheless, Sec. 12 cc restricts the impact of judgments.76 XVII

Examples in Austrian Civil Procedure Law

Examples for the development of law by judicial decisions can be found in various fields of law and various civil law jurisdictions. For example, the Swiss Federal Court (Bundesgericht) adopted such an approach regarding the 71 72 73 74 75 76

Zechner in Fasching/Konecny (eds), Kommentar zu den Zivilprozeßgesetzen IV/12 (2005) § 502 ZPO mnr 56. Griss, Die Rechtsprechung als Organ der Rechtsfortbildung im Zivilrecht, in FS 200 Jahre ABGB (2011) 1521 (1538). Adamovich/Funk/Holzinger/Frank, Österreichisches Staatsrecht II2 (2013) mnr 34.010. Hirsch, Im Namen des Volkes: Gesetz – Recht – Gerechtigkeit, ZRP 2012, 205 (208). Kramer, Juristische Methodenlehre3 (2010) 237. F. Bydlinski, Juristische Methodenlehre und Rechtsbegriff2 (1991) 501; F. Bydlinski, Hauptpositionen zum Richterrecht, JZ 1985, 149.

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examination of general conditions.77 The same applies to the German Federal Supreme Court (Bundesgerichtshof).78 In Austrian civil79 and civil procedure law, there are also several examples for the development of law by judicial decisions.80 In the following three important examples in the field of civil procedure law shall be described in more detail. The former Sec. 268 Austrian cpc stated that a civil judge is bound to a conviction of a criminal court. In 1990, the Austrian Constitutional Court rescinded Sec. 268 cpc because it violated the right to be heard according to Art. 6 echr.81 Only five years later the Austrian Supreme Court had to deal with the issue of the binding effect of a criminal verdict on following civil procedures, however, this time without any legal basis as the legislator did not revise the former provision. The Austrian Supreme Court in a panel of eleven judges (verstärkter Senat) decided to reintroduce the binding effect on the condition that the right to be heard is not violated.82 The reasoning of the decision was heavily criticized in the Austrian literature83 because the Austrian Supreme Court followed a theory on the res judicata effect of criminal judgments that contradicted the prevalent opinion. Now it is unlikely that the Austrian legislator will step in and enacts a law regarding this issue. Another example is the binding effect of a civil judgment on following proceedings against third persons that could have intervened in the previous proceeding.84 A third party can only intervene in a pending civil proceeding if he has a legal interest in the outcome of the proceedings. One of the parties to the proceeding can proclaim the existence of the legal dispute to a third party and ask the third party to participate in the proceedings provided that the party is 77 78

79

80 81 82 83

84

Kramer, Juristische Methodenlehre3 (2010) 229. See for example German Federal Constitutional Court, Unterhaltspflicht bei fehlgeschlagener Sterilisation oder fehlerhafter genetischer Beratung, NJW 1998, 519. For further situations German courts where confronted with see Hirsch, Im Namen des Volkes: Gesetz – Recht – Gerechtigkeit, ZRP 2012, 205 (207). See for example Gschnitzer, Schafft Gerichtsgebrauch Recht? in FS Hundertjahrfeier OGH (1950) 40 (44 et seqq); Griss, Die Rechtsprechung als Organ der Rechtsfortbildung im Zivilrecht, in FS 200 Jahre ABGB (2011) 1521 (1522 et seqq). Rechberger, Die Methode im Zivilprozess – ein Stiefkind? in FS Mayer 595 (600 et seqq). Austrian Constitutional Court 12.10.1990, G 73/89. Austrian Supreme Court 17.10.1995, 1 Ob 612/95. For detailed information see Rechberger, Der Wiedergänger – Zur Rückkehr der Bindung an strafgerichtliche Entscheidungen im österreichischen Zivilprozessrecht, FS Gaul (1997) 539. For detailed information see Rechberger, Der österreichische Oberste Gerichtshof als (Ersatz-)Gesetzgeber, in FS Schütze (1999) 711.

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allowed to intervene in the proceedings due to a legal interest. However, even if the third party may participate in the proceedings it is not obliged to do so.85 In Germany, Sec. 68 cpc clarifies the binding effect of a civil judgment on following proceedings against third persons that could have intervened in the previous proceeding. The Austrian cpc does not provide for a specific regulation on the effects of a judgment on the third person. Therefore, the Austrian Supreme Court had to decide in the end in a panel of eleven judges (verstärkter Senat).86 The Supreme Court followed the same approach as the German legislator and confirmed the binding effect regardless whether the third person which had to be aware of the legal dispute due to an announcement by one of the parties participated in the proceedings or not. The Austrian Supreme Court was heavily criticized especially regarding the reasoning of the decision.87 The Austrian Supreme Court deviated in specific situations from the general principle of burden of proof. Under three specific conditions a shift of the burden of proof was approved: First, the party who normally has the burden of proof has to be confronted with extraordinary difficulties to proof its case. Second, the necessary information rests in the sphere of the opponent. Third, it would not only be easy for the opponent to provide the information but consistent with the principle of good faith to provide the information.88 However, recently the Austrian Supreme Court refrained from applying this approach and stuck to the general principle of burden of proof as laid down in the law.89 XVIII Own Remarks Montesquieu’s concept of national judges does not seem to be accurate anymore. The development of law by judicial decision in the above mentioned cases goes so far that the Austrian Supreme Court can be considered as a (supplement) legislator.90 The contradiction to the principle of separation of powers is obvious. This is an example that the importance of the principle of separation of powers has decreased since the enactment of the Austrian fca. 85 86 87 88 89 90

Rechberger/Simotta, Zivilprozessrecht8 (2010) mnr 358. Austrian Supreme Court 08.04.1997, 1 Ob 2123/96d. Rechberger/Simotta, Zivilprozessrecht8 (2010) mnr 358. Legal Information System RS0040182 and RS0005394. Rechberger, Die Methode im Zivilprozess – ein Stiefkind? in FS Mayer (2011) 595 (609 et seq). Rechberger, Der österreichische Oberste Gerichtshof als (Ersatz-)Gesetzgeber, in FS Schütze (1999) 711.

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Although there are legal provisions, like Sec. 7 cc and Sec. 502 cpc, indicating that the development of the law by judicial decisions is permitted, this does not answer the question whether such practices are in violation of constitutional law. Two further aspects are worth considering in this regard. When discussing the development of law by judicial decisions only decisions of the Austrian Supreme Court are dealt with. As a matter of course, decisions of a district court (Bezirksgericht) or a court of first instance (Landesgericht) are in most cases not considered to have a high persuasive authority in legal questions. Hence, specific effects of Austrian Supreme Court decisions shall be considered as well. As already pointed out, decisions of the Austrian Supreme Court are final and binding and cannot be reviewed by the Austrian Constitutional Court.91 To a certain extent, this means that the Austrian Supreme Court was given free rein. Moreover, the Supreme Court can only deviate from persistent case law or decisions by way of establishing a panel of eleven judges (verstärkter Senat; Sec. 8 Supreme Court Act).92 This provision assures legal security.93 Having in mind the three above mentioned examples it is curious to see that any legal development of law by panels of only five judges do not grant that amount of legal certainty as the Supreme Court does not refrain from changing his mind every now and then. There are two different situations where the Austrian Supreme Court may have the obligation to act as legislator. These are the two situations described earlier: on the one hand situations that are not covered by any specific legal provision and on the other hand situations where there is a legal provision but this provision does not seem to be appropriate anymore due to changes in society. Development of law by judges is therefore not a question of permissiveness but a necessary duty of state courts, especially the Austrian Supreme Court.94 Considering the first two of the above mentioned examples the Austrian Supreme Court shall not be blamed. The Austrian cpc does not contain a detailed provision on the res judicata effect of civil decisions and especially not 91 92

93 94

For the relationship between the Constitutional and the Supreme Court see above. Cf. criticism by Ballon, Der Einfluß der Verfassung auf das Zivilprozeßrecht, ZZP 96 (1983) 409 (444 et seq); F. Bydlinski, Juristische Methodenlehre und Rechtsbegriff2 (1991) 514 et seq. Griss, Die Rechtsprechung als Organ der Rechtsfortbildung im Zivilrecht, in FS 200 Jahre ABGB (2011) 1521 (1522). Griss, Die Rechtsprechung als Organ der Rechtsfortbildung im Zivilrecht, in FS 200 Jahre ABGB (2011) 1521 (1537).

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on the boundaries of such an effect. Sec. 411 cpc gives only a limited guidance. Hence, legal practice and jurisprudence had to develop theories to cope with the lack of specific provisions. The default of the Austrian legislator meant that the Austrian Supreme Court had to step in. Regarding the third example the Austrian law contains a basic distribution of the burden of proof. The question therefore arises whether due to changes in society the general principle does not seem to be appropriate anymore. However, such changes have not occurred yet. The courts shall therefore stick to the general concept of burden of proof and shall not introduce an exceptional rule. Although the development of law by judges is permissible, the main duty still rests with the Austrian National Council.95 The Austrian Supreme Court once stated that any change of a law which is perceived to be dissatisfying is up to the legislator as the courts only have to apply the law.96 Nonetheless, the Austrian Supreme Court can be seen as a (supplement) legislator without violating Austrian constitutional law because it was the real legislator, the National Council, who omitted to enact clear legal provisions on res judicata. Hirsch once compared the relationship between the judges and the legislator to the relationship of a pianist and the composer.97 The judge interprets the guidelines without distorting the piece and sometimes the judge has to improvise. Consequently, within certain limits provided by the general concept of the rule of law, the development of law by judicial decisions is acceptable, although it should be, certainly, up to the legislator and not to the courts, to enact the necessary laws. However, considering the legal requirements and the general

95 Cf. Gschnitzer, Schafft Gerichtsgebrauch Recht? in FS Hundertjahrfeier OGH (1950) 40 (52). 96 For example Austrian Supreme Court 06.06.1978 4 Ob 16/78 = SZ 51/75 = ArbSlg 9.703; Legal Information System RS0008880: “Unbefriedigende Gesetzesbestimmungen zu ändern, ist nicht Sache der Rechtsprechung, sondern der Gesetzgebung; die Gerichte haben nur die bestehenden Gesetze anzuwenden; es ist hingegen keineswegs ihre Aufgabe, im Wege der Rechtsfortbildung oder einer allzu weitherzigen Interpretation möglicher Intentionen des Gesetzgebers Gedanken in eine Gesetz zu tragen, die darin nicht enthalten sind. Als maßgebend kann vielmehr nur der objektive Sinn eines gehörig kundgemachten Gesetzeswortlautes angesehen werden. Ein Rechtssatz, der im Gesetz nicht einmal angedeutet ist, kann auch nicht im Wege der Auslegung Geltung erlangen.” 97 Hirsch, Zwischenruf – der Richter wird’s schon richten, ZRP 2006, 161; critically Rüthers, Gesetzesbindung oder freie Methodenwahl? – Hypothesen zu einer Diskussion, ZRP 2008, 48 (49).

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practice, the rule of law in Austria is not at stake. The jurisdiction in Austria is, as outlined above, based on the law. XIX Conclusion Decisions of the three highest courts are final and binding and are not subject to review by any other Austrian court.98 To a certain extent, this gives those courts free rein. However, they are nonetheless bound by law (Art. 18 fca). The binding effect of laws does not by itself violate the independence of state court judges.99 98 99

Cf. Jestaedt, Die Gesetzesbeschwere an den Verfassungsgerichtshof – Verfassungspolitische Anmerkungen, JRP 2013, 110 [112]. F. Bydlinski, Hauptpositionen zum Richterrecht, JZ 1985, 149 (152).

Chapter THIRTY-TWO

Analysis of the Amendments to the Mt. Scopus International Standards of Judicial Independence Shimon Shetreet* I Introduction In this chapter we shall offer an analysis of the amendments to the Mt. Scopus Standards of Judicial independence of 2008 that were adopted at the Vienna 2011 and Ghent 2012 conferences. These amendments dealt with a number of central issues that warranted the study and deliberation of the International Project of Judicial Independence. These issues include: the relationship between top national, international, and supranational courts; the duty of the international and supranational courts to respect basic legal principles as reflected by the Supreme Courts of member states; the significance of administrative adjudicators; limits on judges’ consultations; the significance of an expressly provided procedure for selecting a Chief Justice; the significance of building a culture of judicial independence; and guidelines regarding public inquiries by judges. The chapter also outlines the agenda for future discussions at the project’s next conferences. The focus will be upon the legal profession and judicial independence, global judicial ethics codes, and online justice or Online Dispute Resolution (“ODR”). The chapter begins by offering a brief report on the development of the Project of Judicial Independence of the association of judicial Independence and World Peace (“JIWP” Association) and the drafting of significant international standards that members of the jiwp Association have both contributed to and initiated. These include the New Delhi Code of Minimum Standards of Judicial Independence 1982, the Montreal Universal Declaration on the Independence of the Justice System 1983, research projects and reports on * Shimon Shetreet, LLB, LLM, Hebrew University, MCL, DCL, University of Chicago, holds the Greenblatt Chair of Public and International Law at the Hebrew University of Jerusalem, and is past chairman of the Sacher Institute of Legislative Research and Comparative Law. Author and editor of many books and articles. President International Association of Judicial Independence and World Peace.

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_033

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judicial independence from 1984 to 2005, and the Mt. Scopus Standards of Judicial Independence 2008. II

Development of the Project of International Standards of Judicial Independence

Between 1980 and 1982, members of the International Project of Judicial Independence and jiwp Association participated in the drafting of the New Delhi Code of Minimum Standards of Judicial Independence in cooperation with the International Bar Association. The code was drafted in Lisbon and Jerusalem, with final approval obtained in New Delhi in 1982.1 A year later, in 1983, members of the project took part in Montréal’s Conference on the Independence of Justice, and therein drafted the Universal Declaration of the Independence of Justice 1983.2 Two years later, in 1985, the then collective works of the International Project of Judicial Independence were published by Shimon Shetreet and Jules Deschenes in Judicial Independence: The Contemporary Debate (Martinus Nijhoff: 1985). Members of the association were active in the research and study of human rights and presented country reports and general reports on topics ranging from human rights, the rule of law, world peace, and judicial independence at international professional and academic conferences. By these studies and reports, the members of the association made a substantial impact on academic, professional, and judicial approaches to the subjects, as well as, influencing the awareness of the general communities. In 1986, the members of the association took part in the Twelfth Congress of Comparative Law in Sydney and Melbourne, Australia (1986), and presented a General Report on Human Rights. Members of the association took active part in the preparation of a major report on Judicial Independence for the Seventh International Congress of Procedural Law 1983 in Wurzburg and again in 1991 in Lisbon and Coimbra. Members of the association contributed to the study of the role of judges in society at a conference on the Fiftieth Anniversary of the International Association of Procedural Law in 2000 at the University of Ghent which focused on ‘The Discretionary Power of the Judge’.3

1 See http://www.jiwp.org/-!new-delhi-declaration/c134r. see Appendix II Part IX of this Volume. 2 http://www.jiwp.org/-!montreal-declaration/c1bue. 3 See details below text and notes 10–12.

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The International Project of Judicial Independence initiated the Mt. Scopus conference series for the drafting and amending of the Mt. Scopus International Standards of Judicial Independence.4 The Mt. Scopus Standards of the jiwp Association are cosponsored by the Hebrew University Faculty of Law and the University of Cambridge Public Law Centre. The conferences have been organized in cooperation with many universities and are a testament to the widespread academic and professional cooperation at an international scale. In these conferences distinguished jurists, members of the jiwp Association, adopted and amended the Mt. Scopus Standards and presented their research on judicial independence. Over the years, and after the adoption of a certain concept, the need for further adjustment was recognised. For example, the concept of “a 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.”5 Also there was no need to enter exceptions for the United Kingdom or to incorporate the phrase “except in long and established democratic traditions” as was used in the New Delhi Code. This is because the United Kingdom adopted the Human Rights Act 1998 and the Constitutional Reform Act of 2005 making the matter moot.6 In other conferences issues were reviewed and addressed as necessary over the course of many years. A

New Delhi Code of Minimum Standards of Judicial Independence 1982

Between 1980 and 1982, the members of the International Project of Judicial Independence participated in the drafting of the New Delhi Code of Minimum 4 See Appendix I, Part IX, this Volume. 5 See Article 2.15 of the Mt. Scopus Standards: “The process and standards of judicial selection shall give due consideration to the principle of fair reflection by the judiciary of the society in all its aspects.” See also The Montreal Declaration, Article 2.13. 6 For an example of this exception in the New Delhi Code of Minimum Standards of Judicial Independence see Article 3(b): “Appointments and promotions by a non-judicial body will not be considered inconsistent with judicial independence in countries where, by long historic and democratic tradition, judicial appointments and promotion operate satisfactorily” Appendix II, Part IX, this volume. For analysis of the Constitutional Reform Act of 2005 see Shetreet, Creating a Culture of Judicial Independence: The practical Challenge and the Conceptual and Constitutional Infrastructure, in S. Shetreet and C. Forsyth (eds.), The Culture of Judicial Independence: Conceptual Foundations And Practical Challenges 17, at 51 ff., (Martinus Nijhoff – Brill Publishers, 2012).

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Standards of Judicial Independence, in cooperation with of the International Bar Association. The Code was initiated in Berlin 1980, drafted in both Lisbon (in 1981) and in Jerusalem (in 1982), with final approval obtained in October 1982 in New Delhi. Judicial independence has been highlighted as an issue by numerous incidents of violation across many parts of the world. These violations of judicial independence took many forms and occurred in countries with very different systems of government. A number of reasons called for the review of conceptions, traditions, and principles bearing on judicial independence, such as the apparent diversity and conflicts between various countries in the practice of law, concerning judges and judicial independence especially and the development of in political and social conditions in modern society generally. Moreover, the very concept of what constituted the nature of judicial office, the role of an individual judge, and the judicial branch overall had undergone serious changes. The time was ripe for a crystallization of these evolving concepts in a set of internationally applicable minimum standards. Thus, in August 1980, leaders of the project began developing a comprehensive code in conjunction with the International Bar Association. After two years of intensive work, the end product weaved the collective knowledge of the General Report, 29 national reports, and 15 topical reports. The national reports followed the guidelines laid down by the General Rapporteur, detailing the specific questions that the National Rapporteurs were requested to address. It was also in 1980, at the 18th Biennial Convention in Berlin, that at the initiative of the members of the project that the International Bar Association embarked upon a separate project for the development of an international comprehensive code of minimum standards of judicial independence. The project was the responsibility of the Committee on Administration of Justice in the Section of General Practice. Justice D.K. Haese of Australia, the Chairman of the Committee, acted as project coordinator and Professor Shimon Shetreet served as General Rapporteur of the Project. Justice Haese succeeded Chief Justice L. King, also of Australia, in the office of Project Coordinator, in the beginning of 1982. National rapporteurs and topical Rapporteurs of the highest academic and professional standing from over 30 countries took part in the Project. The participating countries were geographically representative of the world and fairly represented the major legal families of judicial systems, as well as, the major systems of government.7 7 The one exception being that the communist-bloc countries abstained from involvement in the project.

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After the initiation of the project in August 1980 substantial work had already been completed. 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 subsequently debated and revised. Based on the resolutions of the Lisbon Conference and other suggestions made in the course of the proceedings, the General Rapporteur prepared the a revised draft, and again submitted the document for debate and approval, this time at the Jerusalem Planning Conference of March 1982. The standards approved in Jerusalem, the fruits of the Jerusalem Conference, were submitted for final approval to the nineteenth iba Biennial Convention in New Delhi in October 1982, and approved with only slight changes. The work of the National Rapporteurs and the Project Officers were gratefully acknowledged and their contribution is deeply appreciated still.8 Special recognition is warranted for the leadership of Chief Justice King and Justice Haese, the project coordinators, for their invaluable and indispensable work. Thanks are also due to the iba Head Office in London for their help throughout the project. Over the course of the project the leading officers of the project have been in touch with other organisations involved in similar efforts such as the International Commission of Jurists in Geneva, whose representatives attended our 1981 Lisbon conference, our March 1982 Jerusalem conference, and finally our October 1982 New Delhi conference. B

Montreal Universal Declaration on the Independence of Justice Adopted in the Montreal Conference 1983

In 1983, a year after the New Delhi Code was adopted, members of the project took part in Montréal’s Conference on the Independence of Justice, and in the drafting of the Universal Declaration of the Independence of Justice 1983. 8 Officers and Rapporteurs of The New Delhi Code of Minimum Standards of Judicial Independence: (General Coordinators) Justice David K. Haese, Chief Justice Leonard King, (General Rapporteur) Shimon Shetreet, (National Reporters) Michael D Kirby of Australia, Hans W. Fasching of Austria, M.A. Mutaleb of Bangladesh, Marcel Storme of Belgium, Celso Agricola Barbi of Brazil, Irma Lager of Finland, F. Grivartde Kerstrat of France, Enoch D. Kom of Ghana, Peter Schlosser and Walther Habseheld of the Federal Republic of Germany, Peter Gilles and Manfred Wolf of Germany, K.D. Kerameus of Greece, D.B. Casson and I.R. Scott of Great Britain, Anand Prakash of India, Shimon Shetreet of Israel, Alessandro Pizzorusso of Italy, Yasuhei Taniguchi and Nobuo Kumamuto of Japan, J.M. Ganado of Malta, B.J. Van Heyst of the Netherlands, Niki Tobi of Nigeria, Haakon I Flaraidsen of Norway, Alexandra M. Pessoa Vaz of Portugal, G.D. Andrew of South Africa, A. Trani Pelayo of Spain, Andrea Audersson of Sweden, Joseph. M.N. Kakooza of Uganda, Robert B. McKay and James M. Parkison of the United States of America.

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The World Conference on the Independence of Justice was held in June 1983 at the Queen Elizabeth Hotel under the leadership of then Chief Justice of Quebec Jules Deschenes. Chief Justice Deschenes, succeeded in the difficult task of gathering under one roof approximately 130 distinguished jurists representing some 20 international organisations in order to approve a Universal Declaration on the Independence of Justice. Long before the conference in Montreal however, a steering committee developed a draft of the Declaration that was later put before the participants of the Conference. The debates in Montreal were conducted via five commissions, which discussed each of the five chapters of the declaration: The International Judges (led by Judge Oxner and Batonnier Pettiti); The National Judges (led by Justice Gonthier and Shimon Shetreet); The Lawyers (led by Bttonier Louis Phillippe de Grandpr, and Debo Akande); The Jury (led by Chief Justice William Sinclair and Mr James Parkison; and The Assessors (led by Judge Guerin and Judge Poirier). The chapters of the declaration were then approved by a plenary session of the Conference. Among the organisations represented in Montreal were the International Bar Association, International Commission of Jurists, International Court of Justice at the Hague, LAWASIA, the European Court of Human Rights, Amnesty International, and numerous international lawyers’ organizations.9 C

Publications on Judicial Independence

Two years after the Montreal Declaration, in 1985, the works of the International Project of Judicial Independence were published in “Judicial Independence: the Contemporary Debate” (Martinus Nijhoff: 1985), edited by Shimon Shetreet 9 Chairman of the Conference: Chief Justice Jules Deschens, Chief Justice of Quebec.​ Commission of International Judges: (Chairs) Judge Oxner and Batonnier Pettiti. ​Commission of National Judges: (Chairs) Justice Gonthier and Professor Shimon Shetreet, ​Commission of Lawyers: (Chairs) Battonier Louis Phillippe de Grandpre and Debo Akande, ​Commission of the Jury: (Chairs) Chief Justice William Sinclair and Mr James Parkison. ​Commission of the Assessors: (Chairs) Judge Guerin and Judge Poirier. Other Rapporteurs: ​Debo Akande, MarcAndrg 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, S​imone Rozes, Professor Shimon Shetreet, Manfred Simon, William Sinclair, L​ .M. Singhvi, and Sir Ninian Stephen.

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and Jules Deschenes as consulting editor. Members of the Association were active in the research and study of human rights and presented both country reports and general reports on human rights, the rule of law, world peace, and judicial independence at international professional and academic conferences. By these studies and reports, members of the Association effected substantial impact on the thinking of academic, professional, and judicial circles, as well as on the general communities in which they published. In 1986, the members of the Association took part in the 12th Congress of Comparative Law in Sydney at Melbourne (1986), and presented a General Report on Human Rights.10 Members of the association took active part in the preparation of a major report on judicial independence for the 7th International Congress of Procedural Law 1983 in Wurzburg and repeated the process in 1991.11 Members of the association contributed to the study of the role of judges in society at a conference on the 50th Anniversary of the International Association of Procedural Law in 2000 at the University of Ghent, focusing on ‘The Discretionary Power of the Judge’.12 10

11

12

Shetreet, “Limits and Promises of International Norms and Procedures for the Protection of Human Rights.” in S. Goldstein (ed.), The Israeli Reports To The 12th Congress Of Comparative Law (The General Report to the 12th Congress of Comparative Law in Sydney – Melbourne) pp. 1–103, (1986). See Shetreet and Picardi, “Independence and Responsibility of Judges and Lawyers: General Report to the 1991 International Congress of the World Association on Procedural Law in Role and Organization of Judges and Lawyers in Contemporary Societies,” Papers of the Ninth World Conference on Procedural Law, Coimbra/Lisboa, Portugal, 1991). See See Shetreet, The Discretionary Power of the Judge’ in Marcel Storme and Burckhardt Hess (eds.), Discretionary Power of the Judge: Limits and Controls (Procedure, Gent 2000; Kluwer 2003), pp. 73–116. For publications see www.jiwp.0rg see For illustrations see publications of the members of the jiwp Association at www.jiwp.0rg and see Shetreet, Limits and Promises of International Norms and Procedures for the Protection of Human Rights, in S. Goldstein (ed.), The Israeli Reports To The 12th Congress Of Comparative Law (The General Report to the 12th Congress of Comparative Law in Sydney – Melbourne) pp. 1–103, (1986), Shetreet, The Challenge of Expeditious Justice: Maintaining Justice in the Pursuit of Efficiency, International Legal Practitioner (Journal of the International Bar Association) 44–48, (June 1988). Shetreet, “Independence and Responsibility of Judges and Lawyers: General Report to the 1991 International Congress of the World Association on Procedural Law in Role and Organization of Judges and Lawyers in Contemporary Societies,” Papers Of The Ixth World Conference On Procedural Law 119–186, (Coimbra – Lisboan, Portugal, 1991; Shetreet, The Discretionary Power of the Judge, in M. Storme and B. Hess (eds.), Discretionary Power Of The Judge: Limits And Control 73–116, (ProcedureGent 2000; Kluwer 2003) (On the occasion of the 500th Anniversary of the University of Gent and 50th Anniversary of the International Association of Procedural Law); Shetreet,

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Members of the association have also been active in the Culture of Peace Project and in the Religions for Peace Organisation International (rpo International) and have organized numerous conferences all around the world, including in Trento, Gaflei, Rhodes, Aqaba, Amman, and Casablanca. The association believes that justice and peace go hand in hand and mutually reinforce each other. The Culture of Peace’s vision calls for strengthening peace by basing it on four foundational manifestations: security or political peace, economic peace, cultural or fundamental values peace, and religious peace.13 D

Mt. Scopus Standards of Judicial Independence 2008

The International Association of Judicial Independence and World Peace has continued its efforts to promote judicial independence by initiating a revision of the Standards of Judicial Independence within the framework of the International Project on Judicial Independence. Accordingly, since their adoption in 2008 at Mt. Scopus Jerusalem they have been named Mt. Scopus International Standards of Judicial Independence. The project has since been moulded by various 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. Professor Shimon Shetreet, Greenblatt Professor of Public and International Law at Hebrew University of Jerusalem and former Director of the Sacher Institute of Comparative Law, serves as the General Coordinator. Thus far ten Conferences have been held at the following Universities: Hebrew University of Jerusalem (March 2007),14 Vaduz (December 2007),15 Hebrew University (March 2008),16 Jagiellonian University (November 2008),17

Judicial Discretion in Israel in M. Storme and B. Hess (eds.), Discretionary Power Of The Judge: Limits And Control 485–520, (Procedure Gent 2000;Kluwer 2003) (On the occasion of the 500th Anniversary of the University of Gent and 50th Anniversary of the International Association of Procedural Law); Shetreet, Judicial Independence and Judicial Review of Government Action: Necessary Institutional Characteristics and Appropriate Scope of Judicial Review, in C. Forsyth, M. Elliott, S. Jhaveri, A. Scully-Hill, and M. Ramsden (eds.), Effective Judicial Review: A Cornerstone Of Good Governance 187–207, (2010). 13 See Shetreet, “Peace Today: Reflections on Four Foundations of Culture of Peace” in Prince Nikolaus Von und Zu Liechtenstein and Cheikh Gueye (eds.), Peace and Intercultural Dialogue, Universitaetverlag, Heidelberg and International Academy of Philosophy: 2005, pp. 195–205. 14 http://www.jiwp.org/-!ji-jerusalem-conference-2007/c1v6k. 15 http://www.jiwp.org/-!ji-vadouz-conference-2007/c1ww7. 16 http://www.jiwp.org/-!ji-conference-jerusalem-2008/cl5c. 17 http://www.jiwp.org/-!ji-conference-krakow-2008/c21e8.

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Cambridge University (August 2009),18 University of Utah (October 2010),19 University of Vienna (May 2011),20 City University of Hong Kong,21 University of Ghent (October 201222), and at the University of San Diego (August 2013).23 The next international conferences on judicial independence will be held in Moscow in May 2014 and in Osnabrück, Germany in October 2014. The Mt. Scopus conferences were all co-chaired by Professor Shimon Shetreet and by chairpersons from the respective host university: Professor Maimon Schwarzschild (University of San Diego), Professor Marcel Storme (University of Ghent, Belgium), Professor Anton Cooray (City University of Hong Kong), Professor Walter Rechberger (University of Vienna), Dean Hiram Chodosh and Professor Wayne McCormack (University of Utah), Professor Christopher F. Forsyth (University of Cambridge), Professor Fryderyk Zoll (Jagelonian University, Krakow). Furthermore, the Vaduz Conference for the Drafting of the International Standards of Judicial Independence was co-chaired by Professor Christopher F. Forsyth, Professor Marcel Storme, and the late H.E. Markus Buechel (who also chaired the Local Organising Committee). Professor James R. Crawford of the University of Cambridge co-chaired the conference in 2007 (at the Hebrew University of Jerusalem). The Mt. Scopus Standards were developed with significant help from the members of the consultation group of the International Project of Judicial Independence.24 E

The Second Volume on Judicial Independence Published in 2012 (Third Volume Expected 2014)

The Second volume on judicial independence was published in 2012 by Martinus Nijhoff and, in 2014, the 3rd volume will be published by the same publishers. This Third volume will be also be a part of the three volume work on judicial independence published by the International Project of Judicial Independence. This 3rd volume is titled Culture of Judicial Independence: Rule of Law and World Peace edited by Shimon Shetreet (2014). The two previous volumes, were Judicial Independence: The Contemporary Debate (1985), edited by Professor Shimon Shetreet and Chief Justice Deschenes, and The Culture of 18 http://www.jiwp.org/-!ji-conference-cambridge-2009/c1umr. 19 http://www.jiwp.org/-!ji-conference-utah-2010/cnn0. 20 http://www.jiwp.org/-!ji-conference-vienna-2011/c1uyy). 21 In March 2012,http://www.jiwp.org/-!ji-conference-hong-kong-2012/cgve). 22 http://www.jiwp.org/-!ji-conference-ghent--2012/c1x5g. 23 http://www.jiwp.org/-!ji-conference-san-diego--2013/c1nww. 24 See the list of the Consultation Group at Appendix I, Part IX of this volume.

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Judicial Independence: Conceptual Foundations and Practical Challenges edited by Shimon Shetreet and Christopher Forsyth (2012). III

Amendments to the Mt. Scopus International Standards of Judicial Independence

A

The Relations between the Top National Courts and International Tribunals and Supranational Courts

The issue of the relations between national top courts, international, and supranational courts has been at the centre of controversy for a long time. It has been specifically debated and discussed in public discourse.25 But it has also been reflected in decisions from the top national courts, as in the decisions regarding the European Arrest Warrant26 in Germany, Poland, and the Czech Republic,27 and in the decisions regarding control orders in the United 25

26

27

See the reports on the public speeches of Lord Kerr of the U.K. Supreme Court, Lord Kerr, the Relationship between echr and Domestic Courts, available at http://humanrights.ie/ constitution-of-ireland/lord-kerr-on-the-relationship-between-ecthr-and-domestic -courts/, calling for a dialogue to avoid conflict. See the statement of Lord Judge, the lcj of England and Wales, before the U.K. House of Lords Constitution Committee, http:// jurist.org/paperchase/2011/10/uk-top-judge-national-courts-not-bound-by-europe -rights-court.php, that U.K. Courts are not bound by the decisions of the ECtHR but should only consider echr decisions when deciding cases. But see the statement of Lord Philips, the President of the UK Supreme Court that the ECtHR decisions will always control U.K. Courts as long as the Human Rights Act 1998 remains in effect. Id. 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. For the European Arrest Warrant Decisions see cases in Germany, Poland, and Czech Republic. The German Federal Constitutional Court declared unconstitutional the laws implementing the European Arrest Warrant. C. Tomuschat, Inconsistencies. The German Federal Constitutional Court on the European Arrest Warrant, European Constitutional Law Review, 2006, 209; S. Molders, Case note, The European Arrest Warrant in the German Federal Constitutional Court, German Law Journal, 2006, 45; N. Nohlen, Germany: The European Arrest Warrant case, International Journal of Constitutional Law, Volume 6, 2008, 153. The Polish Constitutional Tribunal also declared unconstitutional the Polish ewa legislation. Polish Constitutional Tribunal, European Arrest Warrant, 27 April 2005, No. 1/05. see Oreste Pollicino, The New Relationship between National and the European Courts after the Enlargement of Europe: Towards a Unitary Theory of Jurisprudential

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Kingdom.28 Debate over how to best resolve this issue remains and there is a vast difference of opinion on the extent to which national courts and national organs of member states must obey international and supranational courts in matters that touch basic principles underlying legal systems of member states.29 The debate was conducted both from the point of view of national legal systems, as well as, from the other direction of the viewpoint of the judicial policy of the international tribunal such as the ECtHR. Lord Hoffman of the

28

29

Supranational Law? 29 Yearbook of European Law (2010) at 65, at p. 81. The Czech Constitutional Court declared constitutional the Czech legislation to implement the eaw. Policinno, id, at p. 82. For other cases see the decisions of the Hungarian Constitutional Court invalidat a certain statute in preparation for the accession to the E.U. Policinno, id. at 70; and see Slovak Constitutional Court, Policinno, id. at 71. See the ECtHR case of A & Others v UK, and see the UK Supreme Court case Secretary of State for the Home Department v. AF & Others (2009). See particularly the opinion of Lord Hoffman: [T]he judgment of the European Court of Human Rights (“ECtHR”) in A v. United Kingdom (Application No 3455/05), BAILII: [2009] ECtHR 301, requires these appeals to be allowed. I do so with very considerable regret, because I think that the decision of the ECtHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that Section 2(1)(a) of the Human Rights Act 1998 requires us only to “take into account” decisions of the ECtHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so. For a detailed analysis see Y. Shany, The Competing Jurisdictions of International Courts and Tribunals, Oxford, 2003; Y. Shany, Regulating Jurisdictional Relations between National and International Courts, Oxford, 2007; M.L. Volcansek, J.F. Stack (eds), Courts Crossing Borders: Blurring the Lines of Sovereignty, Durham, N.C., 2005: J.H.H. Weiler, A.M. Slaughter, A. Stone Sweet (eds), The European Court and National Courts – Doctrine and Jurisprudence: Legal Change in Its Social Context, Oxford, 2004: Oreste Pollicino, The New Relationship between National and the European Courts after the Enlargement of Europe: Towards a Unitary Theory of Jurisprudential Supranational Law? 29 Yearbook of European Law (2010) at 65–111 W. Sadurski, Accession’s Democracy Dividend: The Impact of the EU Enlargement Upon Democracy in the New Member States of Central and Eastern Europe, in European Law Journal, 2004, p. 371: J.H.H. Weiler, The Community System: The Dual Character of Supranationalism, Yearbook of European Law, 1992, p. 267: H. Rasmussen, Present and Future Judicial Problems After Enlargements and the post-2004 Ideological Revolt, Common Market Law Review, 2007, p. 1661.

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United Kingdom Supreme Court has been critical of the ECtHR and expressed the view that its power to interfere in a detailed manner in domestic law should be pointedly limited.30 The debate takes place in the older member states of the European Union and the echr such as the United Kingdom, Belgium, and Germany. But it is also conducted in the newer member states that entered after the Enlargement of the EU following the fall of the Soviet Union. In many of these countries there has been resentment against requirements considered overly demanding and unduly interfering in national sovereignty.31 The issue has been a problematic one and reflects the potential conflict between pan-Europeanism’s need for supremacy of European Law and national sovereignty’s adherence to domestic law. The Amendment to the Mt. Scopus Standards of Judicial Independence prefers an approach that embodies dialogue and respect rather than confrontation and conflict. It is this doctrine of dialogue and respect that the Amendment adopted in Vienna represents. It provides: 1.3 It is vital that supranational and international Tribunals respect the fundamental principles of the legal systems of the Member States and to that end acknowledge the collegiality of the traditions of the courts of both the municipal and extra municipal courts. The formulation that was adopted by Article 1.3 of the Mt. Scopus International Standards of Judicial Independence, which is an amendment approved in Vienna in 2012, is based on the idea that the relations between the top national courts and the International and Supranational courts should be based on dialogue and respect, not on conflict and confrontation.

30

Lord Hoffmann, The Universality of Human Rights, Judicial Studies Board annual lecture, 2009; BBC News, “Judge attacks human rights court,” BBC News Online, (4 April 2009). For similar criticism see President of the Belgium Constitutional Tribunal, Marc Bossuyt, Stijn Smet, President of Belgian Constitutional Court Criticises European Court of Human Rights, 2010. It is relevant to note also the criticism of the ECtHR by judge Anatoly Kovler, of Russia on the ECtHR approach to non-European values in Refah v. Turkey (Applications nos. 41340/98, 41342/98, 41343/98 and 41344/98, and the comments of the President of the Russian Constitutional Court Valery Zorkin, regarding the case of Markin v. Russia Application no. 30078/06. But see the opposite view of Judge Martens supporting a more proactive ECtHR in Fisher v Austria (37950/97) [2001] echr 348 (29 May 2001). See Policinno, supra note 28, at 87. 31 Policinno, supra note 28, at p. 69.

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The introduction of Article 1.3 reflects the concept that we live in a world of constitutional pluralism, and there is no one true interpretation of the International Human Rights treaty such as the echr, or the Lisbon Treaty in human rights issues, or in interpretation of treaties or constitutions. Article 1.3 follows the same approach for both supranational courts like the ecj in Luxembourg, whose rulings are directly applicable and enforceable in the domestic legal systems of all member states, and the international courts like the ECtHR in Strasburg, whose rulings are not directly applicable and need the acceptance of member states to be implemented in the domestic legal system.32 Article 1.3 is based on the idea that there should be a duty of all courts and tribunals acting in the international level whether they are defined as an ‘international’ tribunal or as a ‘supranational’ tribunal. This approach of constitutional pluralism assumes that there could be more than one legitimate interpretation. Therefore a dialogue should be developed based on mutual respect. The legal approach of constitutional pluralism finds its expression in the parallel theories of political science33 which emphasizes the significance of state sovereignty and unique state characteristics that should be given recognition in international relations, legal relations, and political partnerships. B

Administrative Adjudicators

There has been a substantial increase in the adjudication performed by officials within the Executive branch. This is due to the ever-increasing role of the welfare state and the ever-increasing fields of administrative agencies with which it is entrusted. For the citizen, matters adjudicated by an administrative adjudicator are equally important as those adjudicated by the ordinary courts of law. In the United States, administrative adjudicators are called administrative law judges and there are 1600 at the federal level.34 In the United Kingdom, 32

33

34

See for the example the controversy over the rejection by the UK of the decision of the ECtHR to accord rights to vote to prisoners. http://jurist.org/paperchase/2011/10/uk-top -judge-national-courts-not-bound-by-europe-rights-court.php. M. Kumm, Who is the final arbiter of constitutionality in Europe? Three Conceptions of the Relationship between the German federal Constitutional Court and the European Court of Justice, Common Market Law Review, 1999, p. 351; A. Jakab, Neutralizing the Sovereignty Question, European Constitutional Law Review, 2006, p. 375. Kent Barnett, Resolving the alj (Administrative Law Judges) Quandary, 66 VANDERBILT LAW REVIEW 797 (2013), available at: http://digitalcommons.law.uga.edu/fac_artchop/ 893., Deborah A. Geier, The Tax Court, Article III, And The Proposal Advanced By The Federal Courts Study Committee: A Study In Applied Constitutional Theory, 76 Cornell L. Rev. 985 1990–1991; Kathleen C. Engel, Moving Up The Residential Hierarchy:

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they are called tribunal judiciary and they are now more closely associated with the ordinary judiciary. A Lord Justice of the Court of Appeal serves as President of the Tribunals.35 In recognition of the importance of administrative adjudicators the International Project of Judicial Independence decided to introduce Article 9A as an amendment to its Mt. Scopus Standards of Judicial Independence. The Amendment detailed measures that provide protection for the independence and impartiality of administrative adjudicators. The standards are based on the following basic principles. The administrative adjudicator may not mix his adjudicatory function with other non-adjudicatory functions of the agency in which he or she acts as an adjudicating officer. Thus an adjudicative officer cannot act at the same as a collection officer with judicial tasks.36 Another principle outlined by Article 9A covers removal from office, an administrative adjudicator must be removed only for cause and after a hearing. Other principles call for insuring impartiality and decisional independence while taking into consideration factors for efficiency and the effective operation of administrative authority. This amendment applies to administrative law judges and sets out the requirements expected of them. Article 9A provides that all standards applicable to national judges must also apply to administrative adjudicators. Administrative adjudicators may be appointed by executive authority for probationary periods if the permanent appointment is based on merit but the adjudicator shall not be assigned functions in related matters to those in which they perform adjudicatory functions. They may be removed only for good cause and only after a fair hearing. All decisions are subject to review by the agency administering the matter and subject to judicial review according to law. All decisions must be free from interference by the executive, and administrative adjudicators are subject to evaluation according to objective criteria. Mt. Scopus standards recognize that there is a need to enforce requirements for the independence, fairness, and impartiality of administrative adjudicatory procedures. The standards provide that administrative adjudicators must enjoy impartiality and decisional independence. These “Administrative Adjudicators” shall not exercise or be assigned non-adjudicatory functions in the same or in a related matter in which they perform an adjudicatory function (Section 9A.7 of the Mt. Scopus Standards of Judicial Independence 2008, as 35 36

A New Remedy For An Old Injury Arising From Housing Discrimination 77 WASHINGTON UNIVERSITY LAW QUARTERLY 1153 (1999). Shimon Shetreet and Sophie Turenne, Judges on Trial: Independence and Accountability of the English Judiciary, Chapter 1(2d Ed., Cambridge UP, 2013). Article 9A.7 of the Mt. Scopus Standards.

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amended in 2011), their appointment shall be based on merit (Section 9A.3 of Mt. Scopus Standards), they shall have secured compensation (Section 9A.5 of the Mt. Scopus Standards), and their removal may be effected only “for good cause” by specific statute and in a procedure of fair hearing (Section 9A.6 of the Mt. Scopus Standards). Other requirements applicable to administrative adjudicators are the right of review or appeal on decisions of administrative adjudicatory officers (Section  9A.8 of the Mt. Scopus Standards), independence from interference in substantive decision making, i.e. decisional independence (Section 9A.9 of the Mt. Scopus Standards), and allowing evaluation of performance for promotion (Section 9A of the Mt. Scopus Standards). The United Kingdom passed legislation providing that judicial independence must be guaranteed to ‘tribunal judiciary’.37 There is an on-going debate in the United States on ‘administrative law judges’ that are essentially an equivalent to the English ‘tribunal judiciary’.38 Great attention should be given to administrative adjudicators, tribunal and administrative judges, as well as other judicial officers. It seems that the development of the culture of judicial independence is moving in this direction.39 C

Limits on Judges Consultations 2011

In the second volume of Culture of Judicial Independence, Professor Forsyth analysed the regrettable incident of a judge in South Africa who approached judges in another court in an attempt to influence the case of a high ranking public officer of the state. Following that case, which continues to be dealt with, Professor Forsyth suggested that Article 7.12 be added as an amendment to the Mt. Scopus Standards of Judicial Independence. Article 7.12 addresses the issue of consultation and provides that “Except in cases of legitimate consultation, a judge shall not approach other judges not sitting with him on the panel on the cases.” Article 7.12 was approved as an amendment in Vienna in 2011. 37

38

39

Tribunals, Courts and Enforcement Act (2007), ch 15 (UK), available online at Section 1 amended the Constitutional Reform Act 2005. For further discussion of tribunals in the UK see Shimon Shetreet and Sophie Turenne, Judges on Trial: Independence and Accountability of the English Judiciary, Chapter 2 (2d Ed., Cambridge UP, 2013). See Jeffrey S. Lubbers, The Federal Administrative Judiciary: Establishing an Appropriate System of Performance Evaluation for ALJs, 7 Admin L J Am U 589, 613–617 (Fall 1993/ Winter 1994); James P. Timony, Performance Evaluation of Federal Administrative Law Judges, 7 Admin L J Am U 629, 641 (Fall 1993/Winter 1994). Suratt v Attorney-General of Trinidad and Tobago [2007] UKPC 55 (UK).

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Expressly Provided Procedure for Selection of Presidents of Courts

The Chief Justice, Chief Judges, and Presidents of a Court perform a significant role in managing the court. They also perform important administrative functions in assigning cases and by generally acting as a leader representative of the court vis-à-vis other branches of government. It is for these reasons that the Project decided that there should be a special provision in national legislation (and in international treaties) that regulates the selection of the Chief Justice or President of Court. Article 4.10 was approved as an amendment to the Mt. Scopus Standards of Judicial Independence in Vienna in 2011. E

Building and Maintaining the Culture of Judicial Independence Ghent 2012

The modern concept of judicial independence is that it extends beyond the simple principle of judicial independence to a wider concept of cultural development. The culture of judicial independence must include formal and informal aspects and insure proper standards of conduct for all branches of the government.40 This amendment addresses the broader idea of judicial independence, as applied to judges and their environment of service, along with the ethical conduct expected of judges. All societies and international bodies must seek to establish a culture of judicial independence, as it is essential for democracy and world peace. Judicial independence is founded upon creating institutional structure, establishing constitutional infrastructures, introducing legislative provisions and constitutional safeguards, creating adjudicative arrangements and jurisprudence, and maintaining ethical traditions and code of judicial conduct. Institutional structures must regulate the matters relative to the status of judges and jurisdictions, and constitutional infrastructure must embody the provisions of judicial protection. Legislative provisions must offer a detailed regulation of the basic constitutional principles of judicial independence and impartiality, and courts must add complimentary interpretations and jurisprudence on judicial conduct. The code of judicial conduct covers both the judge’s unofficial and official duties. Other aspect of the culture of judicial independence is the principle that the legislature should respect and implement judicial decisions and refrain from passing legislation that reverses such decisions.41 40 Shetreet, supra note 5, at 19 ff. 41 Shetreet, Legislative Reversals of Judicial Decisions: The Case for respectful Dialogue between the Judiciary and the Legislature, in The Rule of law: A Conceptual Perspective, Festschrift for Anton MJ Cooray, chapter 12 (2013).

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481

Guidelines Regarding Public Inquiries by Judges

The practice of judges chairing commissions of inquiry has been very wide over the years. 42 It is a practice followed at the national level as well as at the international level. Most of the inquiries conducted by judges have public and political ramifications. The importance of insuring the impartiality and independence of judges while serving as members of a commission of inquiry was recognized by the International Project of Judicial Independence. Based on a study advanced in Ghent by Sir Louis Blom-Cooper and agreed to in Hong Kong, Article 9B was approved as an amendment to the Mt. Scopus International Standards of Judicial Independence. Article 9B addresses the caution that judges must take to ensure impartiality during their service as chair or member of a commission of inquiry. Serving members of the judiciary must accept appointments as a Commissioner of Inquiry on behalf of the government only in such capacity as a public servant in public administration, not as a judge, and only after careful consideration of the ramifications of acceptance. He must act impartially and insist that all matters of the procedure be at his complete discretion. He must consider all responses to warning letters and must act impartially during mediation or arbitration.43 IV

Agenda for Future Focus Issues in Coming Conferences

Based on the discussions in Ghent and Hong Kong, the agenda of debates regarding amendments to Mt. Scopus will focus on three main topics: the legal profession and judicial independence, the drafting of a Global Judicial Ethics Code, and the development of guidelines on Online Justice or odr. A

The Legal Profession and Judicial Independence

The lawyer and bar associations perform an important role, both as individuals and as organisations of lawyers. It is therefore important that a special detailed amendment to the Mt. Scopus Standards of Judicial Independence be devoted to this issue after proper deliberations in the next conferences (in Moscow and Osnabrück). A background paper was prepared by Prof. Andrew Lesuer will 42

43

For analysis of recent examples in the UK see Sir Louis Blom Cooper, Horses for Courses: Judges for public Inquiries, paper delivered at the international Conference in City university of Hong Kong (2012). See also Article 9B of the Mt. Scopus International Standards.

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form the basis of the discussion along with other papers to be distributed at the coming conferences. B

Global Judicial Ethics Code

In Ghent and San Diego it was resolved, at the suggestion of Prof. Marcel Storme, and with the support of Prof. Shetreet, to embark upon a project to develop a global judicial ethics code. It will be done in two parts. One part will deal with conduct on the bench while the other will focus on conduct off the bench, i.e. on rules governing conduct outside judges’ official duties. C

Online Justice or Online Dispute Resolution (odr)

We should analyse the increasing recourse to online justice practices and procedures whereby consumers are compelled to work out disputes and arguments against major companies online or via digital procedures. The digital procedures of handling consumer complaints are conducted by phone centres and call centres which sometimes are not even in the jurisdiction where the dispute arose, but rather are conducted by out-of-jurisdiction outsourcing call centres. The solution is to require separate, independent complaints officers44 and to impose a duty on companies to establish separate departments presided over by persons who enjoy independence from the accounting and financial officers. Only they should be in charge of handling the complaints from consumers. The complaints officers must enjoy decisional independence similar to that of administrative adjudicators.45 In online dispute handling, there is also an increasing recourse to online justice in divorce, where uncontested divorce is completed entirely by internet communication with the relevant court or state agency. When such a procedure is performed online impartiality and fairness are not maintained and the outcome of critical issues can be affected, from distribution of the marital estate to parenting plans. We must consider proper guidelines to apply to online justice.

44 45

Meaning separate from the ordinary company departments such as accounting and finance departments which now entertain the complaints. See Article 9A of the Mt. Scopus Standards, supra, this Chapter.

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483

In Pursuit of the Protection of Judicial Independence

The activity of the jiwp Association is largely concerned with research and study. But the Association is also engaged in the pursuit of the protection of judicial independence around the globe. Sometimes the jiwp Association is approached by senior judges asking for materials, books, and sources while cases regarding judges are being considered; the Association provides such sources expeditiously to requesting judges. The jiwp Association also was active in calling attention, at the request of judges from Egypt during President Mursy’s term of office, to help protect the independence of the judiciary and the rule of law when President Mursy attempted to reduce the retirement age of judges (among other measures adversely affecting judicial independence and the rule of law). The bill was introduced with a view to lower the age of judiciary retirement and thereby aid in the replacement of secular judges with regime sympathizers.46 The Association brought attention to cases of adverse legislation touching upon judicial independence and the rule of law in other jurisdictions. The Association brought the attention to Argentina’s Congress’ legislation limiting injunctions against government policies and creating three new appellate courts, making the legal system less beholden to special interest groups.47 46 47

Egyptian Judges Back Out of Reform Conference with Morsi, http://www.cbsnews .com/8301-202_162-57584751/egyptian-judges-back-out-of-reform-conference-with-morsi/. Argentina Leader Wins Say Over Courts, http://online.wsj.com/article/SB10001424127887 324743704578444831718223010.html.

Part nine Text of the International Standards of Judicial Independence

∵

Appendix I

Mount Scopus International Standards of Judicial Independence Approved March 19, 2008 Consolidated 2013

Preamble These revised standards are approved in recognition of the need for the revision of the guidelines of general application to contribute to the independence and impartiality of the judiciary, with a view to ensuring the legitimacy and effectiveness of the judicial process. In formulating these standards due regard has been given to the New Delhi Minimum Standards on Judicial Independence 1982 and the Montréal Universal Declaration on the Independence of Justice 1983 drafted with the assistance of members of the International Project of Judicial independence of the International Association of Judicial Independence and World Peace and to the un Basic Principles of Judicial Independence 1985 and the long series of sets of other international rules and standards relating to judicial independence and the right to a fair trial; and The Burgh House Principles of Judicial Independence in International Law (for the international judiciary). Inspiration has also been drawn from the Tokyo Law Asia Principles; Council of Europe Statements on judicial independence, particularly the Recommendation of the Committee of Ministers to Member States on the 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 revision is important to enable the judiciary to play a role in the adequate protection of human rights and in the operation of an efficient and fair market economy with a human face in the era of globalisation. The standards give due consideration particularly to the fact that that each jurisdiction and legal tradition has own characteristics that must be recognised. It is also recognized

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_034

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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 Significance of the Independence of the Judiciary

1.1.

An independent and impartial1 judiciary is an institution of the highest value in every society2 and an essential pillar of liberty3 and the rule of law. 1.2. The objectives and functions of the judiciary shall include: 1.2.1.1. To resolve disputes and to administer the law impartially between persons and between persons and public authorities; 1.2.1.2. To promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and 1.2.1.3. To ensure that all people are able to live securely under the rule of law.4 1.3. It is vital that supranational and international Tribunals respect the 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.

Appendix I: Mt. Scopus STANDARDS



489

Building and Maintaining Culture of Judicial Independence6

1.4. Every society and all international bodies, tribunals and courts shall endeavour to build and maintain a culture of judicial independence that is essential for democracy, liberty, rule of law and human rights in domestic system of government and is a necessary foundation for world peace, orderly world trade, globalised markets and beneficial international investments. 1.4.1. The culture of judicial independence is created on five important and essential aspects: creating institutional structure, establishing constitutional infrastructures, introducing legislative provisions and constitutional safeguards, creating adjudicative arrangements and jurisprudence, and maintaining ethical traditions and code of judicial conduct. 1.4.2. The institutional structures regulate the matters relative to status of the judges and jurisdiction of the courts. 1.4.3. The constitutional infrastructure embodies in the constitution the main provisions of the protection of the judiciary as outlined in this standards. 1.4.4. The legislative provisions offer a detailed regulation of the basic constitutional principles of judicial independence and impartiality. 1.4.5. The courts add to the constitutional infrastructure and the legislative provisions complimentary interpretations and jurisprudence on different aspects of the conduct of judges operation and courts. 1.4.6. The ethical traditions and code of judicial conduct cover the judge’s official and non-official spheres of activities, and shield the judge’s substantive independence from dependencies, associations, and even less intensive involvements which might cast doubts on judicial neutrality.

2

The Judiciary7 and the Executive

2.1. The Judiciary as a whole shall be independent. 2.2. Each judge shall enjoy both personal independence and substantive independence:8 6 This Article 1.4 was added as an Amendment in October 2012 in the conference in Ghent. 7 The focus is really on the relationship with the judiciary as a whole, rather than with 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:

490

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: Mt. Scopus STANDARDS 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 Challenges, in Shetreet and Descenes Judicial Independence: The Contemporary Debate 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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491

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 Montréal Declaration Section  2.13. See also Shetreet, Judicial Independence: The Contemporary Debate, at 401. 13 Montréal Declaration. → “Political opinion” is also taken from ph Lane, Fragile Bastion: Constitutional Aspects of Judicial Independence (judicial independence is composed of at least five aspects: (1) non-political appointments to a court; (2) guaranteed tenure and salary; (3) executive and legislative interference with court proceedings or office holders; (4) budgetary autonomy; (5) administrative autonomy). 14 Montréal Declaration Section 2.11. 15 Exact wording of the Montréal Declaration, Section 2.11. 16 un Basic Principles.

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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

17 18 19

→ Change suggested in order to provide additional flexibility, and also to stress how this is an important enough issue to be constitutionally entrenched. In the interests of completeness. The focus is really on the relationship with the judiciary as a whole, rather than with individual judges. 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 retirement age from 65 to 62 years with immediate effect. This resulted in the

494

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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. 5.2. With the exception of proceedings before the Legislature,31 the procedure for

retirement of two distinguished judges. This was in fact a legislative removal of these two judges though it was in theory a general statute. 25 In order to make this mandatory. 26 “Merit” is broader than “ability.” 27 un Basic Principles. → Montréal Declaration provides: “Promotion of a judge shall be based on an objective assessment of the candidate’s integrity and independence of judgment, professional competence, experience, humanity and commitment to uphold the rule of law.” 28 Scottish temporary judges cases Starrs and Chalmers v. D.F. Linlithgow 2000 S. L. 2; Clancy v. Caird 2000 Scottish Law Times,The Bailiff Judicial Appointments ( Scotland ) Act 2000. 29 The un Basic Principles adds “in his/her judicial and professional capacity.” This wording was not added here to prevent personal suits being lodged against judges as a back-door method of interfering with their independence. 30 un Basic Principles. 31 Montréal Declaration Section 2.36.

Appendix I: Mt. Scopus STANDARDS

5.3. 5.4. 5.5.

5.6.

5.7.

6

495

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 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. All disciplinary, suspension and removal34 actions shall be based upon established standards of judicial conduct.35 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 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. The head of the court may legitimately have supervisory powers to control judges on administrative matters.

The Media and the Judiciary

6.1. It should be recognized that judicial independence does not render judges free from public accountability, however, the media and other institutions should show respect for judicial independence and exercise restrain in criticism of judicial decisions.37 6.2. While recognising the general right of freedom of expression of all citizens, a judge should not interview directly with the general media. If a judge needs to 32 Montréal Declaration Section 2.36. 33 Montréal Declaration Section 2.36. 34 Inclusive. 35 Montréal Declaration Section 2.34. Broad. 36 un Basic Principles. 37 See discussion by Julie Debeljak, Judicial Conference of Australia, Uluru, April 2001: Judicial Independence: A Collection of Material for the Judicial Conference of Australia regarding the consequences of inappropriate public criticism (it leaves judges having to choose between being silent leading to a potential decrease in public confidence in the judiciary, or else inappropriately being drawn into public criticism).

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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.38

7

Standards of Conduct39

7.1. Judges may not serve in Executive or Legislative functions, including as: 7.1.1. Ministers of the government; or as 7.1.2. Members of the Legislature or of municipal councils. 7.2. Judges shall not hold positions in political parties. 7.3. A judge, other than a temporary or part-time judge, may not practice law. 7.4. A judge should refrain from business activities and should avoid from engaging in other remunerative activity,40 that can affect the exercise of judicial functions or the image of the judge, except in respect of that judge’s personal investments, ownership of property, the business activities or ownership of property of family members,41 or that judge’s teaching at a university or a college. 7.5. A judge should always behave in such a manner as to preserve the dignity of the office and the impartiality, integrity and independence of the Judiciary. 7.6. Judges may be organized in associations designed for judges, for furthering their rights and interests as judges. 7.7. Judges may take appropriate action to protect their judicial independence.42 7.8. A judge shall disqualify himself or herself from participating in any proceedings in 38 39

40 41 42

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). 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.

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497

which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. 7.9. Such proceedings include, but are not limited to, instances where (a) the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; (b) the judge previously served as a lawyer or was a material witness in the matter in controversy; or (c) the judge, or a member of the judge’s family, has an economic interest in the outcome of the matter in controversy: Provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice.43 7.10. A case should not be withdrawn from a particular judge without valid reasons, such as cases of serious illness or conflict of interest. Any such reasons and the procedures for such withdrawal should be provided for by law and may not be influenced by any interest of the government or administration. A decision to withdraw a case from a judge should be taken by an authority which enjoys the same judicial independence as judges.44 7.11. Judges shall discourage ex parte communications from parties and except as provided by the rules of the court such communications shall be disclosed to the court and to the other party. 7.12. Except in cases of legitimate consultations a Judge shall not approach other judges not sitting with him on the same panel on pending cases.45

8

Securing Impartiality and Independence46

8.1. A judge47 shall enjoy immunity from legal actions in the exercise of official functions.48 43 44 45 46 47 48

Bangalore Principles. Recommendation No. R(94)12). of the committee of Ministers of the Council of Europe to Memner States. 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

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8.2. A judge shall not sit in a case where there is a reasonable suspicion of bias or potential bias.49 8.3. A judge shall avoid any course of conduct which might give rise to an 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, threats50 or interferences, direct or indirect, from any quarter or for any reason. The law should provide for sanctions against persons seeking to influence judges in any such manner. Judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law. Judges should not be obliged to report on the merits of their cases to anyone outside the judiciary.51

9

The Internal Independence of the Judiciary

9.1. In the decision-making process, a judge must be independent vis-à-vis his 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.52

9A

Administrative Adjudicators53 Administrative Adjudicatory Officers

9A.1. Definitions In this section the term administrative adjudicators means — Administrative officers exercising judicial functions in agencies but are not part of the regular court system. 49

50 51 52 53

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 2C.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. Montréal Declaration Section 2.03. This Article 9A was added as an Amendment in Vienna in 2011.

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499

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. 9A.10. Administrative adjudicators shall be subject to evaluation according to objective criteria that are related to promoting uniform decisional standards.



Public Inquiries by Judges54

9B

If a serving member of the judiciary accepts appointment as a Commissioner of Inquiry on behalf of Government, he or she does so not in the capacity of a judge but as a public servant in public administration. 9B.1. While a serving judge conducts a public inquiry, in accordance with terms of reference stated by the Government, he must act impartially and independently of any party interested in the substance of the public inquiry. 9B.2. A serving judge who chairs a public inquiry is entitled to insist that all matters of the procedure in the conduct of the inquiry shall be at his complete discretion; in particular he or she may, according to the applicable law or standards, issue a warning letter to any interested party of any complaint that may appear in the Inquiry’s report to Government.

54

This Article 9B was added as an Amendment in Ghent in 2012.

500

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9B.3. If an interested party responds to any such warning letter from the public inquiry, the judge will consider such response, and if necessary, indicate that it has been considered in the preparation of the final report to Government. 9B.4. Upon receiving a request to chair a commission of inquiry, a judge shall carefully consider all the ramifications of such appointment before giving consent to said appointment. 9B.5. Judges who exercise other functions such as in alternative dispute resolution (adr), in mediation or arbitration, shall act impartially and independently of any party to the relevant procedure.

B

International Judges

The following text on minimum standards for the independence of the international judiciary is based, with minor amendments, on the Burgh House Principles on the Independence of the International Judiciary which were formulated by the Study Group of the International Law Association on the Practice and Procedure of International Courts and Tribunals.

10 Independence 10.1. The international courts and the judges shall exercise their functions free from direct or indirect interference or influence by any person or entity. 10.2. This freedom of the judges and courts shall apply both to the judicial process in pending cases, including the assignment of cases to particular judges, and to the operation of the court and its registry. 10.3. The court shall be free to determine the conditions for its international 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.

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501

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.

13

Service and Remuneration

13.1. Judges’ essential conditions of service shall be enumerated in legally binding instruments. 13.2. No adverse changes shall be introduced with regard to judges’ remuneration and other essential conditions of service during their terms of office. 13.3. Judges should receive adequate remuneration which should be periodically adjusted in line with any increases in the cost of living at the seat of the court. 13.4. Conditions of service should include adequate pension arrangements.

14

Privileges and Immunities

14.1. Judges shall enjoy immunities equivalent to full diplomatic immunities, and in particular shall enjoy immunities from all claims arising from the exercise of their judicial functions.

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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. 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.

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18

503

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. 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.

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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. 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.

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25

505

Withdrawal or Disqualification

25.1. Each court shall establish rules of procedure to enable the determination whether judges are prevented from sitting in a particular case as a result of the application of these Principles or for reasons of incapacity. Such procedures shall be available to a judge, the court, or any party to the proceedings.

26 Misconduct 26.1. Each court shall establish rules of procedure to address a specific complaint of misconduct or breach of duty on the party of a judge that may affect 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. 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

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Co-Chairs of the International Conference on Judicial Independence on International Law, Jerusalem, 26–27 June 2007

Professor Shimon Shetreet, Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem, former Director, Sacher Institute of Comparative Law Professor James R. Crawford, Faculty of Law, University of Cambridge

II

Officers of the International Conference on Judicial Independence for the Drafting of the International Standards of Judicial Independence, Zurich Area Conference, 30 November–1 December 2007

Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Christopher F Forsyth, Co-Chair of the Conference, Director Centre of Public Law, Faculty of Law, University of Cambridge Professor Marcel Storme, Emeritus Professor, Ghent University, Past President of the World Association of Procedural Law, Leader of the Discussions H.E. Markus Buechel, Chair of the Local Organising Committee

III

Co-Chairs of the International Conference on Judicial Independence and the Constitutional Position of the Judiciary, Jerusalem, 18–20 March 2008

Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Christopher F Forsyth, Co-Chair of the Conference, Director Centre of Public Law, Faculty of Law, University of Cambridge

IV

Co-Chairs of the International Conference on Judicial Independence: The Challenge of Implementing the International Standards, Krakow, November 2008

Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Dr. Fryderyk Zoll, Faculty of Law, Jagelonian University, Krakow

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V

507

Co-Chairs of the International Conference on the The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, University of Cambridge. 14–16 August 2009

Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Christopher F Forsyth, Co-Chair of the Conference, Director Centre of Public Law, Faculty of Law, University of Cambridge

VI

Co-Chairs of the International Conference on Judicial Independence: Challenges for Judicial Independence, Implementing Judicial Independence in Multi-cultural Societies and in Times of Crisis, University of Utah, 1–3 October 2010

Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Dean Hiram Chodosh, Co-Chair of the Conference, Dean, School of Law, University of Utah Professor Wayne McCormack, Co-Chair of the Conference, E.W. Thode Professor of Law of Law, University of Utah

VII

Co-Chairs of the International Conference on Judicial Independence, University of Vienna, 20–22 May 2011

Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Walter Rechberger, Co-Chair of the Conference, Faculty of Law, University of Vienna

VIII

Co-Chairs of the International Conference on Judicial Independence and Globalisation, City University of Hong Kong, 21–23 March 2012

Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Anton Cooray, Associate Dean of Law, City University of Hong Kong

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Co-Chairs of the International Conference on Judicial Independence: Impartiality and Fairness of the Judicial Process, University of Ghent, 18–20 October 2012

Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Marcel Storme, University of Ghent, Belgium, Honorary President, International Association of Procedural Law

X

Co-Chairs of the International Conference on Judicial Independence: Rule of Law and World Peace, University of San Diego, August 2013

Professor Shimon Shetreet, Co-Chair of the Conference, Director, Sacher Institute of Comparative Law, and Greenblatt Professor of Public and International Law, Hebrew University of Jerusalem Professor Maimon Schwarzschild, Co-Chair of the Conference, Professor of Law, University of San Diego Members of the Consultation Group of the International Project of Judicial Independence: Professor Neil H. Andrews, University of Cambridge, Clare College, Professor Frank Bates, School of Law, University of Newcastle Australia Professor John Bell, Faculty of Law, University of Cambridge Professor Vernon Bogdanor, Oxford University Dr. Tomer Braude, Faculty of Law, Hebrew University Professor Dr. Winfried Brugger, Universitat Heidelberg H.E. Advocate Markus Buechel, Senior Lawyer, Liechtenstein Professor Federico Carpi, President of the World -Association of Procedural Law Professor Oscar G. Chase, New York University School of Law Professor Albert Chen, Professor of Law, Hong Kong University Professor Hiram Chodosh, Dean, S.J. College of Law, the University of Utah Professor Sir Louis Blom Cooper, UK Professor Anton Cooray, The School of Law, City University of Hong Kong Professor James R Crawford, Faculty of Law, University of Cambridge Dr. Cyrus Das, Former President of the Bar of Malaysia Professor Masahisa Deguchi, Faculty of Law, Ritsumeikan University Professor Chandra R. de Silva, Vice Provost, Old Dominion University Prof Yoav Dotan, Dean Faculty of Law, Hebrew University of Jerusalem

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Professor Bernhard Ehrenzeller, Universität St. Gallen Professor Jonathan Entin, Case Western Reserve University School of Law Professor Hans Walter Fasching, Austria Professor David Feldman, Chairman of the Faculty Board of Law, Faculty of Law, University of Cambridge Professor Christopher F Forsyth, Director Centre of Public Law, Faculty of Law, University of Cambridge Professor Martin Friedland, Faculty of Law, University of Toronto Professor Bryant G. Garth, American Bar Foundation Professor Peter Gilles, Institut fur Rechtsvergleichung, Johann Wolfgang Goethe Universitat Professor Stephen Goldstein, Emeritus Professor, Hebrew University of Jerusalem Professor Peter Gottwald, Universitat Regensburg, Secretary General World Association of Procedural Law Professor Ada Pellegrini Grinover, Brazil Professor Walter Habscheid, Emeritus Professor, University of Zurich Professor Walther J. Habscheid, Emeritus Professor, University of Geneva and University of Zurich Prof. Yitzhak Hadari, Tel Aviv University, Natanya College Law Professor Dr. Burkhardt Hess, University of Heidelberg Professor Moshe Hirsh, Faculty of Law, Hebrew University of Jerusalem Justice Tassaduq Hussain Jillani, Judge of the Supreme Court of Pakistan Professor John Anthony Jolowicz, Trinity College, University of Cambridge Professor Konstantinos D. Kerameus, University of Athens Professor Nikolas Klamaris, University of Athens Professor Ruth Lapidot, Faculty of Law, Hebrew University of Jerusalem Professor Per Henrick Lindblom, Faculty of Law, Uppsala University Juridicum Professor Asher Maoz, Tel-Aviv University, Faculty of Law Professor Stephen Marks, Francois-Xavier Bagnoud Professor of Health and Human Rights, Department of Population and International Health, Harvard School of Public Health. Professor Sean McConville, Professor of Law and Professorial Research Fellow School of Law, Queen Mary College , University of London Professor Dr. Francisco Ramos Mendez, University of Barcelona Paul Morris, Barrister, York, UK Professor James Nemeth, Eotvos Lorand University, Hungary Professor Dr. Paul Oberhammer, Universität, Zürich Professor Roger Perrot, Université de Paris Professor Hoong Phun (“HP”) Lee, Deputy Dean, Faculty of Law, Monash University Professor Walter H. Rechberger, University of Vienna

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Professor Judith Resnik, Yale Law School Professor Michel Rosenfeld, Benjamin N. Cardozo School of Law, Yeshiva University Professor Maimon Schwarzschild, Faculty of Law, University of San Diego Dr. Anat Scolnicov, Deputy Director, Centre of Public Law, University of Cambridge Prof. Yuval Shany, Faculty of Law, Hebrew University of Jerusalem Professor Shimon Shetreet, Director, Sacher Institute of Comparative Law Hebrew University of Jerusalem Professor Gary J Simson, Dean, Case Western Reserve University Professor Zhivko Stalev, Bulgaria Professor Marcel Storme, Ghent University, Past President of the World -Association of Procedural Law Professor Yasuhei Taniguchi, Senshu University, Tokyo Professor Daniel Thurer, Universität Zürich Professor Keith Uff, Executive Secretary General, International Association of Procedural Law, Professor, Faculty of Law, University of Birmingham Professor K.K. Venogopal, Senior Advocate of the Supreme Court, India Professor Garry D. Watson, Osgoode Hall Law School, York University Prof Joseph Weiler, New York University Professor Neil James Williams, University of Melbourne, Professor Pelayia Yessiou-Faltsi, Faculty of Law, Aristotle University of Thessaloniki Professor Andreyj J. Zoll, Former President of Constitutional Court of Poland Professor Dr. Fryderyk Zoll, Faculty of Law, Jagelonian University, Krakow



International Law Association Study Group on the Practice and Procedure of International Courts and Tribunals on the Independence of International Judges

Co-Chairs Philippe Sands, Professor of Law, University College London; Co-Director, Project on International Courts and Tribunals Campbell McLachlan, Professor, Deputy Dean, School of Law, Victoria University of Wellington

Members Laurence Boisson de Chazournes, Professor of International Law, University of Geneva Rodman Bundy, Frere Cholmeley Eversheds, Paris James Crawford, Whewell Professor of International Law, Cambridge University

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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

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 jutheial appointments an& promotions, whether by judicial commission or otherwise, is imperative for the maintenance of judicial independence. (c) The Legislature may be vested with the powers of removal of judges, preferably upon a recommendation of a judicial commission. (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.

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(c) The Legislature may be vested with the powers of removal of judges, preferably upon a recommendation of a judicial commission. 5. The Executive shall not have control over judicial functions. 6. Rules of procedure and practice shall be made by legislation or by the Judiciary in cooperation with the legal profession, subject to parliamentary approval. 7. The state shall have a duty to provide for the execution of judgments of the Court. The Judiciary ihall exercise supervision over the execution process. 8. Judicial matters are exclusively within the responsibility of the Judiciary, both in central judicial administration and in court level judicial administration. 9. The central responsibility for judicial administration shall preferably be vested in the Judiciary or jointly in the Judiciary and the Executive. 10. It is the duty of the state to provide adequate financial resources to allow for the due administration of justice. 11. (a) Division of work among judges should ordinarily be done under a 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 practicable. (c) Subject to (a), the exclusive responsibility for case assignment should be vested in a responsible judge, preferably the President of the Court. 12. The power to transfer a judge from one court to another shall be vested in a 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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Appendix II: NEW DELHI CODE OF MINIMUM STANDARDS (b) The Executive shall not have the power to close down, or suspend, the operation of the court system at any level.

B 19. 20.

21.

C

Judges and the Legislature The Legislature shall not pass legislation which retroactively reverses specific court decisions. (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. (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. A citizen shall have the right to be tried by the ordinary courts of law, and shall not be tried before ad hoc tribunals.

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. 28. The procedure for discipline should be in camera; however, judgments in disciplinary proceedings may be published.

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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. 40. A judge should refrain from business activities, except his personal investments, or ownership of property.

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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, 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.

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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. 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

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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

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J.M. Ganado, Malta B.J. Van Heyst, The Netherlands Niki Tobi, Nigeria Haakon I Flaraidsen, Norway Alexandra M. Pessoa Vaz, Portugal G.D. Andrew, South Africa A. Trani Pelayo, Spain Andrea Audersson,. Sweden Joseph. M.N. Kakooza, Uganda Robert B. McKay, United States of America James M. Parkison, United States of America Biographical Notes of Officers and Topical & Country Reporters: Anres Andersson, Judge, Svea Court of Appeal, Sweden; graduate of the Faculty of Law, University of Lund, Sweden; formerly, Judge of the Stockholm City Court. Geoffrey David Andrew, Attorney, Johannesburg, South Africa; University of Capetown; Dip. Juris, University of the Orange Free State. Celci Agricola Barbi, Professor of Law and practicing lawyer in Brazil; graduate of Federal University of Minas Gerais, Brazil. Marc-Andre Bedard, Minister of Justice of Quebec, Canada. Mauro Cappelletti, Professor of Law, Stanford University, California, and Professor of Law, University of Florence, European Institute; studied at the University of Florence and Freiburg im Breisgau; has been visiting Professor at various universities, including Harvard University, University of California at Berkeley and Paris 1. David B. Casson, Dean and Professor, University of Buckingham School of Law, formerly Head of the Law Section, University of Surry, Guilford, Surrey, England. Jules Desehenes, Justice of the Superior Court of the Province of Québec, formerly the Chief Justice: of the same court, 1973–1983; legal studies University of Montréal, M.C.L., F.RS.C. Held high judicial offices in Québec, including Justice of the Court of Appeal of Quebec, (March 1972–August 1973); Knight of the Order of Malta; honorary doctoral degree: Concordia university member, United Nations Sub Commission on the Prevention of Discrimination, and Protection of: Minorities; General Coordinator, the First World Conference on the Independence of Justice; Chairman, Ad Hoc Committee, the, World Organization on the independence of Justice; author of a number of books, numerous publications in legal and lay journals. Hans W Fasching, Professor of Procedural Law, University of Vienna; a graduate of University of Graz, Doctor of Laws, 1950; Chairman of the Commission of Civil Procedure of the-Federal Ministry of Justice of Austria. J.M. Ganado, Professor of Law, and attorney, Valetta, Malta; B.A., Ph.D. (London).

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Peter Gilies, University Professor of Civil Law, Procedural Law and Comparative Law, Co-Director of the Institute of Comparative Law, Johann Wolfgang Goethe University, Frankfurt. Studied law and economics, 1958–1962; doctoral degree, 1965; Professor of Civil Law and Procedural Law at Goethe University, Frankfurt, 1972–1975 and since 1979; Professor of Civil Law and Procedural Law, University of Hannover, 1975–1979. Walther J. Habscheid, Professor of Law, University of Zurich, Switzerland, Doctor of Laws, University of Bonn; formerly Rector, Dean and Professor of Law University of Wuerzburg, Germany; Professor of Law, University of Geneva, honorary doctoral degree, University of Caen, France; Chairman, VIIth International Congress of Procedural Law, Wuerzburg, 1983 Author of several books and numerous publications in legal journals. Haakon I. Haraldson, Attorney-at-Law, Oslo, Norway; graduate of the Faculty of Law, University of Oslo; formerly, deputy judge at the County and the City Court of Lillehammer. David K. Hease, Judge, Family Court of Australia, Adelaide, South Australia, Chairman, International Bar Association Committee on the Administration of Justice, 1980. 1984; General Coordinator, iba Project on Minimum Standards of Judicial Independence, since 1981. Joseph M. N Kakooza, Advocate, Kampala, Uganda. Leonard James King, Chief Justice of South Australia since 1978; served in R.A.A.F., 1943–1946, in Australia and New Guinea; Bachelor of Laws, University of Adelaide, 1950; admitted to the bar, 1950; Queen’s Counsel, 1967; elected to House of’ Assembly, 1970 served, as Attorney-General, Minister of Community Welfare; and, later, Minister of Prices and Consumer Affairs; Judge of Supreme Court of South. Australia 1975. Michael D. Kirby, President, Court of Appeal, New South Wales, Australia; formerly Chairman, Law Reform Commission of Australia; Justice, Supreme Court of New South Wales; Author of books and articles in legal publications. K.D. Kerameus, Professor, Athens University Law School since 1982; LL.B., University of Thessaloniki, 1960; Ph.D., Free University of Berlin, 1962; Professor of Civil Procedure at the University of Thessaloniki Law School 1970–1982; Dean of the University Of Thessalonica Law School, 1979–1980; Visiting Professor of Law, Free University of Berlin, Hamburg, Louisiana State University, Baton Rouge, Thrace University in Komotini, Greece, Ohio State University Columbus and Tulane University, New Orleans; member of the Special Supreme Court (Constitutional Court) in Athens. F. Grivart de Kerstrat, Member, Faculty of Law and Political Science, University of Aix/Marseilles. Enoch D. Kom, Solicitor of the Superior Court of Judicature and Notary Public, Accra, Ghana; LL.B. (Land.), Barrister at Law, Gray’s Inn.

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Nobuo Kumarnuto, Professor of Administrative Law at Hokkai-Gakuen University since 1974, LL.B., LL.M., LL.D, Hokkaido University and LL.M., University of California at Berkeley; Fulbright Visiting Scholar at the University of Michigan Law School 1968– 1970; Visiting Professor, Hebrew University of Jerusalem, 1981 and Tulane Law School, 1982; Author and editor of books and articles. Irma Anikkki Lager (Kepila), Acting Professor of Law, University of Helsinki since 1974; Bachelor of Laws, 1954; Licentiate Examination of Laws, 1958; Assistant Judge, 1959; J.D. 1972; Referendary in the Supreme Administrative Court, 1959–1966. Geoffrey Dawson Lane, Baron Lane,; Lord Chief Justice of England since l980; PC, 1974; Knight, 1966; AFC, 1943. Education: Trinity College, Cambridge, (Hon. Fellow, 1981); served in RAF, 1939–1945; called to Bar, Gray’s Inn, 1946; Bencher, 1966; Queen’s Counsel, 1962; Deputy Chairman, Bedford Quarter Session, 1960–1966; Rector of Bedford, 1963–1966; Judge of the High Court of Justice, Queen’s Bench Division, 1966–1974; Lord Justice of Appeal, 1974–1979; Lord of Appeal in Ordinary, 1979–1980. Mark MacGuigan, Judge of the Federal Court, Appeal Division; formerly Federal Minister of Justice, Canada. Robert B. McKay, President, Bar Association of New York City; Professor of Law, New York University; B.S., 1940, University of Kansas; J.D., 1947; Yale University; Dean of New York University, School of. Law, 1969–1975; Director of the Institute of Judicial Administration at New York University Law School; Visiting Professor of Law at a number of universities, including University of California at Berkeley, University of Kansas, University of Texas, University of California at Hastings; honorary, degrees: LL.D., 1973, Emory University; D.H.L., 1973, Mount Saint, Mary College; LL.D., 1975, Seton Hall; numerous public and professional positions author of a number of books and numerous articles in legal journals; numerous papers in academic and professional conferences. M.A. Mutaleb, Advocate, Supreme Court Bar of Bangladesh and Mymensingh District Bar; in practice since 1965; regular contributor to legal journals in his region, past Vice President of the National Bar Association of Bangladesh and past member of the Bangladesh Bar Council; Director of the Asian Legal Research Institute. Fali S. Nariman, Sr. Advocate, Supreme Court of India, New Delhi; B.A. (Hon.) St. Xavier’s College, Bombay; LL.B., Government Law College, Bombay; Vice President, LAW ASIA, the Law Association for Asia and Western Pacific; Chairman, LAW ASIA Human Rights Committee. James M. Parkison, Court Administrator, State of New Jersey; formerly Associate Director Institute of Judicial Administration at New York University, School of Law; Member, Ad Hoc Committee of the World Organization on the Independence of Justice; Special Rapporteur on Justice, First World Conference on the Independence of Justice.

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Antonio Beltran Pelayo, Government Secretary Granada, Spain; B.A. and Doctorate in Law, Granada University, Spain; author of several legal publications. Alexandre M. Pessoa Vaz, Professor of Law, University of Coimbra, Portugal. Lows Edmond Pettiti, Lawyer, Paris, and Judge, European Court of Human Rights, President, Le Mouvement International des Juristes Catholiques. Alessandro Pizzorusso, Director of the Comparative Law institute, Florence University since 1983; Magistrate, 1958 1972; Professor of Constitutional Law, Pisa University, 1972–1983. Anand Piakash, Senior Advocate of the High Court and Supreme Court of India since 1973; M.A., LL.B., Delhi University; B.Sc (Econ.) and Ph.D. (Econ.), London School of Economics, London University; Barrister-at-Law, Lincoln’s Inn, London. Simone Razes, President, Cour de Cassation, France; formerly, Judge, Court of Justice of the European Communities. Peter Sehlosser, Professor of Law, LMU, Munich, Germany. I.R. Scott, Barber Professor of Law, Faculty of Law, University of Birmingham; LL.B. (Melb.), Ph.D. (London); Chairman, Committee of Management, Institute of Judicial Administration, University of Birmingham, Executive Director, Victoria Law Foundation, 1982–1983. Shimon Shetreet, Faculty of Law, Hebrew University of Jerusalem; LLB., LL.M., Hebrew University; M.C.L., D.C.L, University of Chicago; Visiting Professor of Law at a number of universities; including New York University, University of Manitoba, Canada, Wuerzburg University (Germany), University of San Diego and New York. Law School; clerk to Mr Justice Witkon of the Supreme Court of Israel; Member of Chief Justice Landau Commission on the Israeli Court System, 1980; General Rapporteur, International Bar Association Project on Minimum Standards of Judicial Independence, since 1981; Special Rapporteur (on national judges), First World Conference on the Independence of Justice, 1983; General Rapporteur, XIIth Congress of Comparative Law, (on 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.

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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 III

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 an universally applicable theory of the independence of justice. It is now hoped that the effort will not prove fruitless and that it will bring closer the adoption by the United Nations of a “Universal Declaration on the Independence of Justice” through which all the peoples of the world may at last see the ideal 0 f justice dawning on the horizon.



The Declaration Unanimously adopted at the final plenary session of the First World Conference on the Independence of Justice held at Montreal (Quebec, Canada) on June 10th, 1983.

Preamble Whereas justice constitutes one of the essential pillars of liberty; Whereas the free exercise of fundamental human rights as well as peace between nations can only be secured through respect for the rule of law; Whereas States have long established courts and other institutions with a view to assuring that justice be duly administered in their respective territories; Whereas the Charter of the United Nations has established the International Court of Justice as its principal judicial organ in order to promote the peaceful solution of 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.

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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; (b) States and other external authorities shall respect and protect the secrecy and confidentiality of the courts’ deliberations at all stages.



Discipline and Removal

1.18 All measures of discipline and removal relating to judges shall be governed exclusively by the statutes and rules of their courts, and be within their jurisdiction. 1.19 Judges shall not be removed from office, except by a decision of the other members of the court and in accordance with its statute.



Judges Ad Hoc and Arbitrators

1.20 Unless reference to the context necessarily makes it inapplicable or inappropriate, the foregoing articles shall apply to judges ad hoc and to arbitrators in public international arbitrations.

II

National Judges



Objectives and Functions

2.01 The objectives and functions of the judiciary shall include: (a) to administer the law impartially between citizen and citizen, and between citizen and state; (b) to promote, within the proper limits of the judicial function, the 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

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2.07

2.08

2.09 2.10

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any difference in grade or rank shall in no way interfere with the right of the judge to pronounce his judgment freely. The judiciary shall be independent of the Executive and Legislative. The judiciary shall have jurisdiction, directly or by way or review, over all issues of a judicial nature. (a) No ad hoc tribunals shall be established; (b) Everyone shall have the right to be tried expeditiously by the established ordinary courts or judicial tribunals under law, subject to review by the courts; (c) Some derogations may be admitted in times of grave public emergency which threatens the life of the nation but only under conditions prescribed by law, and only to the extent strictly consistent with 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.

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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. 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

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example. This principle is not intended to interfere with sound administrative practices enumerated in the law. Thus exceptions may be made, for example, where a judge in his early years is transferred from post to post to enrich his judicial experience.]

Tenure 2.19 (a) The term of office of the judges, their independence, security, adequate remuneration and conditions of service shall be secured by law and shall not be altered to their detriment. (b) Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or expiry of their term of office, where such exists. 2.20 The appointment of temporary judges and the appointment of judges for 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 requried to testify on such matters.

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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. 2.31 A judge shall not sit in a case where a reasonable apprehension of bias on his part may arise.



Discipline and Removal

2.32 A complaint against a judge shall be processed expeditiously and fairly under an appropriate practice, and the judge shall have the opportunity to comment on the complaint at the initial stage. The examination of the complaint at its initial stage shall be kept confidential, unless otherwise requested by the judge. 2.33 (a) The proceedings for judicial removal or discipline, when such are initiated, shall be held before a court or a board predominantly composed of 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.

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2.35 The proceedings for discipline of judges shall ensure fairness to the judge and the opportunity of a full hearing. 2.36 With the exception of proceedings before the Legislature, the proceedings for discipline and removal shall be held in camera. The judge may, however, request that the hearing be held in public, subject to a final and reasoned disposition of this request by the disciplinary Tribunal. Judgments in disciplinary proceedings, whether held in camera or in public, may be published. 2.37 With the exception of proceedings before the Legislature or in connection with them, the decision of a disciplinary Tribunal shall be subject to appeal to a court. 2.38 A judge shall not be subject to removal except on proved grounds of incapacity or misbehaviour, rendering him unfit to continue in office. 2.39 In the event that a court is abolished, judges serving in this court shall not be affected, except for their transfer to another court of the same status.



Court Administration

2.40 The main responsibility for court administration shall vest in the judiciary. 2.41 It shall be a priority of the highest order, for the state to provide adequate resources to allow for the due administration of justice, including physical facilities appropriate for the maintenance of judicial independence, dignity and efficiency, judicial and administrative personnel, and operating budgets. 2.42 The budget of the court shall be prepared by the competent authority in 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.

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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. 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

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

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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.



Education of the Public Concerning the Law

3.09 It shall be the responsibility of the lawyer to educate the members of the public about the principles of the rule of law, the importance of the independence of the judiciary and of the legal profession and to inform them about their rights and duties, and the relevant and available remedies.



Rights and Duties of Lawyers

3.10 The duties of a lawyer towards his client include: (a) advising the client as to his legal rights and obligations; (b) taking legal action to protect him and his interests; and, where required, (c) representing him before courts, tribunals or administrative authorities. 3.11 The lawyer, in discharging his duties, shall at all times act freely, diligently and fearlessly in accordance with the wishes of his client and subject to the established rules, standards and ethics of his profession without any inhibition or pressure from the authorities or the public. 3.12 Every person and group of persons is entitled to call upon the assistance of a lawyer to defend his or its interests or cause within the law, and it is the duty of the lawyer to do so to the best of his ability. Consequently the lawyer is not to be identified by the authorities or the public with his client or his client’s cause, however popular or unpopular it may be. 3.13 No lawyer shall suffer or be threatened with penal, civil, administrative, economic or other sanctions by reason of his having advised or represented any client or client’s cause. 3.14 No court or administrative authority shall refuse to recognize the right of a lawyer to appear before it for his client. 3.15 It is the duty of a lawyer to show proper respect towards the judiciary. He shall have the right to raise an objection to the participation or continued participation of a judge in a particular case, or to the conduct of a trial or hearing.

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3.16 If any proceedings are taken against a lawyer for failing to show proper respect towards a court, no sanction against him shall be imposed by a judge who participated in the proceedings which gave rise to the charge against the lawyer. 3.17 Save as provided in these principles, a lawyer shall enjoy civil and penal 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. 3.18 The independence of lawyers, in dealing with persons deprived of their liberty, shall be guaranteed so as to ensure that they have free and fair legal assistance. Safeguards shall be built to avoid any possible suggestions of collusion, arrangement or dependence between the lawyer who acts for them and the authorities. 3.19 Lawyers shall have all such other facilities and privileges as are necessary to fulfill their professional responsibilities effectively, including: a) absolute 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. 3.20 Lawyers shall enjoy freedom of belief, expression, association and assembly; and in particular they shall have the right to: (a) take part in public discussion of 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 about such matters, and (d) take full and active part in the political, social and cultural life of their country. 3.21 Rules and regulations governing the fees and remunerations of lawyers shall be designed to ensure that they earn a fair and adequate income, and legal services are made available to the public on reasonable terms.



Legal Services for the Poor

3.22 It is a necessary corollary of the concept of an independent bar, that its members shall make their services available to all sectors of society, so that no one may be denied justice, and shall promote the cause of justice by protecting the human rights, economic, social and cultural, as well as civil and political, of individuals and groups. 3.23 Governments shall be responsible for providing sufficient funding for legal service programmes for the poor.

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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.



The Bar Association

3.25 There shall be established in each jurisdiction one or more independent and self-governing associations of lawyers recognized in law, whose council or other executive body shall be freely elected by all the members without interference of any kind by any other body or person. This shall be without prejudice to their right to form or join, in addition, other professional associations of lawyers and jurists. 3.26 In order to enjoy the right of audience before the courts, all lawyers shall be members of the appropriate Bar Association.



Function of the Bar Association

3.27 The functions of a Bar Association in ensuring the independence of the legal profession shall be inter alia: (a) to promote and uphold the cause of justice, without fear or favour; (b) to maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession; (c) to defend the role of lawyers in society and preserve the independence of the profession; (d) to protect and defend the dignity and independence of the judiciary; (e) to promote the free and equal access of the public to the system of justice, including the provision of legal aid and advice; (f) to promote the right of everyone to a fair and public hearing before a 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;

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(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: 0 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 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.

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IV Jurors

Selection of Prospective Jurors

4.01 The opportunity for jury service shall be extended without distinction of any kind by reason of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or status, subject however to citizenship requirements. 4.02 The names of prospective jurors shall be drawn from a jury source list compiled from one or more regularly maintained lists of persons residing in the court’s jurisdiction. 4.03 The jury source list shall be representative, and shall be as inclusive of the adult population in the jurisdiction, as is feasible. 4.04 The Court shall periodically review the jury source list for its representativeness and inclusiveness. Should the Court determine that improvement is needed in the representativeness or inclusiveness of the jury source list, appropriate 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 therefore, shall be the minimum consistent with the needs of justice. 4.07 All automatic excuses or exemptions from jury service shall be eliminated. 4.08 Eligible persons who are summoned may be excused from jury service only for valid reason by the court, or with its authorization.



Selection of a Particular Jury

4.09 Examination of prospective jurors shall be limited to matters relevant to determining whether to remove a juror for cause, and to exercising peremptory challenges. 4.10 If the judge determines during the examination of prospective jurors, that an individual is unable or unwilling to hear the particular case at issue fairly and impartially, the individual shall be removed from the panel. Such a 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.

540

Appendix III: MONTREAL DECLARATION

Administration of the Jury System

4.13 The responsibility for administration of the jury system shall be under the control of the judiciary. 4.14 The notice summoning a person to jury service shall be in writing, easily 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.



Jury Consideration and Deliberations

4.20 Procedures shall be provided to prevent a trial from being terminated because of unforeseen circumstances which would reduce the number of jurors. 4.21 Courts shall provide some form of orientation or instruction to persons called for jury service, to increase prospective jurors understanding of the judicial system, and prepare them to serve competently as jurors. 4.22 In simple language the trial judge shall: (i) directly following empanelment of the jury, give preliminary explanations of the jury’s role and of trial procedures; (ii) prior to commencement of deliberations, direct the jury on the law. 4.23 A jury’s deliberations shall be held in secrecy. Jurors shall not make public, 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. 4.25 (b) Standard procedures shall be promulgated to make certain that the inconvenience and discomfort of the sequestered jurors are minimized.

V Assessors Status 5.01 In defining assessor, the following shall be considered: In general, on certain judicial, quasi-judicial bodies or administrative tribunals, the assessor sits with a

Appendix III: MONTREAL DECLARATION

541

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

5.08 In the decision-making process, the assessor shall be free from any order or instruction by the authority which has appointed him, by the parties or by the professional associations to which he belongs. 5.09 The assessor shall have the right to participate in the decision with complete freedom and independence in the area of his jurisdiction. 5.10 The assessor shall behave in such a manner as will maintain the dignity of his position and the impartiality and independence of justice. 5.11 The assessor shall not sit in a case where a reasonable apprehension of bias on his part may arise. 5.12 The assessor shall be free to withdraw for generally accepted reasons.



Powers and Immunity

5.13 The assessor shall be vested with the authority, immunity and powers necessary to carry out his duties. 5.14 The assessor shall not be sued or harassed for acts and omissions in his official capacity.

542

Appendix III: MONTREAL DECLARATION

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) The International Judges (led by Judge Oxner and Batonnier Pettiti); (II) The National Judges (led by Justice Gonthier and Shimon Shetreet); (III) The Lawyers (led by Bttonier Louis Phillippe de Grandpr, and Debo Akande); (IV) The Jury (led by Chief Justice William Sinclair and Mr. James Parkison); (V) The Assessors (led by Judge Guerin and Judge Poirier). The chapters of the Declaration were finally approved by a plenary session of the Conference. Among the organisations which were represented in Montreal were the International Bar Association, International Commission of Jurists, International Court of Justice at The Hague, LAWASIA, European Court of Human Rights, Amnesty International, and numerous international lawyers’ organization.



Officers of the Montreal Conference



Chairman of the Conference

Chief Justice Jules Deschens, Chief Justice of Quebec

Appendix III: MONTREAL DECLARATION



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: Bttonier 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

543

In Memoriam

The Late HE Markus Buechel Former Prime Minister of the Principality of Liechtenstein

In memoriam of our colleague The late HE Markus Buechel Former Prime Minister of the Principality of Liechtenstein and Vice President of the jiwp Association we bring here the sad note of his passing away and selected memorial notes of the jiwp Members From Prof Shimon Shetreet Mourning the untimely passing away of our dear colleague Makus Buechel the former prime minister of Liechtenstein It is with deep sorrow and personal feeling of great loss that I am writing to advise that our dear friend and colleague Markus Buechel passed away this morning 9th of July at 6  am at his home in Rugell, Lichtenstein. In the last year he has conducted a challenging battle with a serious illness and in the last month he suffered a setback and in the last week his situation deteriorated Markus was a significant partner in the International Project of Judicial Independence. He hosted the December 2007 conference of the International Project of Judicial Independence, and took part in our conferences including the last one held in October 2012 at the University of Ghent. He served as the Vice President of the International Association of Judicial Independence and World Peace. The funeral will be held on Friday 10:00 am in Liechtenstein. I will send further details when I receive them. We mourn his passing away and we send condolences to Mrs Elena Buechel and David, the son. We will remember him as a fine man, distinguished leader, a devoted family man, a generous gentleman and a committed friend. We will greatly miss him. Sincerely, SHIMON SHETREET President, The International Association of Judicial Independence and World Peace

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004257818_037

546

In Memoriam

From Professor HP Lee Dear Shimon, Rose and I were deeply saddened by the news of the passing away of Markus. On the number of occasions we met him, he was always the paragon of gentlemanly behaviour and politeness. He generously extended his hand of friendship to us. We were extremely touched by his concern and lovely floral bouquet when Rose had to undergo an operation in the Hadassah Hospital after she had a fall in Jerusalem. Please convey our condolences to Mrs Elena Buechel and David. Sincerely, HP and Rose Professor Hoong Phun (‘HP’) Lee, Associate Dean (Academic Resourcing), Sir John Latham Professor of Law, Faculty of Law, Monash University, From Professor Maimon Schwartzchield Dear Shimon, This is very sad news. Markus was a kind, erudite, and courageously wise friend. We will miss him very much. With sorrow Maimon From Professor Avrom Sherr Likewise Shimon. He was a delightful man and so full of life. Avrom From Professor Marcel Storme Dear Shimon, I am very Sad that we lost our excellent colleague and good friend. He was still my guest at my home in Gent last year…I pray for him and for his family. Marcel STORME

In Memoriam

547

From Professor Keith Uff I share the sorrow of the other respondents to Shimon’s e-mail concerning the death of Markus Buechel. He will be sorely missed by many. Keith Uff From Professor Fryderyk Andrzej Zoll I am so sorry about this. It is just unbelievable Fryderyk From Professor Neil Andrews Dear Shimon thank you for letting us know. This is really sad and sudden news. I first met Markus when he attended your Herbert Smith Professor lecture in Cambridge, quite a few years ago. Since then, of course, we have all seen him regularly, and in so many countries. He was in twinkling form last Autumn when we met in Belgium at Gent. I remember having a long conversation with him, during which he ranged across a vast array of topics (history, culture, religion, social changes). And he loved being part of this group. Such an interesting and intellectually vital man. I will certainly miss him. I wish you and all our colleagues well. N From Professor Christopher Forsyth Dear Shimon, I share the sorrow of others at the passing of Markus whose kindness and sensitivity were exceptional. As ever, Christopher From Professor Ada Pellegrini Dear Shimon, it is with deep sorrow that I received the sad and unexpected news about the loss of Markus Buechel.

548

In Memoriam

I mourn his passing away and send condolences to his family. Ada Pellegrini Grinover From Professor Daniel Thuerer Dear all I am deeply sad. Markus Büchel was a remarkable man: gentle, warm, highly intelligent, cultivated, interested in other peoples’ ideas and feelings. The loss is big. We will all miss him. Cordially Daniel Thürer From Senior advocate Dmitry V. Magonya Dear Shimon, Dear Colleagues, I would like to express my deepest feelings about the loss of our dear friend and colleague Markus. Markus was an eminent person not indifferent to the global challenges of the contemporary world connected with such fundamental issues as human rights and world peace. Thanks to his scientific and personal contribution, we’ve worked out the International Project of Judicial Independence and moved forward in maintaining the unified rules of law all around the world. Moreover, the whole epoch in the modern Liechtenstein history is connected with the name of this prominent political figure. For years occupying important government posts, he has made a great contribution to the development of his country. In Russia Markus Buechel will be remembered as a successive supporter of strengthening the friendly relations and mutually fruitful cooperation between Russia and Liechtenstein. His dedication to his work has deserved the profound respect and love of all who knew him. Please accept my heartfelt condolences and give my sincere sympathy and support to his family and loved ones. Sincerely yours, Dmitry

Index Abuse of power  315 Accountability of the judiciary to the parliament  233, 244, 403 Accountability, judicial  35, 38, 374, 396 Administrative Adjudicators  43, 44, 465, 477, 478, 479, 482, 498, 499 Administrative judges  43, 44, 162, 436, 439, 479 Administrative procedural code  437, 440 Agenda for Next Conferences  465, 481 Air pollution  207, 208 Alabama  375 Alaska  375, 379, 386 Alien combatants  28, 29 Amendments to the Mt. Scopus Standards  466, 474 American Bar Association (“aba”)  22, 219, 228, 292, 282, 384, 496 American Family Association  384 Arbitration  266, 267, 274, 340–362, 438, 439, 440, 441 Arizona  375, 382 Australia  18, 22, 24, 26, 33, 34, 36, 39, 68, 146, 203, 205, 232–250, 281–285, 293, 296, 308, 309, 466, 468 Australian Constitution  34, 35, 242 Austria  19, 68, 156, 445–464 Austria, development of the law by judicial decisions  457 Austria, examples in Austrian Civil Procedure Law  459 Austria, existence of independent courts  446 Austria, independence and impartiality in the Austrian Civil Procedure  449 Austria, independence of a state court judge  444 Austria, impartiality of a state court judge  449 Austria, jurisprudence shall be based on law  456 Austria, right to a lawful judge  450 Austrian Administrative Court, the  453 Austrian Constitutional Court, the  452

Austrian Supreme Court, the  451 Bachman, Michelle  384 Baker, David  384 Balancing independence and accountability  35, 36 Bam, Dimitri  385 Belgium Constitutional Court  137, 138 Belgium Court of Cassation  137, 140 Bemess, Robert  379 Benjamin, Brent  382 Bilateral investment treaties (“bits”)  302, 303, 304, 305, 306, 307, 309, 310, 311 Briffault, Richard  377, 378 British Constitutional Reform Act  18 British Human Rights Act  18, 26, 29, 40, 45, 185, 187, 188, 190, 196, 198, 203, 205, 215, 397, 398, 401, 407, 467 Bureaucratization  412, 429 California code of conduct  22, 293, 380 California  375, 382 Canada  18, 22, 28, 29, 68, 282, 285, 293, 313 Cantons  363, 370 Challenges to constitutional structure  105 Challenge of Demarcating Boundary Line Between Executive Action and Court Intervention  190 Challenges to judicial independence   25, 26 Circuit Court (us)  376, 380, 383 Civil Law tradition  217 Civil Procedure Code of the Russian Federation. 2002  225, 228 Civil Rights Act  94 Civil society  xxxiv, 117, 118, 119, 121, 124, 128, 131, 132, 187, 319, 410 Clinton, Hillary  377 Code of Criminal Procedure  364, 369, 370 Code of Judicial Conduct  5, 6, 11, 20, 22, 46, 292, 293, 294, 327, 382, 384, 480 Code of Judicial Ethics  22, 293, 295, 329, 380, 416, 417

550

index

Commercial Arbitration Procedure Code of the Russian Federation 2002   228, 235 Commercial arbitration  266, 312, 316, 341, 351, 360, 361 Commercial award  317 Commercial risk  303, 304 Common law  205, 266 Confusion of the roles of professions   220, 221 Constitutional adjudication  16, 26, 33, 396, 399, 400, 401, 409, 410 Constitutional court  53, 54, 55, 56, 169, 397 Constitutional review  30, 32, 155, 156, 159, 169, 170, 173, 176, 177, 398, 400, 452 Constitutional tribunals  30, 156, 166, 177 Consultation duty  401 Contemporary judiciary  45, 47 Control over court funds  196, 428 Conversion contract  247, 310, 311, 312 Corriher, Billy  443, 444 Corruption  53, 55, 76, 84, 96, 318, 319, 320, 321, 328, 337, 376, 377, 384, 433 Court of Justice  100, 102, 155, 168, 330, 334, 335, 359, 438, 451, 470 Covered investment  304, 309, 311 Covered investor  308 cpc interference in trial courts  425 Cravans, Sarah  373 Cultural influence on civil procedure  388, 392 Culture of judicial independence  xxxiv, 19, 465 Culture of Judicial Independence: Conceptual Foundations and Practical Challenges  xxxiii, xxxv

Development of the International Project of Judicial Independence  466 Dispute settlement mechanism  304, 311, 312, 316, 435 Disqualification of judges  30, 281, 284, 286, 331, 337, 384, 497, 505, 532 District attorney  364, 366, 367, 368, 369 District Court (us)  376 Division of powers  24, 26 Duty to Send a Warning Letter to Affected Persons in Public Inquires  148

Deference (judicial deference, due deference)  191, 201, 202, 206, 214, 215, 250 Deficiencies in mainland China  425–430 Defining religion  89, 90 Definition of investment  302, 303, 304, 305, 309, 314, 316 Delineating independent authority  33, 133, 396, 398, 404, 490, 493 Democracy  15, 16, 20, 21, 26, 47 Democratic accountability  396, 398, 404

Fairness in Criminal Justice  149 Fairness in Criminal Procedure  151 Fairness Requirement before Commission of Inquiry  150 Fairness: The requirement of Impartiality in Administrative Law  147 Federal Court  363, 364, 365, 366, 369 Ferejohn, John  378, 379 Fiftieth Anniversary of the International Association of Procedural Law  466 First Amendment  91, 92, 376, 377

Economic growth  xxxiv ECtHR  18, 102, 103, 269, 474, 475, 476, 477 Elections  212, 288, 374 Elections, Judicial  373–386 El-Masri Case  107, 109, 110, 114 Energy Charter Treaty (“ect”)  302, 304 Enforcement of a commercial arbitral award  308, 310, 312, 315, 316, 317 England  255, 257, 263, 266, 267, 286, 294, 296, 340, 341, 355 Equality of the three Highest Courts in Austria  450 European Constitutional Courts  162 European Convention on Human Rights  79, 80, 83, 363 European Court of Human Rights  18, 32, 67, 108, 114, 128, 334, 363, 399 European Court of Justice  102, 155, 334, 359 European treaties  167 Expressly Provided Procedure for Selection of Chief Justice 2011  465 Expropriation  173, 305, 306, 307, 316, 437 Extraordinary Chambers in the Courts of Cambodia  324, 336

551

index Florida  375, 379 Free Exercise Clause  90, 93 Freedom  8, 17, 94, 100 Genesis of the Right to the Truth: the Inter-American Court of Human Rights’ Case Law  122 Georgia  375, 379, 380 Ghent Conference  20, 65, 67 Ghent  465, 466, 471, 473, 480, 481, 482 Global judicial ethics code  13, 465, 481, 482, 483 Good cause  478 Government policy  207, 208, 211, 212, 213, 215 Grounds for recusing a judge  224, 225, 226, 227 In civil procedure  224 In judicial courts  225 In criminal courts  224 Guide to Judicial Conduct  228, 230, 231 Guidelines Regarding Public Enquiries by Judges 2012  481 Hard cases  407 History of judicial independence  15, 16, 419, 420 Hong Kong  202, 206, 207, 208, 210, 212, 216 House of Lords Select Constitution Committee  398, 404, 405, 406 Human rights  18, 26, 40, 84, 85, 99, 107, 108, 123, 128, 129, 151, 185, 187, 188, 189, 196, 206, 274, 345, 357, 369, 363, 364, 365, 367, 368, 369, 397, 398, 401, 407, 431, 467, 474, 475 icc Arbitration  303, 304, 309, 311, 315 icc award  308, 311, 312, 314, 315, 316 icsid jurisdiction  302, 303, 304, 305, 306, 309, 311, 314, 315 Illinois  201, 374 Immigration  202, 211, 212 Impact of European court of human rights on Swiss law  363 Impartiality  224, 225, 226, 229, 373, 449 Impartiality, of judges  374 Implementation action  440 Importance of judicial independence  14, 15

Independence  224, 225, 226, 227 Independence of the judiciary  34, 137, 213, 488 Independence of the judiciary in the Fortis case (Belgium)  140 Independent arbitrator, impossibility of being  219 Influence of higher courts  429 Institutional structure  5, 20, 480 Inter-American Court for Human Rights  108, 109, 118, 119, 120, 122, 125, 126, 127, 128, 129, 130, 133, 334 International Bar Association  466, 468, 470 International Chamber of Commerce (“icc”)  303, 308, 356 International Conferences  xxxv, xxxvi International Congress on the Law of Civil Procedure  65 International Court of Justice  323, 330, 470 International Criminal Court  330 International Criminal Tribunal for Rwanda  332 International Criminal Tribunal for the former Yugoslav Republic  330 International Project of Judicial Independence  xxxiv, xxxvi Investment arbitration  302, 305, 306, 308, 310, 311, 312, 313, 314, 315, 316, 317 Investor-State settlement mechanisms (arbitration)  304, 312 Iowa for Freedom  384 Israel  293, 296 Israeli religious court system  90, 96 Italian Code of Public Contracts  441 it-Justice  69 jiwp Association Project  xxxv, xxxvi jiwp association  3, 7, 21, 70, 465, 466, 467, 483 Judge Hlophe  49–64 Judge’s right to be heard  57, 58, 59 Judges in Poland  218, 220 Judges on the Market of legal writings  221, 222 Judgments in Poland  218, 220, 222 Judicial accountability  374 Judicial and Judicious Review  182

552 Judicial appointments  33, 37, 45, 52, 138, 249, 275, 290, 322, 326, 330, 366, 375, 379, 397, 405, 412, 479, 493, 514 Judicial appointments criteria  375, 379 Judicial clarification  229, 230, 231 Judicial diversity  401, 404, 405 Judicial ethics  11, 293, 294, 295, 296, 297, 327, 482 Judicial independence, duty to uphold  403 Judicial independence criteria  85, 322 Judicial independence in China  419–441 Judicial independence in the New Era  430–431 Judicial independence  14, 301, 302, 314, 316, 317, 322, 364, 387, 394, 411, 412, 419, 420, 425, 445, 465, 467, 470, 472, 473, 474, 475, 480, 481, 483, 487 (Appendix I), 512 (Appendix II) Judicial Independence: The Contemporary Debate  xxxiv Judicial intervention in the law-making process  233, 234, 235 Judicial issues in South Africa  48, 49, 50 Judicial power  185, 188, 203, 213, 233, 236, 267, 412 Judicial precedent  220, 223, 224, 229, 230, 231, 232 Judicial Restraint  181 Judicial review  16, 17, 26, 181, 182, 188, 198 Judicial review in litigation  59, 60, 61 Judicial Role in Statutory Interpretation  196 Judicial salaries and bribery  322 Judicial Sanctions  69 Judicial Selection Commission  396, 399, 401, 402, 404 Judicial Service Commission  48, 49, 50 Judicial system reform  431 Jurisdictional stage  306 Jurisprudence of European Courts  84, 85 Kramer, Larry  378, 379 Lavendis, John  383 Law professors as practicing lawyers   218, 219 Lay membership, judicial selection by  410

index Legal autonomy  90, 97 Legal Profession and Judicial Independence  481 Legislation impacting on courts and court decisions  236 Levitt, Justin  386 Liberty  14, 20, 47, 89 Limits on Judges’ Consultations 2011   466, 479 Lisbon Treaty  100, 104, 105, 106, 477 Lord Chancellor  16, 18, 198, 296, 402–407 Louisiana  375, 383 Lucy, William  373 Massey Coal Company  382 Mediation  266, 390, 391, 437, 438 Merit  396, 402, 404, 405, 409 Merits stage  306 mfn clause  309 Minnesota  375, 376, 378, 380, 383 Missouri  375, 382 Missouri Plan  374 Model Code of Judicial Conduct (2011)   292, 327, 382, 384 Montana  375, 384 Montesquieu’s Separation of Powers  18 Montreal Declaration  465, 466, 467, 469, 470 Mt. Scopus International Standards of Judicial Independence  20, 21, 68, 254, 275, 466, 488 (Appendix I ) National Rapporteurs  468, 469, 517 Natural Justice and Fairness  144 Nemo judex in propria causa  145, 227 Nevada  375 New Delhi Code of Minimum Standards of Judicial Independence 1982  465, 466, 467, 469, 512 (Appendix II) New York  375, 379, 382 New York Convention  307, 308, 313, 316 Nobel Peace Prize  100 Normative safeguards  23, 24, 25 North Carolina  375, 379, 385 North Dakota  375, 379

index O’Donnell, Terrence  383 Objective circumstances to conclude on the partiality  224, 225 Ohio  375, 383 Online dispute resolution  478, 479 Online Judicial Practices  69 Online Justice or Online Dispute Resolution (odr)  482 Origin of Judicial Review  182 Palmer, Vernon Valentine  383 Parliamentary attempts to restrict courts’ jurisdiction  241 Parliamentary privilege  204, 213, 246 Parliamentary restructuring of courts  239, 247, 248, 249, 250 Partition of powers  220 Pennsylvania  375, 379 Polish legal system  217, 218 Political question  175, 195, 201 Practical experience of the professors  218, 219 Prima facie evidence  306 Principles of Judicial Ethics  293 Prisoners’ voting rights  399, 403, 407 Problems of religious autonomy  91, 92, 93, 94, 96, 97 Procedural guarantees of independence  223 Procedural legislation of the Russian Federation  224, 227, 228 Profession of the professors  218 Proposal for reform  431, 432, 433, 434, 435 Protecting the integrity of state courts  238, 239, 240, 241 Public law appeal  364 Public procurement sector  440 Public prosecutor  364, 366, 368 Quest of Justice  69 Rationemateriae test  309 Recognition of a commercial arbitral award  308–314 Recusal  31, 280, 384–388 Recusal of judges of the highest courts in Belgium  138 Recuse a judge from a case  32, 61, 138, 139, 140, 223, 224, 226, 280–291

553 Relationship adjustments between ruling parties  424, 425 Relationship between the Highest Courts in Austria, the  453 Relations Between Top National Courts and International and Supranational Courts 2011  474 Relationship between Truth Commissions and the Inter-American Court of Human Rights  125 Religious arbital courts  95, 96 Religious exemptions  90, 93, 94, 97 Religious Freedom Restoration Act  93 Repayment agreement  311, 312 Research Projects and Reports on Judicial Independence 1984–2005  465, 466 Res judicata  356, 440, 460, 462, 463 Retention money  303, 304 Right to the Truth in Case Law  119 Role of the law professor  217, 218, 219, 220 Role of the practicing lawyer  217, 219, 220 Role of the University in Continental legal tradition  218 Rule of law  xxxiv, 182–190, 233, 318, 319 Russian civil procedure  391, 393 Salini test  303, 309 Scope of judicial review  26, 27, 181 Security decisions  26, 27, 29 Self-governance of the Judiciary  40–43 Separation of Powers  10, 18, 21, 24, 157, 182–187, 189, 195, 201–205, 450 Setting aside of an Award  303, 308 Settlement agreement  311, 312 Seventh International Congress of Procedural Law  5, 466, 470 Sexual discrimination  208, 270 Sharman, Jeffrey M.  373 Silver, Andrew  381, 382, 385 Skaggs, Adam  381, 382, 384, 385 South African President Zuma  35, 53, 54, 55 South Carolina  374 Special Court for Sierra Leone  336, 337 Special judicial procedure  231 State Supreme Court (us)  379, 381, 384 Streit, Michael  384 Supervision of courts in China  424, 425

554 Supervisory jurisdiction  202, 243, 244, 315, 316 Supranational courts  12, 122, 329, 465, 365, 474, 475, 476, 477 Supremacy of Parliament  203, 204, 205 Supreme Court of the us  24, 377, 378, 379, 380, 424 Swiss Federal Court  12, 363, 364, 369, 459 Tensions between branches of government  26, 30 Ternus, Marsha  384 Terrorism and judicial review  26, 27, 28 Texas  22, 293, 375, 384 Texas code of judicial conduct  22, 293 Threat to liberal society  94, 95, 96 Transparency International  319 Tribal courts  90 Twelfth Congress of Comparative Law  466

index uk Supreme Court  23, 46, 293, 362, 404, 476 Umbrella clause  313 United Kingdom  26, 28, 44, 80, 99, 244, 284, 287, 404, 467, 479 United States  373, 374 United States challenges  33 Utah  375, 382 Values, legal  xxxv, 21, 23, 40, 214, 273, 302, 374, 420 Values social  xxxv, 94, 100, 149, 153, 196, 302, 374, 407, 472 Virginia  110, 111, 374 Webster, Paul  386 Wersal, George  376 West Virginia  375, 382, 385 Wiggins, Davis  384 Wisconsin  375, 385