Building an Independent Judiciary: Process and Perceptions
Building an Independent Judiciary: Process and Perceptions
Toward a Common Set of Signals from the G20 about Russia’s War in Ukraine
Toward a Common Set of Signals from the G20 about Russia’s War in Ukraine
Louise Arbour Speech
Speech / Global

Building an Independent Judiciary: Process and Perceptions

I am delighted to have an opportunity to discuss with you today issues related to the proper functioning of the judiciary in a democracy. I welcome the increased attention that the role of justice and the judiciary is attracting internationally, after decades of over-emphasis on the legislative and executive branches of governance as the motors of democratic life.   

I believe this increased interest in the proper functioning of judicial systems is the product of the emphasis on the Rule of Law as a critical element of democratic governance. The Rule of Law has many features – particularly that everyone is equal before and under the law, and is entitled to its equal protection and equal benefit -- but today I want to speak about the interaction between the various branches of governance, and the importance of a professional and independent judicial system.

The challenge we face, and I believe it is acute today in Guatemala, is to move from general principles to applicable rules that will effectively promote and, if possible, guarantee the functioning of a competent and trustworthy judicial system. No one, to my knowledge, disputes the wisdom of the international standards, which are expressed in general terms referring to the independence and impartiality of judges. Article 10 of the UN Basic Principles on the Independence of the Judiciary (1985) provides that “Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law”. It prohibits discrimination in the selection process and provides that “Any method of judicial selection shall safeguard against judicial appointments for improper motives”.

Over the world, there are many different models of independent judicial systems, as they are the product of the evolution of norms that are specific to a particular legal system and to a country’s history. The first point I want to make is that notions of independence and impartiality have both an objective and a subjective component. The best constructed system on paper is not guaranteed to produce the legitimacy and trust that comes from the public’s perception of its integrity. And trust often comes more from actual practice than it does from formal legal requirements. Let me give you a concrete example. I was a judge in Canada for some fifteen years. I was appointed at the federal level first as a trial judge, then as a Court of Appeal judge and finally as one of the nine members of the Supreme Court of Canada. In light of this apparent progression it may surprise you that there is no formal process of promotion within the Canadian judiciary. In fact, judges appointed to any level of courts expect, for the most part, to spend their entire career in that position, until they retire at the mandatory age of 75.  And although higher court judges are usually appointed from the lower court benches, there are few such positions and no competitions to acquire them.

I will not bore you with a detailed analysis of the system of appointment of judges in Canada. Suffice it to say that on paper at least, it doesn’t offer many guarantees that the selection process will either be immune from political interference or appoint the people most qualified to hold judicial office. This is, in fact, particularly true at the highest level, whereby the appointment of judges at the Supreme Court level is essentially the decision of the Prime Minister, after a consultation process that is neither transparent nor extensive. In that sense you could say that in Canada the formal system of judicial selection does not offer safeguards against appointments for improper motives, as required by the International Basic Principles. Yet for the most part, appointments have been made on a non political basis – at least in the sense of political partisanship – and despite periodic calls for an improved process, there is no suggestion that this process has produced an unacceptable body of judges. Quite the opposite.

Why is it, you may ask, that a process offering so few guarantees has ended up working so well? You might even contrast it with the American system for appointing the nine members of the U.S. Supreme Court. On paper it is much more rigorous, requiring a public, intense scrutiny of candidates by Congress through the confirmation process. In practice, though, it has led to the perception of a selection process that is highly politicised, and which has seen the appointment of judges with actual, or at least ideological, political affiliations. In other words, processes only go so far in guaranteeing results.

I suggest that to understand the quality and acceptability of the process by which judges are appointed you have to go way beyond the formal legal requirements and understand the full context within which a country offers, or does not offer, guarantees of judicial competence and independence. These go well beyond the question of appointment procedures. They are linked to the length of the term of office, security of tenure during that term, the remuneration of judges, including pensions, the process for disqualification and removal of judges from office, and institutional guarantees of judicial independence related to the management of the courts, the assignment of cases and the proper funding of the judicial system.

So one cannot examine the process by which judges are selected without assessing this broader context. For example, the first prerequisite for the selection of competent and independent judges is that competent and independent candidates be interested in the job. This in turn depends on the way the judicial function is perceived in society. We see at play a circle that can be either vicious or virtuous: in a country where the judiciary is held in low esteem and perceived as incompetent or corrupt or both, it will be difficult to attract the kinds of judges that would, in time, transform that perception. If the opposite is true, and judges are held in high esteem and enjoy public trust and social prestige, better candidates will come forward for judicial appointment and the actual selection of one over the other will matter less.

This is all to say that the evolution of the judiciary in a country towards an ever increasing level of deserved legitimacy and credibility is a process that takes time, and that involves all aspects of judicial independence, and not only the process of appointment. It is linked not only to formal rules but to cultural traditions and perceptions. The roots upon which a corpus of qualified judges will emerge go back to the quality of legal education in a country. Do minority groups have access to that education so that they may qualify later for judicial function? For years this was a real issue for women who, in many countries, were excluded from the bench as they had been absent from the legal profession, and it’s still the case for many members of ethnic and cultural minorities who are underrepresented in higher education, including in law schools.

This is not a trivial observation. The selection of judges will only be as satisfactory as the pool of qualified candidates permits. Assuming then that such a pool exists, how is the selection among them best achieved? We must here examine three related questions: first, the substantive requirements of competence, independence and impartiality; second, the process of selection of candidates; and finally, whether the first two yield the appointment of the right judges, who are perceived as such by the public.

First, then, the substantive qualifications of judges. One should not underestimate the requirement of professional competence. I’ve alluded already to the quality of legal education. I should add that reputation for competence among peers is an important point of reference. Basic qualifications are generally required by law, such as having a law degree, having been a member of the legal profession for a certain number of years, and so forth. But it is more difficult to measure the professional qualities that allow some lawyers to stand out among their peers as exceptionally talented, productive, intellectually honest and incorruptible.  Those who appoint judges always claim to have chosen the most qualified person, but these qualities are hard to measure and demonstrate.

Litigants who come before the courts have the right to an independent and impartial tribunal.  Like professional competence, impartiality and independence are difficult to ascertain. Impartiality refers to the state of mind of the judge in relation to the particular case, or to the general issues that the case raises.  Independence goes beyond that. It contemplates also an institutional relationship that ensures the court does not depend on the whim of the legislative or executive branch of government. In my view a judge who would, for example, accept a bribe, yield to undue pressure, or rule in favour of a party for extra-judicial reasons lacks all three qualities: competence, impartiality and independence.

But the test for measuring all three is essentially one of perception, although not a purely subjective one. In other words, may the judge or tribunal reasonably be perceived as competent, impartial and independent? This, in turn, requires an assessment of the objective features of judicial independence and competence, some of which I mentioned earlier: the mode of appointment, security of tenure, the necessity to give public reasons for any decision and so forth.

Returning to the process of appointment of judges, let me make a few additional observations as I understand this issue is currently subject to considerable debate in Guatemala. My first comment is that the process of selection comes under more scrutiny and is more susceptible to politicisation when the tenure of appointed judges is relatively short, as it is for judicial appointments in Guatemala at the level of the highest courts. I have held two appointed positions for renewable fixed terms, first as the UN Chief Prosecutor for the ICTY and ICTR, where I was appointed by the UN Security Council for a four-year renewable term, and then as UN High Commissioner for Human Rights where I was elected by the UN General Assembly, also for a four-year renewable term. In neither case did I seek reappointment. In principle, I believe that re-appointment to an independent function is inconsistent with the objective indicia of independence upon which the public trust rests. Particularly in the judicial sphere, I think longer terms of service are vastly preferable, not only because they increase the reasonable perception of independence, but also because they provide a better environment in which to develop the expertise and experience that make judges better judges, especially if accompanied by excellent programs of continuing judicial education.

This is not to say that in a system where re-appointment is offered incumbents should not seek it. My point is that at the outset appointees should not be eligible for re-appointment.

Moreover, frequently recurring appointment opportunities inevitably invite more political interference. In November 2012 in Panama, the UN Special Rapporteur on the Independence of Judges and Lawyers held Regional Consultations on the independence of the judiciary in Latin America, where she remarked that in Guatemala, despite the creation of Nominating Commissions aiming to reduce political interference in the appointment of judges, watch dog groups say that these Commissions are also vulnerable to pressure from business groups and even organized crime. The public perception of the independence of the courts is likely to be negatively affected by the frequent spectacle of political campaigning for control of the process by which judges are appointed. And candidates, including judges wishing to seek re-appointment, may be inclined to behave in accordance with the political expectations of Nominating Commission members, rather than be guided solely by legal principles and impartial adjudication.

Secondly, political interest and pressure on appointments will inevitably increase when the courts are seen to be increasingly important players on divisive political issues. I don’t want to suggest here that the judges necessarily become political actors, but they are often depicted as such, then perceived as such, then chosen as such. Public interest in judicial appointments in Canada had increased considerably since the coming into force of the Canadian Charter of Rights and Freedoms in 1982, under which judges, as constitutional arbiters, have had to pronounce on issues such as abortion, mandatory retirement, assisted suicide, the death penalty in extradition cases and so on. Likewise throughout Latin America, courts have been increasingly engaged in the prosecution of past serious human rights violations, and will be ever more frequently called upon to take on powerful organised crime networks, in environments where societies are still polarised and powerful actors have important vested interests. This inevitably puts the spotlight on often immature judicial systems and invites interference, including in the selection of judges.

Formal responses are welcome but in themselves not sufficient. The creation of inclusive, transparent nominating processes is an important step in the right direction. But when the stakes are high and interference has long been tolerated, it’s hard to eradicate it. Political competition for a seat on a Nominating Commission is a very disconcerting phenomenon, more so when it is intense and often unfair. Like the appointment of judges themselves, membership in the Commissions might better be for longer terms with representatives of different constituencies chosen primarily for their integrity and if possible selected by consensus, rather than election, in their own constituencies.

As long as the ultimate appointments are made by Congress, political considerations will obviously prevail.  But to push back the politics all the way down to the composition of Nominating Commissions is to entrench the perception of lack of independence of the courts, with the consequent lack of legitimacy of the process and undermining of the judiciary itself.

Additional formal requirements, such as Commissions working in open sessions, referring to objective criteria of evaluation of candidates and giving cogent reasons for their recommendations are all steps in the right direction. But they may never be enough to eradicate a culture of expectation that judges will not be impartial and independent, and that the best strategy is not to seek independent ones, but partisan supporters on one’s side.

In short, the construction of a competent, independent, credible and trustworthy judicial system, like the consolidation of democracy itself, is a long process. Proper formal institutions are necessary, but not enough. The most difficult part is to transform a culture accustomed to tolerating corruption, impunity and mediocrity. Along with institutional adjustments, the work of competent, courageous, progressive and independent judges and lawyers will go a long way to giving countries like Guatemala the justice system they deserve.

Thank you for your attention.

Members of the police stand in front of banners of the G20 summit near a venue for the G20 Finance Ministers Meeting in Nusa Dua on Indonesia's resort island of Bali, on July 14, 2022. Sonny Tumbelaka/Pool via REUTERS
Commentary / Global

Toward a Common Set of Signals from the G20 about Russia’s War in Ukraine

The G20 countries’ positions on the war in Ukraine contrast starkly, yet the conflict raises issues of global concern – economic shocks and nuclear risks – that the leaders cannot pass over in silence.

When the Group of Twenty (G20) leaders gather in Bali, Indonesia, on 15 November, one head of state who belongs to the Group will be notable by his absence. Russian President Vladimir Putin has decided not to attend the event. This news will be a relief for Western participants, who hardly want to share photo opportunities with Putin while he pursues his war in Ukraine. The Kremlin’s foreign minister, Sergei Lavrov, will be in Bali, but he may not be relishing the prospect. Lavrov walked out of a G20 foreign ministers’ meeting in July after his Western counterparts accused Russia of sparking the global food price crisis by invading its grain-producing neighbour.

Putin’s absence will not relieve the leaders who go to Bali of the challenge of how to address the war. The G20 is primarily an economic coordination mechanism, which was thrust into the limelight during the global financial crisis in 2008. Unlike the G7, which brings together like-minded Western countries with shared political interests, the G20 encompasses geopolitical rivals – the U.S. and China foremost among them – that are not apt to adopt strong common positions on international affairs. Yet Russia’s assault on Ukraine raises issues of global concern, including the widespread food and energy price shocks and the risks of nuclear weapons use, that the world’s most powerful politicians cannot pass over in silence.

The G20 meeting is, therefore, an opportunity for leaders to signal common positions about the war. Their primary focus should be on concrete commitments by the G20 countries to help poorer ones navigate economic turmoil. But the powers present in Bali could also use the occasion to underscore that they all expect Russia to refrain from nuclear use, in word as well as deed. Ideally, they would be as clear as possible that if Moscow does cross the nuclear threshold, it will face consequences not only from the West, but globally. A joint statement condemning Russia’s prosecution of the war or setting out potential peace terms will likely be impossible, given G20 members’ widely divergent positions on the war. But if G20 members can find common ground on economic issues and the nuclear taboo, the Bali summit will be a worthwhile diplomatic endeavour.

Diverse Ukraine Policies

The G20 members’ positions on the war differ starkly. The U.S. and most of its allies in the Group have imposed sanctions on Moscow and voted to condemn the invasion in the UN General Assembly. Most of the other members have at least condemned Russia’s aggression and illegal efforts to annex Ukrainian territory at the UN, but not resorted to sanctions (see map). Yet three weighty non-Western G20 members – China, India and South Africa – have not only declined to place sanctions on Russia but also abstained in UN votes on the war.

This map shows which G20 members have sanctioned Russia, and which voted to condemn its illegal "annexations" in Ukraine at the UN in October.

Various non-Western members of the G20 have at times tried to establish a diplomatic role in the war, although the results have mainly been negligible. South Africa attempted to take a lead at the UN in March by tabling a General Assembly resolution on humanitarian assistance to Ukraine. Western and Ukrainian diplomats rejected the draft out of hand because it made no reference to Moscow’s responsibility for the war (in contrast to an alternative UN text worked up by France and Mexico), although South African officials insisted to Crisis Group that theirs was a good-faith initiative to bolster multilateral cooperation.

Indonesian President Joko Widodo visited both Kyiv and Moscow over the summer, promising to facilitate communication between the warring capitals. Many observers suspected that his main concern was to make sure that the war would not stop the G20 summit from going ahead. Indonesia has raised the possibility of Ukrainian President Volodymyr Zelenskyy attending the summit, although Kyiv has indicated he will most likely only intervene via video link.

Other G20 members have also dipped their toes in Ukraine diplomacy. Mexico surprised and confused UN officials at September’s high-level UN General Assembly week by tabling a proposal for the Pope, the UN secretary-general and Indian Prime Minister Narendra Modi to lead a ceasefire effort. This idea has not taken off to date. There has also been a sporadic flow of speculation among Western commentators that India – which has increased trade with Russia since the February assault – could eventually prove a useful facilitator of Russian-Ukrainian diplomacy, and Modi urged President Putin to take a “path to peace” at September’s Shanghai Cooperation Organisation summit.

In contrast to these fledgling and tentative peace efforts, Türkiye’s President Recep Tayyip Erdoğan has emerged as one of the main diplomatic actors in the crisis. Türkiye hosted early, fruitless Russian-Ukrainian peace talks, but had success when it worked with the UN over the summer to broker the Black Sea grain deal. This deal permitted Ukraine to export its harvest by sea without Russian military interference. Türkiye and another G20 member, Saudi Arabia, also facilitated a sizeable prisoner swap – involving some 215 Ukrainians and 55 Russians – in September. Behind closed doors, G20 participants will surely probe Erdoğan as to whether his frequent interlocutor Putin is ready to compromise. But there is no sign in advance of the Bali summit that Ankara sees a breakthrough coming.

 

For the U.S. and Ukraine’s other allies, Beijing’s view of the war has been a constant source of anxiety.

But, however much attention Erdoğan garners in Bali, leaders may focus even more closely on what China’s President Xi Jinping has to say. For the U.S. and Ukraine’s other allies, Beijing’s view of the war has been a constant source of anxiety since February. In recent months, Western observers believe they have seen increasing signs of frustration in China with the course of the conflict. Beijing has indicated its concern that Moscow’s nuclear sabre-rattling, bad enough in itself, might be more than dangerous talk. This concern was heightened by the Kremlin’s vague, erroneous intimations that Ukraine, not Russia, wants to raise the nuclear stakes with a “dirty bomb”. Xi articulated these issues most clearly in a joint statement with German Chancellor Olaf Scholz opposing the “threat or use of nuclear weapons” in Ukraine.

Points of Agreement

While G20 members have, therefore, no shortage of opinions about Russia’s war in Ukraine, it is difficult to see how they could reconcile their divergent views in Bali. It is hard, for example, to square Mexico’s advocacy for an early ceasefire (which Brazil and Argentina also advocated for at the UN in September) with Western powers’ worries that Moscow could use a pause in hostilities to consolidate control over parts of Ukraine even as it rearms and repositions for the next phase of conflict.

Rather than focus on the specifics of how to end the war, G20 leaders may be better advised to identify broad areas of agreement about how to contain the war and its fallout. The most obvious would be for those G20 leaders who are in Bali to endorse the Xi-Scholz condemnation of nuclear threats and nuclear use. Alternatively, or additionally, they could reiterate the basic principle that a “nuclear war cannot be won and must never be fought”, which the five nuclear weapons states (the UK, China, France, Russia and the U.S.) affirmed in a statement to the UN in January. Such a declaration might be complicated by the G20’s incompatible positions on non-proliferation issues (Brazil, for example, has lobbied for the Treaty on the Prohibition of Nuclear Weapons, whereas India is not even a member of the Non-Proliferation Treaty). Given Russia’s recurrent allusions to nuclear use in Ukraine, however, the leaders should at least be able to agree they are opposed to nuclear threats and nuclear war.

The goal of such a declaration, however minimal or vague, would be to signal to Moscow that it will face global diplomatic and other penalties, rather than just consequences from the West, if its nuclear rhetoric turns to action in any way. Russia has shown some interest in how its moves in Ukraine – such as its agreement to the Black Sea grain deal – are seen in the non-Western world. G20 leaders are not likely to spell out in concrete terms what steps they would take if Russia does cross the nuclear threshold – indeed, it might be better they do not try to be too explicit, as doing so might only highlight their differences. But some sort of common signalling, especially one that by definition has both U.S. and Chinese buy-in, could help strengthen the nuclear taboo.

G20 members can offer common support to efforts to reduce the global economic damage the conflict is doing.

Turning to the war’s impact, G20 members can offer common support to efforts to reduce the global economic damage the conflict is doing. They could start by making a statement in support of the Black Sea grain deal (which is up for renewal by Russia and Ukraine on 19 November) and calling for this deal, which now has to be reaffirmed every 120 days, to continue indefinitely until hostilities cease. Such a statement would be a fillip not only for President Erdoğan, but also for UN officials working on implementing the agreement, which Russia threatened to quit in October after a Ukrainian attack on its navy.

More broadly, G20 leaders can use the Bali summit to help prop up the teetering global economy, much as their predecessors did in 2008-2009. Potential priorities include pushing multilateral development banks to boost lending to poor countries to handle economic challenges that could foment political instability. In 2021, G20 members committed to support liquidity in the global economy by making available to poor countries $100 billion in International Monetary Fund Special Drawing Rights (a reserve asset that Crisis Group discussed in detail in a briefing prior to the 2022 G7 meeting). They have been slow to follow through with this pledge, and they need to pick up the pace as the international economic picture gets bleaker.

Given its origins and membership, the G20 has greater credibility as an economic crisis management mechanism than as a security forum. Its actions on the global economy will carry more weight than its members’ political statements about Ukraine. Yet the last year has made it clear that global economic affairs cannot be insulated from security shocks, and big powers must tend to both. At the same time, Russia’s nuclear menacing amid the conflict it is waging in Ukraine is simply too big an issue to ignore. The Bali summit is an opportunity for the leading Western and non-Western powers to at least articulate their shared interest in not letting the war escalate out of all control.

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