Tag Archives: Judicial Independence

Dawn Oliver: Does treating the system of justice as a public service have implications for the rule of law and judicial independence?

oliverIf you asked a second year LLB student, or even a professor of public law or a legal practitioner, ‘what are the most fundamental functions of judges and the system of justice?’ you would probably get ‘doing justice to all without fear or favour’ and ‘upholding the rule of law’ among the most common answers. And if you asked ‘what are the most important ways in which performance of these functions is secured?’  you would expect to get ‘independence of the judiciary’ among the answers.

But if you visit the websites of the Ministry of Justice, the Lord Chancellor and Secretary of State for Justice, you will find no mention of these matters. These websites are mostly focused on the cost of legal aid, and criminal justice. And this notwithstanding the fact that the Constitutional Reform Act 2005 – also not mentioned on the websites – specifically preserves the Lord Chancellor’s role in relation to the rule of law (section 1(b)) and requires the Lord Chancellor and other Ministers to uphold the continued independence of the judiciary (section 3(1)). Why are judicial independence and the rule of law not mentioned? I suggest that it is because another understanding of the nature of the system of justice has gained currency in political and bureaucratic circles, an understanding that can do great damage to the rule of law.

The system of justice has come to be regarded by many as a public service like any other – and even only that. The title of Her Majesty’s Courts and Tribunals Service illustrates the point. But the trend goes back some thirty years. In 1986 a JUSTICE report stated that: ‘The courts … should be seen to provide a public service, as much as … the National Health Service’. (And presumably just as it would be inappropriate for the Secretary of State for Health to seek to pressurise a consultant to treat a patient in a particular way, so it would be inappropriate for the Lord Chancellor and other Ministers to ‘seek to influence particular judicial decisions through any special access to the judiciary’ (Constitutional Reform Act 2005, section 3(5)): by implication there is nothing exceptionally ‘constitutional’ or fundamental about the independence of the judiciary as compared to that of doctors.)

Since the promotion of the ‘Citizen’s Charter’ policy in 1991 the courts publish ‘charters’ for parties, witnesses and other, laying down ‘service standards’ as to delay, information, and how to complain about administration. Of course these matters are aspects of ‘service’ and do not touch upon the substance of judging, judicial independence and the rule of law. But for those who do not understand the rule of law and why it is important, it is only a small step to regarding judges themselves as only providers of services to litigants appearing before them, rather than as performers of an important constitutional role on which much of the system of government depends. I have heard it said at a Chatham House rule seminar by a senior civil servant that the role of the judiciary is not particularly special or different from the roles of doctors or nuclear regulators or anyone else involved in the running of public services.

The fundamental importance of justice, the rule of law and judicial independence are undermined by treating the system of justice as mainly just a public service: the system is different in important respects. The maintenance of the rule of law is of a different order of importance from the provision of other public services. The government and other public bodies are not ‘customers’ of, for instance, the NHS. They are often ‘customers’ of the system of justice, especially in judicial review and other public law cases and in criminal prosecutions. They may have self-serving or personal (not public) interests in the outcomes of cases, e.g. the avoidance of political embarrassment, gaining votes,  losing votes, loss of reputation, frustration in the pursuit of their favoured policies, loss of authority if they lose a case.

This ‘public service’ perspective puts some proposals for changes to the system of justice in a new light. The availability to critics of government of recourse to the courts and the independence of the judiciary can be a nuisance. What might a government do if it wanted to avoid litigation and embarrassment and enable it to get away with illegality? Just as, when developing policy in relation to the NHS, it can seek to limit access to the service (e.g. to drugs) and costs (e.g. by cutting staff, closing hospitals), so to it can do this in relation to the system of justice – but with startling consequences for the rule of law.  It could limit access to justice and deprive the courts of jurisdiction over unwelcome cases by reducing the limitation period for claiming judicial review and limiting the standing of charitable or voluntary sector bodies; it could find ways of weakening the ability of unpopular individuals (e.g. illegal immigrants, asylum seekers, convicted criminals) to pursue their claims in court by limiting their access to legal advice and representation; it could secure that unpopular parties (especially defendants in criminal cases) are less likely to win their cases, by depriving them of competent, reasonably paid representation; it could undermine the quality and thus the authority of the judiciary, deterring able practitioners from practice leading to judicial office by drastically reducing their earning capacity.

I do not allege that any of these are the conscious intentions of the government. But the overall effect of such changes, based in part on assumptions that the system of justice is just another public service, may be to undermine the independence of the judiciary, broadly understood, and the rule of law. Thinking of the system as a service obscures its special constitutional importance.

Dawn Oliver is an Emeritus Professor of Public Law at the Faculty of Laws, University College London.

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Derek O’Brien: Judicial Independence in the Caribbean and Petitions Pursuant to Section 4 Judicial Committee Act

The case of Chief Justice of the Cayman Islands v The Governor and Judicial Legal Services Commission ([2012] UKPC 39) is, arguably, at least as interesting for the questions that the Judicial Committee of the Privy Council (JCPC) did not answer as for the ones that it did and I will, therefore, address both in this blog. I will begin with a brief overview of the unanswered questions, which help to explain the context in which the questions that the Board did answer arose.

The first relates to the extension of the appointment of a Justice of the Grand Court of the Cayman Islands. This is governed by s.96 of the Cayman Islands Constitution, which provides that the Governor may permit a judge of the Grand Court who has reached the age of 65 to continue in office until he has attained such later age, not exceeding the age of 70 years, as agreed between the judge concerned and the Governor, following the recommendation of the Judicial and Legal Services Commission (JLSC). The JLSC is an independent body comprising one ex offico member, being the President of the Court of Appeal, and seven other members appointed by the Governor including: a chairman and one other member, appointed in consultation with the Premier and Leader of the Opposition; a senior judge with recent knowledge of Cayman’s courts; two senior judges from another Commonwealth country or Ireland; and two lawyers qualified to practice in the Cayman Islands. Members of the Legislative Assembly and candidates for elections are disqualified from membership of the JLSC.

Justice Henderson, a Justice of the Grand Court, whose appointment expired in June 2011, by which time he would have been older than 65 (his appointment having preceded the coming into force of the 2009 Constitution), had asked the Governor in December 2010 for an extension of his appointment. The Governor, in turn, sought the advice of the JLSC, which recommended that there was no basis upon which it was necessary in the interests of the administration of justice for Justice Henderson to continue in office beyond the age of retirement, and the Governor duly notified him that he would not be extending his appointment.  The Chief Justice objected to this decision, arguing that the JLSC had wrongly approached the question of the extension of Justice Henderson’s  appointment on the basis that it required ‘exceptional circumstances’ before an extension would be granted and, as a result, had reached an incorrect interpretation of s.96, bearing in mind the way that the section was expressed and the need to preserve judicial independence so that Justices of the Grand Court enjoyed security of tenure free from discretionary intrusion by the Executive.

The second question relates to the power of the Governor, acting in accordance with the advice of the JLSC, to exercise disciplinary control over judges. In early 2012, the JLSC published a Code of Conduct and a Complaints Procedure in relation to the Cayman Islands judiciary, which permits the JLSC after it has investigated a complaint against a judge to advise the Governor that the case calls for the exercise of such powers of disciplinary control short of removal from office as are conferred upon the Governor by s106 (1) of the Constitution, which empowers the Governor to exercise disciplinary control over the judiciary. The Chief Justice objected to this aspect of the Complaints Procedure on the ground that the Constitution did not permit the Governor to ‘impose disciplinary sanctions short of removal.’ I will return to both of these questions later, but first I must sketch out the background to the questions that were answered by the Board.

Ordinarily, it would be expected that in the first instance the two questions outlined above would have to be answered in the Grand Court of the Cayman Islands by way of judicial review proceedings. The Chief Justice, however, instead petitioned Her Majesty to refer the two questions directly to the JCPC for advice, which she did pursuant to pursuant to s.4 of the Judicial Committee Act 1833, which provides that:

 “It shall be lawful for his Majesty to refer to the …judicial committee for hearing or consideration any such other matters whatsoever as his majesty shall think fit; and such committee shall thereupon hear or consider the same, and shall advise his Majesty thereon in manner aforesaid.”

The Governor having objected to the substantive questions raised in the Petition being dealt with by the JCPC before they had been considered by the Grand Court of the Cayman Islands, the JCPC was obliged to consider whether  it was open to it to decline to rule on issues raised in a Petition referred to it by the Monarch and, if so, the circumstances in which it would be appropriate for it to do so?

In answer to the first of these questions the Board concluded that in the absence of any clear authority on the point it was open in principle to the Board to advise that it was inappropriate to provide substantive answers to the issues raised in a s.4 Petition, if it considered that this was the right course to take. Not only  would it be unattractive for a tribunal to be precluded by law from answering a question referred to it in terms which it considers to be right, but it was also highly unlikely that s.4 was intended to preclude the Board from considering this very issue.

This still left the question of whether this was the right course to take in the instant case and in the Board’s view it was because it would be inappropriate, in the absence of special factors, to consider issues raised in a s.4 petition when, as here, those issues could be raised in the first instance by way of ordinary proceedings in the courts of the territory in which the issues arose. This is, in part, because in a tiered court system the conclusions and reasonings of a higher tier court are likely to be better than that of a lower tier court, as the arguments of the parties tend to become refined and improved as the case progresses up the system, and the judges in a higher tier court benefit from the reasoning of the lower tier courts. It is also in part because respect for the courts of the territory concerned requires that they should have the opportunity to express a view before the JCPC is seised of the case.

But were there any special factors in the instant case, which might justify the questions raised by the petition being considered substantively by the JCPC?  In the Board’s view there were none. The Board was not persuaded by the Chief Justice’s argument that no permanent judge of the Grand Court could deal with the issues raised by the petition because they all supported the position of the Chief Justice and, besides, had an interest in the outcome. As the Board pointed out, it was open to the Governor to appoint a temporary judge under s.97 of the Constitution to hear the judicial review application; the Governor having made it clear that in such a case he would ask the Lord Chief Justice of England and Wales to nominate a temporary judge for that purpose. The Board also rejected the Chief Justice’s other arguments, namely: that it would be difficult to find a suitable Court of Appeal panel; that the issues raised by the Petition were of such high constitutional importance that they ought to dealt with by the Board; that the Board ought to give weight to the wishes of the Chief Justice to have the Petition determined by the Board, and that it would save time and costs to do so. In the Board’s view, the fact that the matters raised were of high constitutional importance only reinforced their conclusion that they ought to be dealt with, initially, by the Grand Court; and whilst weight must be given to the Chief Justice’s wishes, this was counterbalanced by the fact that the Governor did not wish the Board to rule substantively on the Petition.

All of this means that the two substantive questions raised by the Petition will now have to be considered in the first instance by the Grand Court. In dealing with the first of these questions the Grand Court may wish to have regard to the constitutional position in other countries in the Commonwealth Caribbean.  In most of these there is simply no possibility of extending a judge’s appointment once they have reached retirement age save for example, for the purposes of delivering a judgment in proceedings that have already begun. This is presumably to avoid the incentive that the prospect of such an extension might offer to judges to hand down judgments that favour the government. However, in those few countries in which an extension of a judge’s appointment is permitted by the Constitution – The Bahamas, Barbados, Belize and the member states of the OECS (Antigua, Dominica, Grenada, St Lucia, St Kitts and St Vincent) – it is notable that there is considerably more political input than is contemplated by the provisions of the Cayman Constitution to which the Chief Justice objected . Thus, in the Bahamas and Barbados, decisions about extending a judge’s appointment are taken more or less exclusively by the Prime Minister. Though the Prime Minister is required to consult with the Leader of the Opposition this is usually no more than a formality. In Belize, decisions about the extension of the Chief Justice’s appointment are taken by the Prime Minister after consultation with the Leader of the Opposition, and in the case of the other judges extensions are granted upon the advice of the JLSC, but require the concurrence of the Prime Minister after consultation with the Leader of the Opposition. Amongst the OECS countries the power to extend a judge’s appointment ostensibly lies with the JLSC, but the JLSC can only act with the concurrence of the Heads of Government of all the member states. Viewed from a comparative perspective then the position under the Cayman Constitution, where the extension of a judge’s appointment must have been recommended by the JLSC, arguably affords considerably more protection against political manipulation than is afforded in those neighboring countries that permit extensive Prime Ministerial input into decisions about the extension of a judge’s appointment.

The Chief Justice’s objection to the Governor’s powers to impose disciplinary sanctions upon a judge short of removal, however, looks at first glance much stronger from a comparative perspective, since such a power does not exist in any other Commonwealth Caribbean country. The closest parallel is, possibly, Guyana where a judge, who has persistently failed to give written or oral decisions and reasons for the decisions within the period prescribed by the Time Limit for Judicial Decisions Act 2009, may be notified that if he persists in his default action may be taken to remove him from office. However, it is arguable that at the time the independence constitutions of these countries were drafted there was a quite different understanding of the concept of judicial accountability and that they are not, therefore, the best guide to current practice.

If the Grand Court looks outside the Commonwealth Caribbean, however, it will see that a power to discipline judges short of removal from office exists in a number of common law countries, such as the United States, Canada and the United Kingdom. It might also note, however, that in these countries the disciplinary process short of removal is kept very much in-house, being administered entirely by the judiciary. This, at least, addresses the objection, based on the principle of the separation of powers, that the power to impose sanctions short of removal should not be vested in someone like the Governor, who is the Head of the Executive branch. But this is not the only possible objection to the existence of such a power, which has also been criticised by some for having a chilling effect on the capacity of judges to render impartial justice because it invites dissatisfied litigants to harass judges who rule against them (Irving R Kaufman, ‘The Essence of Judicial Independence,’ Columbia Law Review, Vol.80, No.4 671-701).

It remains to be seen whether the Chief Justice’s objections are upheld by the Grand Court. It seems likely, however, based on constitutional practice elsewhere in the Commonwealth Caribbean, that the Grand Court will not regard the involvement of the Governor in decisions about a the extension of a judge’s appointment as fatal. Moreover, while there may be principled objections to the imposition of sanctions upon judges short of removal, precedents for the existence of such a power can be found in a number of other jurisdictions, including the UK.

Derek O’Brien is Principal Lecturer, Law School, Oxford Brookes University.

Suggested citation: D. O’Brien, ‘Judicial Independence in the Caribbean and Petitions Pursuant to Section 4 Judicial Committee Act’,  UK Const. L. Blog (20th November 2012) (available at http://ukconstitutionallaw.org).

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Anitta Hipper: In Hungary’s Footsteps: Different Victor, Same Strategy

On January 1, 2012 with an amended Constitution in place, a once praised EU accession candidate, Hungary, proved that rule of law and consolidated judicial institutions are not at all irreversible. A new shift of power allowed Viktor Orbán, the Hungarian Prime Minister and the FIDESZ government to silence the Hungarian Constitutional Court, one of the strongest and most active Courts in Central and Eastern Europe.

It does not come as surprise, when Romania, considered by EU officials a laggard in fulfilling EU’s conditions for membership, goes along the same path as Hungary, by depriving the Romanian Constitutional Court of its powers. Unlike Hungary, which was considered a role model in Central and Eastern Europe due to its independent and efficient judiciary, Romania remained a concern for the EU despite considerable progress in reforming its judiciary as its political system is plagued by a chronic lack of consensus, with personalized institutional appointments and a judiciary that was not allowed to reach the same level of independency from the executive as in Hungary. Furthermore, skeptics of Romania’s readiness to join the EU both from the political praxis and academia were proven right when Monica Macovei, a disputed Minister of Justice at home, but considered a reformist force by Brussels, was dismissed from her office after the country joined EU in 2007.

Since Romania’s application for EU membership on June 1995, the judiciary suffered from continuous institutional redesign and personnel change according to the interests of successive governments. An overly rapid legislative process relied upon a ‘copy and paste’ method of transplanting Western legislative and institutional models and complex reform packages into the Romanian legal system.  These were adopted by subsequent governments in a hasty manner, using votes of confidence and emergency ordinances.  This eliminated the possibility of critical discussion and limited the chances of building political consensus over the quality of the reforms.

The instrumentalization and politization of the judiciary is not a novelty in Romania, which has remained trapped in this legacy since Communism. In the current political crisis, rule of law institutions are kept hostage in order to prepare the political battle between the Prime Minister Ponta and the now suspended President Traian Basescu. The tense relationship between the Prime-Minister and the President Basescu has been repeatedly put to the test due to Romania’s unclear semi-presidential system and Basescu’s desire to be an ‘active’ president.  This escalated into an open conflict on 27 June 2012, when the Romanian Constitutional Court was called to decide if the President or the Prime Minister has the right to represent Romania at the European Council’s meetings. The RCC decided in favor of President Basescu. Prime Minister Ponta’s accusations that President Basescu had overstepped his powers and influenced the judiciary triggered a vote in the Parliament in which the leftist Social Liberal Union (USL) succeeded in suspending the President and requiring a referendum to be held on 29 July 2012. According to Article 96 (1), the Chamber of Deputies and the Senate may decide the impeachment of the President of Romania for high treason, in a joint session, based on the votes of at least 2/3 of the number of deputies and senators (Romanian Constitution 2003). In the vote on President Basescu, the measure of impeachment was overwelmingly decided with 256 of the votes for and 114 against.

According to Article 95, the president may be suspended only after consultation of the Constitutional Court (RCC). The RCC’s consultation role has been changed from a simple advisory one in 2010 (due to an amendment to Article 95 proposed by Dan Sova, a Social Democrat senator) into an obligatory consultation. Accordingly, the RCC’s consultation on the constitutionality of the Parliament’s law and ordinances transformed the RCC into a last institutional filter on the decision of the impeachment of the President. The amendments envisaged by USL intended to remove this filter by depriving the RCC of its right to rule on the constitutionality of the Parliament’s decisions and amended through an emergency ordinance (EO 38/4 July 2012) on 5 July 2012 the Law on the organization and functioning of the Constitutional Court (Law 47/1992).

While according to the Constitution, amendments to complex and fundamental laws such as the Law on the organization and functioning of the Constitutional Court are prohibited from being passed through emergency of ordinance, the USL has succeeded in limiting the independence of the rule of law through several measures:

1. The replacement of the People’s Advocate Gheorge Iancu (the Ombudsman) with a former counselor of the president Iliescu, Valer Dorneanu. The Romanian Ombudsman acts as an institutional filter that could stop the emergency of ordinance to impeach the president, as he has the right to notify the Constitutional Court to adjudicate on the constitutionality of laws of the government before their promulgation by the Parliament (Art. 146a Romanian Constitution 2003);

2. The replacement of the President of the Senate, Vasile Blaga (National Liberal Party) with Crin Antonescu. According to Art. 98 (1), the president of the Senate serves at the interim President (Constitution of Romania 2003). Hence through the successful suspension of President Basescu, and the replacement of Blaga, as of July 3rd 2012 Romania has a new interim president, the President of Senate, Crin Antonescu.

3. The replacement of Roberta Anastase, the President of the Chamber of Deputies.

4. The Romania’s National Ethics Committee has been disolved, while still debating charges of plagiarism against Prime Minister Ponta. Ponta has been accused of plagiarism  by a scientific journal, which claimed that more than half of his PhD thesis consists of copied pasted work.

Further, the removal of President Basescu occurred through an emergency ordinance, which changed Art. 10 of the Law 3/2000 on the referendum law, and loosened the impeachment procedures of the president. The previous provision of half plus one of all voters registered on permanent electoral lists has been changed to half plus one of those who are voting on the referendum day set on July 29, 2012 to be sufficient for a valid referendum.

On July 10, 2012 the RCC declared the decision  to impeach the president constitutional, but maintained the provision that half plus one of all registered voters on electoral lists (around 9 million voters) as valid, supporting the previous position, opening a gate for Basescu on July 29 2012 to become reelected. The RCC, while admitting the constitutionality of the removal of both presidents of the Parliament, Blaga and Anastase, defended its right to decide upon the constitutionality of the Parliament’s laws and ordinances by stating that “the legislative solution that excludes the Parliament’s decisions from the constitutional control and impacts on values and constitutional principles is unconstitutional”.

Is Romania following in Hungary’s footsteps?  According to Prof. Scheppele, as Ponta did not take over the presidency and the RCC yet, as opposed to Hungary, where the Constitution has been already rewritten and the institutions silenced, there is still a chance that the RCC will survive these attacks. There is no doubt, however, about the speed of the political crisis and the fact that the USL’s legislative proposals are severe violations of the Constitution. On the other side, the increasingly unpopular President Basescu considered an active veto-player in political battles is not at all uninvolved in the political crisis and in the fight over the institutions. The call for normality intensifies, as Romanian experts argue that the political struggle between the government and the opposition is causing massive damage to the quality of Romanian democracy and its international credibility as the constant institutional redesign and misuse of the judicial institutions for political purposes continues.

Anitta Hipper is a PhD candidate at the International Relations Department, University of Freiburg. 

A version of this post originally appeared in the Verfassungsblog, and it is reposted here with thanks. 

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