Judicial Independence: Purposes And Threats
JUDICIAL INDEPENDENCE: PURPOSES AND THREATS
ADDRESS BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
TO THE 7TH WORLDWIDE COMMON LAW JUDICIAL CONFERENCE
30 APRIL 2007, LONDON
The first of these Conferences that I attended was in Vancouver in 2001. It was held in conjunction with a conference organised by the judiciary of British Colombia to commemorate the 300th anniversary of the Act of Settlement. With the full advantage of hindsight, that 1701 legislation was a momentous step in constitutional history, entirely worthy of the major commemoration in Vancouver.
After the traumas associated with the Stuart Kings, the Act of Settlement recognised that the independence and impartiality of the judiciary could not depend simply on the personal integrity and resilience of individual judges. It was necessary for independence to be institutionalised.
The Act of Settlement created, for the first time, the basis for judicial security of tenure. It was soon reinforced by legislation guaranteeing remuneration. These statutes institutionalised judicial independence in a form hitherto unknown. They continue to serve as the foundational principles for the administration of justice in all common law jurisdictions.
Each nation has developed its own structure for maintaining judicial independence. These are sometimes constitutional, by a mixture of express language and implication (such as in the United States and Australia), or almost entirely by means of implication (as in Israel). In other nations, express recognition is contained in the form of a statute, which is theoretically capable of amendment but which has such a high degree of acceptance that its amendment is inconceivable. Accordingly, as has so often been the case in the development of British constitutional law, a mere statute acquires constitutional force. The recent United Kingdom Constitutional Reform Act 2005 appears to me to be of this character.
INTERNATIONAL RECOGNITION
The principles of judicial independence have received widespread recognition, indeed frequent reiteration, in a wide range of international instruments, both of a universal and a regional character. Perhaps the most well-known and basic model is Article 10 of the Universal Declaration of Human Rights (1948), which was expanded in Article 14 of the International Covenant on Civil and Political Rights (1966). Each provision proclaims that everyone is entitled to a fair and public hearing by a competent, independent and impartial tribunal. This principle received considerable elaboration in the United Nations Basic Principles on the Independence of the Judiciary (1985).
The basic principles, at different levels of elaboration, have been reiterated on numerous occasions by countless Bar Associations, Law Societies and meetings of judges, who have produced a range of documents variously called Resolutions, Declarations, Principles, Standards and Statements. Often they carry the name of the place at which the relevant meeting occurred. This geographic pot pourri includes Syracuse, Tokyo, New Delhi, Montreal, Bangalore and Beijing. There is no need to add to this list. However, as we are now gathered in the place where the Parliament enacted the original Act of Settlement it would, but for the surfeit of such documentation that already exists, be entirely appropriate to do so.
A useful compilation of the relevant principles of institutional design, expressed so as to apply to a range of different legal systems and constitutional structures, is a document known as the Beijing Statement of Principles of the Independence of the Judiciary, signed by or on behalf of thirty-two Chief Justices of the Asia and Pacific region, including the President of the Supreme People’s Court of China and the Chief Justices of Australia, India, Japan, Indonesia, South Korea, Malaysia, New Zealand, Pakistan, the Philippines, Fiji, Hong Kong, Singapore, Sri Lanka, Vietnam and Thailand. This statement includes the following:
“3. Independence of the judiciary requires that:
(a) the judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source.
(b) the judiciary has jurisdiction, directly or by way of review, over all issues of a justiciable nature.”
I interpolate to observe that what is to be regarded as justiciable will vary from one nation to another.
“11. To enable the judiciary to achieve its objectives and perform its functions, it is essential that judges be chosen on the basis of proven competence, integrity and independence.
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17. Promotion of judges must be based on an objective assessment of factors such as competence, independence and experience.
18. Judges must have security of tenure.
19. It is recognised that, in some countries, tenure of judges is subject to confirmation from time
to time by vote of the people or other formal procedure.
20. However it is recommended that all judges exercising the same jurisdiction be appointed for a period to expire upon the attainment of a particular age.
21. A judge’s tenure must not be altered to the disadvantage of the judge during her or his term of office.
22. Judges should be subject to removal from office only for proved incapacity, conviction of a crime, or conduct which makes the judge unfit to be a judge.
…
31. Judges must receive adequate remuneration and be given appropriate terms and conditions of service. Remuneration and conditions of service of judges should not be altered to their disadvantage during their term of office, except as part of a uniform public economic measure to which the judges of a relevant court, or a majority of them, have agreed.
…
33. The judiciary must have jurisdiction over all issues of a justiciable nature and exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
…
35. The assignment of cases to judges is a matter of judicial administration over which ultimate control must belong to the chief judicial officer of the relevant court.
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38. Executive powers which may affect judges in their office, their remuneration or conditions, or their resources, must not be used so as to threaten or bring pressure upon a particular judge or judges.
39. Inducements or benefits should not be offered to or accepted by judges if they affect, or might affect, the performance of their judicial functions.”
As this document illustrates, issues of judicial independence arise in a range of different contexts including:
- The appointment of judges;
- Security of tenure and remuneration;
- Institutional autonomy, especially the assignment of judges to cases;
- Judicial accountability;
- Adequacy of resources for courts;
- Attacks on the judiciary, particularly in the media;
- The scope of judicial power, particularly dispute resolution by non-judicial tribunals.
Every one of these matters can be the subject of a paper of itself. It is obviously not possible to canvas the full range of issues in which independence questions arise in a paper such as this. I have, of necessity, focused on certain specific aspects.
REQUIREMENTS OF JUDICIAL INDEPENDENCE
There is no single model for achieving judicial independence. Nevertheless, there is a clear set of essential requirements to ensure the institutional independence of courts and the institutional impartiality of judges. Such independence and impartiality must not only exist. It must also appear to exist – reflected in the aphorism that justice must not only be done but must manifestly be seen to be done. The significance of appearances creates additional institutional restraints and requirements.
As is the case with many desirable attributes of a well functioning polity and society, the attainment of judicial independence and impartiality may, on occasions, conflict with the attainment of other desirable objectives. For example, in contemporary discourse there is a need to strike a balance between the requirements of independence on the one hand and an appropriate measure of judicial accountability on the other. In this respect also there is no single model applicable to all nations or to all times. There is a range of legitimate choice, but there are also constraints on the scope of that range.
Long experience over many generations and in many different societies has established certain requirements of institutional design of the judiciary for a rule of law system. Those requirements are the same, whether the rule of law is approached from the perspective of citizen and citizen or from that of citizen and state.
I do not wish to suggest that there is any single institutional arrangement that constitutes a perfect system. Human institutions do not admit of perfection. Nevertheless, the degree of autonomy, both formal and practical, of judicial decision-making processes, is of crucial significance for any nation which wishes to operate under the rule of law.
I have been asked to discuss the reasons for judicial independence. In my opinion, the dominant reason is that such independence is a requirement of the rule of law.
THE RULE OF LAW
No complex society can operate without the efficient and expeditious performance of legal functions, by means of direct enforcement of rules and by the deterrent effect of threatened or possible enforcement.
The sense of personal security of citizens, indeed the existence of social order, is determined in large measure by the extent to which people can arrange their personal affairs and their relationships with associates, friends, family and neighbours on the assumption that basic standards of propriety are met and reasonable expectations are satisfied. In all spheres of conduct it is essential that individuals and corporations know that they can pursue their lives with a reasonable degree of security, both of their person and of their property.
The legal system performs a critical role in the promotion of social order by the administration of the law in a manner which answers the fundamental requirements of justice namely, fair outcomes arrived at by fair procedures. The fairness of the procedures is as essential as the correctness or fairness of the outcomes. When people talk about having their “day in court” this is a matter that is of significance to their sense of freedom and of personal autonomy.
Those in society who are wealthy or powerful, including but not limited to the numerous manifestations of the executive branch of government, have other means of getting their way. What confines those with power, whether in government or commercial corporations or the media or, in some societies and contexts, social or religious groups or trade unions, is the effective operation of the rule of law.
Citizens are entitled to protection from the exercise of the power that others are able to exercise over their lives. Actual or threatened transgression of civil rights in society, notably but not limited to the exercise of the police function of government, are in large measure deterred by the very existence of an independent legal profession with access to courts consisting of independent judges. From time to time deterrence does not work and the judicial arm of government must be invoked, sometimes against other arms of government, both executive and parliamentary.
The rule of law involves a principle of universality, that is to say every person however powerful or wealthy is governed by the ordinary law and is personally liable for anything done contrary to the law. All authority and power, including all aspects of governmental authority and power, must find an ultimate source in the law. It is this principle that ensures that the rule of law differs from the arbitrary exercise of power. All authority is subject to and constrained by the law.
A second aspect of the rule of law is the concept of boundedness: that the law is not all encompassing. There is a substantial sphere of freedom of action. Citizens can only be constrained or punished for violation of the law and in accordance with the law. Where the law ends, so constraint ends. Judges and lawyers are boundary riders maintaining the integrity of the fences that divide legal constraint from the sphere of freedom of action.
Social order requires that laws which protect society, and individuals within society, are effectively enforced. It also requires that the personal autonomy and liberty of citizens is protected. Social order is not a state of quiescence. It is a state of certainty, at least to the degree that certainty is capable of attainment in a complex society.
The minimum content of the rule of law is that the rights and duties of persons in the community, and the consequences of breach of any such rights and duties, must be capable of objective determination. It is only if this is the case that persons and groups in society can interact with each other with confidence in an environment of social order. Judicial independence ensures that any such determination is, in fact, objective.
All forms of social interaction, including economic interaction, are impeded by the degree to which personal and property rights are subject to unpredictable and arbitrary incursion, so that people live in fear, or act on the basis of suspicion, rather than on the basis that others will act in a predictable way. A high level of predictability establishes the requisite social order and the confidence that one can act in accordance with reasonable beliefs as to one’s rights and obligations and that reasonable expectations will be met.
Of course the rule of law is not simply a system that contains rules that must be obeyed. The law is a system to be used by citizens for their own protection and for their own advancement in their relations with the State and with other citizens or organisations.
None of this can happen without the active participation of lawyers both by means of advising people of their rights and obligations and by ensuring that they are enforced. However, enforcement can only be reliable if there is an independent forum for the resolution of disputes about rights and obligations.
Social order requires that the social conflict that initiated the entire process is quelled by the result, both by reason of the fairness of the outcome and the fairness of the procedure.
The adversary system developed by the common law involves procedures that are widely regarded as fair and, accordingly, those who are subject at the end of a process to adverse findings are more likely to accept their loss than if other procedures were followed. The adversary system seeks to find truth by means of the Socratic dialogue, rather than by means of a Grand High Inquisitor.
A society cannot be governed by the rule of the law without an institutionalised arrangement for the independence of the judiciary. Furthermore, democracy depends on the courts enforcing what the legislature intended, not what the Executive wants.
The form of social order which we identify with a society operating under the rule of law can only exist if laws are administered fairly, rationally, predictability, consistently and impartially. Improper external influence, including all forms of inducement or pressure, are inconsistent with each of these objectives.
Fairness requires a reasonable process of consideration of the rights and duties asserted. Rationality requires a reasoned relationship between the rights and duties of the outcome. Predictability requires a process by which the outcome is related to the original rights and duties. Consistency requires similar cases to lead to similar results. Impartiality requires the decision-maker to be indifferent to the outcome.
Any form of improper influence, incompetence, inefficiency or bias distorts each of these objectives. Without institutionalised judicial independence, such distortions are inevitable.
IMPARTIALITY
As is recognised in the terms of numerous constitutional and international instruments, judicial independence is a fundamental right of citizens. It is not some kind of privilege which judges acquire as a perk of office. The reason for that is the absolute necessity for impartiality of judges, whether in civil or criminal trials.
The starting point for the impartial administration of justice is some form of institutional autonomy. An effective judiciary requires a distinct esprit de corps and its own legitimising traditions. This is often reflected in distinctive form of dress. The judiciary must be, and be seen to be, institutionalised as a distinct group performing distinct functions.
There are many choices in the institutional design of the judiciary with respect to these matters. Insofar as a polity wishes to be a society in which the rule of law operates, it is essential that the ultimate guardians of the law must have the level of integrity and the status that enables courts to act as an effective constraint on the exercise of power and as a source of social guidance.
The judiciary must be independent of any person who may seek to exercise influence on the outcome of legal proceedings in any manner and for whatever reason. Unless that is so, the rule of law is inevitably compromised.
Obviously, parties to a dispute are the most likely persons who would seek to exercise such influence. However, persons who wish to manifest their power, or to pursue a political, religious or social agenda, are all likely to seek to have their wishes or views implemented in the course of judicial decision-making. That is, of course, particularly true with respect to judgments that have broader implications, such as Constitutional decisions, but it is a form of pressure that could arise in any kind of case.
Unless judges are hard to get at, because of institutional autonomy and personal independence, there will be no shortage of persons who try to do so. Judicial independence does not only involve freedom from direct interference. It also involves freedom from dependence of a character which may lead to actual, or even perceived, influence without the need to exert actual interference.
People who are used to getting their way do not usually take kindly to their wishes being frustrated. In the past that has included the aristocracy, when it was the centre of social and economic power. These days such centres of power include major corporations and the mass media. Throughout history, the executive branch of government has been such a centre of power.
The threat to independence from the Executive branch is, of course, particularly acute because the Executive is, in one manner or another, the ultimate source of power for the appointment of judges, for the administration of mechanisms for discipline or removal and the source of funding for all aspects of the administration of justice.
The most significant single aspect of the institutional arrangements for judicial independence, is the need to insulate, indeed to isolate, the exercise of judicial power from interference or pressure from the Executive branch of government. To a substantial degree this is simply a manifestation of the need to ensure impartiality. So far as I am aware, in all jurisdictions, the hydra-headed Executive branch is the single most frequent litigant in the courts.
Citizens confront the Executive branch in all its various capacities in the course of litigation.
- Courts are frequently called upon to determine the validity of executive action and the constitutional validity of legislation promoted by the Executive.
- Any citizen can be subject to investigation or prosecution by the various authorities that exercise the police power of the state, not only with respect to matters that involve allegations of criminal conduct, but also with respect to the full range of regulations that seek to confine or direct the personal behaviour of citizens and corporations.
- As taxpayers, citizens are engaged in disputes with revenue authorities.
- As property owners, citizens are engaged in disputes with the wide range of regulatory authorities that determine what they can do with their property, indeed whether it can be compulsorily acquired, and if so, at what price.
- As employees, citizens confront the largest single employer in the nation.
- As persons entitled to legislative benefits, citizens are confronted with the full range of bureaucratic decision-making processes.
- A significant proportion of injured persons seek compensation from government agencies such as hospitals, railways, road authorities and police.
- Governmental organisations manifest the full range of commercial interests as suppliers or purchasers of goods and services from others, which are as much prone to disputes over property rights or contractual terms as any other commercial relationship.
THREATS TO INDEPENDENCE
I have been asked to discuss the threats to judicial independence. The Executive arm has always been regarded as the principal threat to judicial independence. However, it is not the only such threat. Any significant source of power in a society may constitute a threat.
Necessarily threats to judicial independence differ significantly from one jurisdiction to another. It is, accordingly, extremely difficult to generalise about this matter, although there do appear to be certain common themes in countries in similar stages of economic development.
There are nations where the enforcement of the protection of the judiciary is suspect and, in such situations, any individual or group who can threaten the personal security of a judge or a judge’s family may be tempted to do. Persons of wealth, power or those with a monopoly of force, such as the police and armed forces, may constitute such a threat. In some societies social groups, notably of a fundamentalist religious character, may have similar inclinations.
Even where no issue of personal security arises, there may be the possibility of public ridicule and contempt of individual judges or of the judiciary as a whole. This may be driven by, or reflected in, the mass media, which can mount a campaign of intimidation of a character short of physical threats but nevertheless capable of interfering with the actual or perceived impartiality of judicial decision-making processes.
There are numerous decision-making processes capable of impinging on judicial independence. Judges who are selected or promoted on the basis of how they are likely to decide, rather than on the basis of their professional expertise, may not disappoint the authorities who select and promote them. Judges who may have their appointments terminated by a mechanism which does not contain real restraints, of a formal and informal character, are unlikely to be prepared to offend persons or groups capable of exercising power in their community. Courts that are continually requesting additional resources from government, in order to perform their functions effectively, may prove more likely to be subject to subtle pressures to achieve particular outcomes in matters of significance to those who control the resources. Judges who are inadequately remunerated, given the economic circumstances of their particular nation, are subject to temptations which may be difficult to resist. Similarly, in the case of judges who are not accorded the status required to ensure that the administration of the law in their society is a matter of significance. A judiciary which is accorded a low status and, accordingly, a low level of respect in its community, will be less likely to have the level of competence and impartiality required for the effective administration of justice.
At one extreme is the position of a nation which is subject to military rule, the least accountable form of executive interference with the judiciary. This year the Chief Justices of two common law nations have been deposed by military rulers.
Daniel Fatiaki, Chief Justice of Fiji, was forced to go on “voluntary leave” in January and has since been subject to a ban on travel. The administration of the Supreme Court proceeded on the basis of dubious legality, perhaps not an unexpected phenomenon in the wake of a military coup.
In March, Chief Justice Iftikhar Chaudhry of Pakistan was removed from office in circumstances which clearly indicate a political motive, not only with respect to past decisions, but also with respect to future litigation about the legality of the plan of the present President of Pakistan to seek a third term in office, notwithstanding a Constitutional prohibition. Chief Justice Chaudhry was placed under house arrest but refused to resign under pressure and the legal profession manifested its support for him in public demonstrations.
In the case of the removal of both of these Chief Justices, a rather pathetic attempt was made to suggest that each had been guilty of some kind of impropriety in the past. Even military rulers acknowledge the force, particularly in international circles, of the principle of judicial independence. Such hypocrisy, as has often been said, is the homage that vice pays to virtue.
Most common law jurisdictions do not face challenges to judicial independence of this character. In most common law jurisdictions the challenges to judicial independence are less dramatic. The fact that there are only incremental challenges, rather than overt threats, perhaps makes them more difficult to combat.
As I have indicated above, independence issues can arise in a wide range of different aspects of the administration of justice. I have to be selective. I have chosen two topics to promote discussion at this Conference. First, attacks on the judiciary in the course of public debate. Second, the removal of dispute resolution from judicial determination.
PUBLIC PRESSURE
Often the most significant point of pressure on members of the judiciary comes from public pressure, particularly as reflected in the media which, in turn, influences politicians. Objectivity, impartiality, adherence to legal principle and precedent, maintenance of equality before the law can all be compromised by the extent to which judges respond to actual or anticipated pressure.
In many nations respect for authority has diminished over recent decades to a significant degree. Judges are not alone in this. There are, however, developments that particularly impinge on the judiciary.
The traditional media are faced with declining readership or audiences, indeed are threatened with technological obsolescence. Their defensive reaction has been to increase their noise level, notably by conducting campaigns and, generally, by pandering to public prejudices and exacerbating public fears. The judiciary’s traditional reticence is a soft target.
Heightened standards of accountability – with respect to both the use of public resources and the integrity of public decision-making – requires the judiciary to explain and defend itself in ways which would once have been regarded as an affront to its dignity and, perhaps, to its independence. I am not talking about that development. What concerns me is the development, discernible in many jurisdictions, that the judiciary is subject to transient rages and enthusiasms, generally ill-informed or partly informed, designed to influence judicial decision-making either on appeal or in future cases.
In many different jurisdictions, the political capacity, or the political will to resist these forces has been attenuated or has even broken down. The institutional mechanisms that protected the judiciary in the past are showing signs of strain.
Generally, the judiciary has manifested a high level of resilience in the face of ill-conceived and unsupported allegations that judges are out of touch with community values. However, personal resilience is not enough to maintain that level of impartiality and independence that the rule of law requires. We may need to develop new mechanisms to protect the integrity of judicial decision-making if those trends continue.
One of the ways in which judges in most common law jurisdictions became known to the public was through the jury system. However, summary jurisdiction has expanded in criminal justice and in most jurisdictions, other than the United States, the use of the civil jury has substantially diminished or has disappeared. This decline in public participation has reduced understanding about the courts in the community. Where this has happened, institutional design has not yet compensated for the change.
It is, of course, essential to bear in mind that fidelity to the law and to legal processes, does not permit, let alone require, that popularity be an objective of the judiciary. We must not confuse public opinion, which is fragmentary and transient, with public confidence, which is broadly based and enduring. The judiciary must tolerate a high level of public outrage when it respects the rights of unpopular people.
Nevertheless, judges are human and it is necessary to be concerned in the face of the trends to which I have referred, whether the anticipation of public hostility is adversely affecting the objectivity and neutrality of the administration of justice, even if unconsciously. Fortitude is required. A principal source of strength is the bond of collegiality, often developed in practice at the bar. It is also necessary to understand that complaining about misreporting in the media is as pointless as complaining about the weather. However, fortitude may not be enough in the long term. We may need to look at structural issues or institutional design.
In common law nations such as Pakistan and Malaysia and, possibly, in some parts of the United States, the strength of the religious revival, particularly of a fundamentalist kind, may also exert pressure of this character on a range of social issues. In many common law nations, including Australia, a more broadly based pressure operates with respect to the administration of criminal justice. Sentencing of criminals engages the interest, and sometimes the passion, of the public to a substantial degree.
In all recorded history there has never been a time when crime and punishment has not been the subject of debate and difference of opinion. The problem seems to have started in the Garden of Eden itself, when God called Adam to account for his transgression. He, of course, blamed his wife. She, more imaginatively, blamed the snake. All three were subject to condign punishment. For millennia, theologians and others have been debating whether that punishment has had a deterrent affect and how to enhance mankind’s prospects of rehabilitation.
The threat to judicial independence arises because of an apparent failure in our institutional mechanisms to explain what is actually done in the sentencing task and why. The media, with its understandable focus on controversy, simply fails to inform the public about what judges are actually doing in the normal line of case.
Media publicity of the usual kind has the perverse effect of convincing some potential criminals that the punishment they are likely to receive is less than it actually will be. Incorrect allegations of judicial leniency undermines general deterrence. To put this in tabloid headline form: “MEDIA BIAS CAUSES CRIME WAVE”.
In view of the behaviour patterns of contemporary media, we face a challenge of a structural character.
It is, however, necessary to maintain a sense of perspective as well as of proportion about these matters. A century ago Roscoe Pound delivered a lecture entitled “The Causes of Popular Dissatisfaction with the Administration of Justice” [1]. This paper commences with the sentence “Dissatisfaction with the administration of justice is as old as law”. It still is. Much of what Pound said a century ago is still relevant. We have to accept a level of popular dissatisfaction as inevitable.
In a democratic polity there is an understandable reluctance to accept the necessity of expertise. Many approach the administration of justice on the basis that it requires an outcome that is responsive to the immediate wishes of the community. They assume that one could devise a mechanism for identifying such wishes. They also assume that these wishes are neither transitory nor likely to alter after tranquil deliberation. The common refrain is that judges are out of touch and that lawyers are at best greedy and at worst systematically deceptive.
There is nothing new in a conflict in which one side characterises the other as populist, and the latter characterises the former as elitist.
There are some voices in the community which suggest that they would never be happy unless legal decision-making occurs either by means of polls on talkback radio or by means of voting on reality television.
Ancient Greece did not have the technology that would enable citizens to sit at home, watch a trial and record a verdict by electronic communication. The reality audience of that era had to be gathered in one place. Major trials in Ancient Greece were conducted in the public agora by a jury of 500 citizens voting on guilt or acquittal and then on penalty [2].
It was one of the great Pericles’ innovations that jurors were entitled to significant pay for their deliberations, hence allowing the poorest of Athenians to participate, indeed for them to do so at a profit.
Lawyers were banned. Any litigant had to speak for himself or herself. However, a class of speechwriters or logographers emerged and their drafts have come down to us as one of the major sources of our knowledge of Athenian society. Our other major source is such of the Greek plays as have survived.
It is noteworthy that a common theme, particularly in the plays of Aristophanes, is a sustained attack on the excessive litigiousness of Athenian society. Aristophanes satirised citizens who became as obsessed with litigation as any dedicated watcher of reality television, thrilled by the power of rendering a verdict, in the same way as a reality television audience is thrilled by the power of voting for an eviction from the programme.
A principal target of the dramatists, particularly Aristophanes, was the class of litigants in person who flooded the courts with tendentious processes. This class was denounced as “sycophants”. The word did not then mean a servile flatterer, as in contemporary usage, but something like a public informer, with an overtone of being a pest.
The plays of Aristophanes characterise sycophants as freelance operators out to make money, if necessary by blackmailing individuals, inventing false charges and indulging in slander.
On the two occasions when the Greek democratic system was suspended during the course of the 5th Century BC, law reform, particularly the control of sycophancy, was high on the list of changes. One of the leaders of the revolt known as “The Thirty Tyrants” was a student of the philosopher Socrates. Even Aristophanes had, before this revolt, characterised him as a subversive, when he described a gang of pro-Sparta aristocratic youths as “Socratified”.
Socrates was convicted by a jury of 500 citizens, voting 280 to 220 for guilt on charges of corrupting the youth of Athens and impiety. When Socrates treated the verdict with scorn, during the hearing on sentence, the 500 jurors overwhelmingly voted for death.
Any reality television audience would have done the same. This may not be the model to pursue in response to popular dissatisfaction.
THE SCOPE OF JUDICIAL DECISIONS
It is important that the principle of judicial independence is not stated too widely. Not every aspect of the administration of justice can be encompassed within the concept of independence. Not every matter which impinges upon access to justice or the quality and fairness of adjudication or operates as a restraint on judicial conduct constitutes a threat to independence. Relevantly, there is no single model for delineating the range of matters which ought to be decided by means of judicial decision-making processes.
Executive and quasi-judicial mechanisms for determining rights and obligations are, of course, perfectly acceptable. Generally, this matter does not raise an independence issue. It is usually a matter of the quality, including the efficiency, of the process.
However, it is possible that the continued expansion in the use of non-judicial decision-making processes to resolve disputes and to determine rights can become so significant as to deprive the idea of judicial independence of a great deal of its practical content. We may not have given sufficient attention to this aspect of independence.
This is a matter that can only be assessed in the context of a specific jurisdiction to another. One cannot determine any clear line between what must be judicial decision-making and what may be properly regarded as administrative or quasi-judicial decision-making. Nevertheless, the extent to which matters capable of judicial determination are in fact removed to tribunals, often called courts, which do not have the benefit of the minimum requirements of traditional sections of the independence of the judiciary, then there may be a cause for concern.
Where the line is to be drawn may, in nations with a written Constitution, raise important constitutional issues. In Australia, this has been a common issue in the High Court over recent decades.
That Court’s interpretation of the requirements of the separation of powers under Chapter 3 of the Australian Constitution appears to be more rigorous in this respect than the jurisprudence of the Supreme Court of the United State’s Article III of the Constitution of the United States. There are a wide range of approaches to this matter in the different jurisdictions. This is a topic that is beyond the scope of this paper. An exercise in comparative constitutional law would be particularly revealing in this respect. When determining whether to confer dispute resolution functions on non-judicial tribunals, there are issues of principle as to where the line can permissibly be drawn. The minimum requirements of independence and impartiality should be met in any context in which the rights and obligations of individuals are to be determined in accordance with law.
Although it is difficult to be sure about this, there does appear to be a drift in many jurisdictions to expand the scope and range of matters determined by courts and tribunals that do not have the traditional protection. The reasons for this will obviously differ from one nation to another. For example, in the United States the difficulty of obtaining Congressional approval to the appointment of Article III judges is, no doubt, one reason why the jurisdiction and the size of non Article III courts appears to have grown.
In some nations a significant range of matters is determined by religious courts. This was, of course, once the case in England. However, in English history, ecclesiastical courts were kept within appropriate confines by the supervisory jurisdiction of the common law courts. In Malaysia, supervisory jurisdiction over sharia courts have been abrogated by the Malaysian Constitution. This has created a situation of acute conflict between the common law courts and sharia courts. The latter determine for themselves what constitutes a matter for religious determination. This institutional design does raise issues of judicial independence.
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In many jurisdictions, concern about the costs and delays associated with judicial processes is often expressed as the reason for developing alternative forms of tribunals. There are, however, occasions when specialist courts or tribunals have been created, or had their jurisdiction expanded, at the behest of specific interest groups, including lawyers with specialist practices, to bring what is regarded as particular expertise, namely their own, to the decision-making process. They develop a self-regarding jurisprudence, often oblivious to developments in the law by courts of general jurisdiction.
Trends of this character can pose dangers, especially when supervision of these tribunals is prevented by privative clauses. The political lobbying force of special interest groups or their lawyers, and the close personal relationships that have existed amongst parties, lawyers and judges, may inappropriately expand the scope of the jurisdiction of specialist tribunals, at the expense of courts of general jurisdiction. The principles of independence and impartiality may be attenuated in such a context.
In Australia the most significant controversies that have arisen about judicial independence have been in the context of whether or not judges will be reappointed when such a specialist court or tribunal is abolished or reconstituted. Inevitably, the highly political process that created the specialist regime changes with the political tides in a manner that does not affect the structure of general courts. Such failure to reappoint has occurred in Australia, particularly with the abolition and recreation of specialist courts dealing with industrial matters and also, in one State, in the case of a specialist tribunal dealing with motor accidents.
It may be that we have given insufficient attention to the independence issues that arise from the expansion in the number and jurisdiction of specialist courts and tribunals which do not have the traditional protections of judicial independence and impartiality. This is a matter that receives express attention in the relevant international instruments.
For example, Article 14 of the International Covenant on Civil and Political Rights is not directed only at courts. It states:
“Everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”
Similarly, the 1985 United Nations Basic Principles provides in Article 3:
“The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its confidence as defined by law.”
Finally, the Beijing Principles provides in Article 33:
“The judiciary must have jurisdiction over all issues of a justiciable nature and exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.” (And see Article 3(b) quoted above.)
The principles reflected in these statements do not appear to have engendered much debate. However, if I am correct and there is a distinct trend to remove disputes from judicial determination by courts of general jurisdiction, greater attention may need to be given to this aspect of judicial independence.
To the extent that this trend is of concern, then it should raise the priority to be given to measures which contain the costs of judicial determination of disputes. Cost is often the reason for taking matters away from courts.
The one thing we cannot do is to rely on the traditional lawyer’s instinct that nothing must ever be done for the first time.
Giuseppe di Lampedusa, in his great novel, The Leopard, had a perceptive aristocrat, facing the oblivion of the Sicilian aristocracy, say:
“If you want things to stay the same, you have to change.”
Not all societies or social groups prove capable of changing their practices, often with disastrous results. As Jared Diamond noted in his recent book Collapse: How Societies Choose to Fail or Survive, a form of intellectual paralysis may emerge which leads to doom. What, he legitimately asked, was in the mind of the Easter Islander, when he chopped down the last tree on that island upon which the whole society had long depended? A similar question could be asked of some legal practitioners and of judges.
Ours is a profession that values stability, with reason. However, the one thing that is a constant in legal history is the omnipresence of continuity and change. As Aharon Barak, the recently retired Chief Justice of Israel once put it:
“Like the eagle in the sky that maintains its stability only when it is moving, so too is the law stable only when it is moving.” [3]
During the Second World War, the British pressed into service for home defence whatever armaments they had available, including artillery of great vintage. Mobile units were deployed up and down the coast and trained in the traditional manner of the Royal Artillery. Concern developed about the apparent lack of efficiency of the processes. The methods which the soldiers had been trained to perform in the loading, aiming and firing routines was subject to careful study. Something was extremely odd. A moment before firing, two members of the gun crew ceased all activity, stepped back from the piece during its entire firing sequence and stood to attention. The investigator called in an old retired Colonel of artillery to ask him why all this energy and time was being wasted. The Colonel knew where these practices had come from. He said: “They are holding the horses” .
Judges and lawyers have to understand why we do the things that we do and the reasons why we do them in the particular way that they are done, in order to ensure that we are not just holding imaginary horses. Unless the judicial process continues to adapt, the pressures to bypass it may prevail.
END NOTES
1. (1906) 29 ABA Rep 395; accessible in full at http://www.answers.com/topic/the-causes-of-popular-dissatisfaction-with-the-administration-of-justice.
2. The following analysis is based in large measure on Matthew R Christ The Litigious Athenian John Hopkins Uni Press, Baltimore (1998).
3. Aharon Barak “A Judge on Judging: The Role of the Supreme Court in a Democracy” (2002) 116 Harvard L Rev 16 at 29.
4. Elting E Morison Men, Machines and Modern Times MIT Press, Cambridge Mass. (1966) at 17-18.
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