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Building an Independent Judiciary: Process and Perceptions
Building an Independent Judiciary: Process and Perceptions
Does a Better Decade Lie Ahead for South Sudan?
Does a Better Decade Lie Ahead for South Sudan?
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.

Podcast / Africa

Does a Better Decade Lie Ahead for South Sudan?

This week on The Horn, Alan Boswell welcomes Dr. Luka Biong Deng Kuol, a South Sudanese former minister and academic, to reflect on South Sudan’s trajectory since achieving independence ten years ago and whether it can still change course toward a more stable future.

In July 2011, South Sudan gained independence with immense international support. Achieving statehood was seen by many as the end of an unstable coexistence with Sudan, but the bloody decade that followed is testament to the dangers and difficulties of state-building. 

Joining Alan Boswell this week to reflect on South Sudan’s troubled ten-year journey is Dr. Luka Biong Deng Kuol, Dean of Academic Affairs at the Africa Center for Strategic Studies and former civil servant of Southern Sudan and Sudan. Dr. Luka shares his thoughts on what led to the young country’s descent into a devastating civil war and why its two main antagonists, Salva Kiir and Riek Machar, remain locked in zero-sum politics. They discuss what it would take for a leadership change in South Sudan, what constitution would suit the country best, and whether prospects for a much-needed reset are realistic as elections loom on the horizon. 

Click here to listen on Apple Podcasts or Spotify.

For more information:

Contributors

Senior Analyst, South Sudan
alanboswell
Dr. Luka Biong Deng Kuol
Dean of Academic Affairs at the Africa Center for Strategic Studies