Judicial Independence Around the World: Nepal & Morocco

In a previous blog we looked at judicial independence in Papua New Guinea. Now, we turn our attention to judicial politics in Morocco and also in Nepal. The two nations are both facing constitutional upheaval, Nepal is currently ‘in-between Constitutions’ and Morocco has been in the process of wide-ranging reforms since July 2011, when a new constitution came into force.

Nepal: The caretaker Maoist government and opposition parties have recently been struggling to agree a new Constitution. Indeed, the Constituent Assembly was dissolved without a new Constitution in place. This was good news for Supreme Court judge Rana Bahadur Bam who was the subject of impeachment proceedings at the time – without a legislature the impeachment had to be abandoned. Mr Bam was allowed to remain as a sitting judge.

Rana Bahadur Bam had been accused of taking bribes in 2010 from suspects charged with abduction in exchange for giving them light sentences.

On 31st May 2012 gunmen on motorcycles attacked Mr Bam’s car as he left the Bagamukhi temple to drive to court in Kathmandu. Mr Bam was shot six times and later died in hospital.  Without a Constitution it could be argued that the judiciary are truly independent. However, without a legislature (to make law) and an executive (to enforce that law) the judiciary are left dangerously exposed to those in society who care little for justice, as was evidenced by the murder of Judge Bam.

Morocco: In May 2012 the Club of Moroccan judges, which represents more than half of the judiciary, launched a campaign to demand greater judicial independence. The Moroccan royal family and government currently have control of judicial promotions and salaries.

Approximately 2,900 judges then wore a red armband for a week as a form of protest.

Moroccan Judge Red Protest Armband

A red armband is tied to the robe of a Moroccan judge as a form of protest.

King Mohammed VI announced a new government panel, called the ‘supreme body for national dialogue on the reform of justice’. The panel is led by the Minister of Justice, Mustapha Ramid, and comprises forty members (including eight women). The aim is to draft a national judicial charter.

The panel did not get off to the most auspicious of starts when Taieb Nassiri (a former justice minister) suffered a heart attack at one of the panel’s first meetings. On a more positive note, the panel have already established a work schedule – seven topics to discuss and visits to ten cities, starting in Rabat on 7th & 8th June.

King Mohammed VI noted that “the independence of the judiciary, relative to the legislative and executive branches” is specified in the constitution. The monarch is the guarantor of judicial independence (see Article 107 Moroccan Constitution 2011).

Choosing the monarch as guarantor for judicial independence is an interesting concept. On one hand selecting the monarch is a wise choice; it provides a way to protect the judiciary without overtly politicising them – particularly as the integrity of the Monarch is taken as ‘inviolable’ by Article 46 Moroccan Constitution 2011.

At the same time, won’t the wave of democrats that have emerged in the Maghreb since the Arab Spring be troubled by the fact that the unelected judiciary is guaranteed by an unaccountable King?

Judicial Independence Across the World: Papua New Guinea

In a previous blog  we looked at judicial independence in Greece (where a judge has been appointed caretaker Prime Minister) and Hungary (where the ruling Fidesz have introduced constitutional reforms to place the management of the judiciary firmly in the hands of the executive).

We contrasted this with the stability of judicial independence in the United Kingdom. The debates in this country centre on some very abstruse technicalities, for example the changes to the composition of selection panels for Supreme Court judges proposed by the Crime & Courts Bill 2012. The constitutional position of the judiciary only very rarely enters the public consciousness – think of the recent Peter Hain case, although that was hardly a ‘stop the presses’ type story!

However, much as in Greece and Hungary, in many nations judicial independence is a ‘headline issue’. We are trying to avoid making value judgments on any of these particular cases, and we acknowledge that the judiciary aren’t always sacrosanct. Rather, this blog is just an observation on how judicial independence is a much more pressing political issue in some parts of the world.

We shall begin by looking at the recent, and very chaotic, events that have influenced judicial independence in Papua New Guinea. We hope that this is an appropriate starting point for blogs looking at global judicial independence – it is hard to think of a series of events that could violate the doctrines of the separation of powers more roundly!!!

Papua New Guinea: Two justices of the Papua New Guinean Supreme Court were recently arrested on charges of sedition. Chief Justice Sir Salamo Injia was apprehended by a police unit, led by the Deputy Prime Minister Belden Namah, which stormed into the Chief Justice’s court on 24th May 2012. Justice Nicholas Kirriwom was also detained and questioned by the authorities.

Mr Namah insisted that the Chief Justice was playing politics and was quoted as saying that “the Chief Justice is sick in his head”. The Chief Justice appealed to police and military personnel to abide by his ruling. “This country is being run by men who are happy to use force rather than the rule of law,” he said.

In late May 2012, the two judges had sat as part of a three man bench that ruled (for the second time) that Sir Michael Somare is the legitimate Prime Minister of Papua New Guinea, not Parliament’s choice, Peter O’Neill. Two other Supreme Court judges, Deputy Chief Justice Gibbs Salika & Bernard Sakora, had refused to hand down judgements, citing ethical reasons.  Justice Kirriwom was also accused of authoring an email (sent to other members of the judiciary) that referred to the O’Neill government as illegal.

In late 2011 Sir Michael, the long-time leader of Papua New Guinea, was out of the country receiving medical treatment. Parliament decided that (as Sir Michael had been absent for such a long time) the Prime Minister role was vacant. MP’s then elected Mr O’Neill as the new Prime Minister. In December 2011 the Supreme Court ruled that Sir Michael was the legitimate leader of Papua New Guinea, which briefly led to Sir Michael & Mr O’Neill being Prime Minister simultaneously!

Since then Mr O’Neill has been effectively running Papua New Guinea and it was his government that ordered the arrest of the judges.

Rather confusingly, the Deputy Speaker (Francis Marus) recently declared to Parliament that the court’s decisions would be accepted. However, Mr. Marus said that Sir Michael could not be reinstated as he had missed three sessions of Parliament since January. Nominations for a new Prime Minister were then thrown open.

This led to Mr O’Neill being elected (again) by Parliamentarians on 30th May 2012. The situation should become clearer after general elections in June 2012.

Greek politics and judicial independence

Panagiotis PikrammenosJudicial independence rarely comes to the forefront of contemporary European politics. Normally, the esoteric technicalities of how the judiciary interact with the other branches of government are not of interest to most people.

There are exceptions to this – a few months ago Viktor Orban’s ruling Fidesz party in Hungary was very publicly criticised by the Council of Europe’s Commission for Democracy through Law (the Venice Commission) for various constitutional reforms that placed powers for selecting, disciplining and allocating judges into the hands of the (politically appointed) president of the National Judicial Office, Tünde Handó. Mrs Handó’s appointment was even more controversial as she is married to József Szájer, a Fidesz founder and a current MEP for the party.

However, recent events in Greece have really put the politics back into judicial independence. A senior judge, Panagiotis Pikrammenos, has been appointed as caretaker Prime Minister. This has occurred in accordance with Article 37(3) of the Greek Constitution which holds that the Greek President, after giving various parties time to form coalitions (and then having a go at forming a cross-party coalition himself), can appoint the President of the Supreme Administrative Court of Greece (called the Council of State) to form a Cabinet in order to carry out elections and dissolve Parliament.

Mr Pikrammenos has recently appointed an interim Cabinet, mainly composed of diplomats, academics and former ministers. All sixteen members have agreed not to draw any salary for their work in the interim Cabinet.

Theoretically, the appointment of a judge as Prime Minister is a violation of major constitutional principles. It is more difficult, if not impossible, for the judiciary to be independent of the executive if a judge is in charge of the executive! The notion of the separation of powers is also ‘shot to pieces’ by the appointment of Mr Pikrammenos, especially when you consider that there is now no effective legislature from which the powers of the executive & judiciary should be separated.

However, on a more pragmatic level, there are several reasons why selecting Mr Pikrammenos’ was a relatively tidy solution to Greece’s constitutional problems. Firstly, the citizens of any democracy would, presumably, feel more comfortable with a judge in power. Control by the executive (the ‘machinery of state’) would smack too much of dictatorship, especially in Greece.

Secondly, the Greek Cabinet chose Mr Pikrammenos to become President of the Council of State in 2009 and so it could be argued that he has (very limited) democratic legitimacy.

Thirdly, Mr Pikrammenos is probably one of the most able candidates available. Mr Pikrammenos, an experienced administrative lawyer and judge, has knowledge of how government policy works in practice and how it impacts upon citizens.

Finally, it is important to remember that making a judge Prime Minister is a temporary solution and one that is only used in extremis. Greece is expecting to hold elections on 17th June.

Mr Pikrammenos’ name translates as ‘Mr Embittered’. It is likely that he will be after his month in office.

Recent Judicial Independence Seminars: ‘Law, Politics and the Future of Human Rights Act’ and ‘Judicial Independence and Judicial Appointments’

The Judicial Independence Project recently held two seminars for politicians, judges, lawyers and academics, run under the Chatham House Rule. The first, on ‘Law, Politics and the Future of the Human Rights Act’ on 2 February, was jointly organised with Prof Dawn Oliver and Middle Temple. The headline conclusion was that most speakers expected that the Coalition Government’s Commission on a British Bill of Rights would come to nothing, leaving the Human Rights Act (HRA) intact. The nature of Britain’s international human rights obligations – under the Convention but also increasingly, and much more directly, under EU law – entail that Britain cannot really take away from Convention rights but can only add to them. However, some thought that there was still a possibility that the HRA might be weakened after the current process.

Several speakers also argued that the UK courts are not obliged to follow the decisions of the European Court of Human Rights in Strasbourg in every circumstance, and that Lord Bingham’s argument to this effect in the Ullah case was wrong. The UK could make greater use of the margin of appreciation afforded by the Convention to member states. However, there was also positive reference to the dialogue that occurred between the UK Supreme Court in connection with the Al Khawaja and Horncastle cases.

Speakers also acknowledged the phenomenon of public discontent with the HRA. This discontent is based mainly on perception rather than substance and survey evidence reveals very high support for human rights but poor support for the HRA itself, and poor understanding of the Act. But politicians will not ignore this public discontent while it exists.

The second seminar was on ‘Judicial Independence and Judicial Appointments’. Speakers commented on the vulnerability of the Judicial Appointments Commission (JAC). The Commissionis a young organisation but has already been reviewed by the Ministry of Justice (in 2010; the result was positive) and included, and then excluded, from the Public Bodies Bill as part of a list of quangos that were potentially to be abolished. As one speaker put it ‘we’ve planted a daffodil and a number of times we’ve pulled the daffodil out of the ground to review whether or not it’s working’. The JAC needs time to develop and establish itself.

There was some discussion about the role of Parliament in appointments. Some participants (although not all) felt that judges currently have too much involvement in appointment and argued that judicial independence does not require the involvement of judges in the selected of their successors. One suggested that a greater role for the Lord Chancellor and Parliament in appointments would be of benefit to judges. By increasing the legitimacy of appointments and by getting politicians to invest in the process, judges would gain some protection from conflict with politicians. It was suggested that UK Supreme Court justices, in particular, should not be appointed without the approval of a select committee.

You can read short notes of both of these seminars on the Project website:

Law, Politics and the Future of the Human Rights Act

Judicial Independence and Judicial Appointments

Kate Malleson: Taking the politics out of judicial appointments?

[Posted on behalf of Kate Malleson. This post originally appeared on the UK Constitutional Law Group Blog.]

Seven years after the judicial appointments process was completely refashioned under the provisions of the Constitutional Reform Act 2005 (CRA), the system is being looked at again. In November, the Ministry of Justice issued a consultation paper on ‘Judicial Appointments and Diversity: A Judiciary for the 21st Century’ pre-empting the forthcoming report of the House of Lords Constitution Committee inquiry on the same topic. A key issue in both the consultation paper and much of the evidence submitted to the Lords inquiry is the role of the Lord Chancellor in the appointments process. The provisions of the CRA reducing the role of the Lord Chancellor to that of a limited veto over the decisions of the judicial appointments commission (JAC) have been subject to a range of criticisms. The aim of the consultation paper is to address these concerns by achieving ‘…the proper balance between executive, judicial and independent responsibilities’. To this end, it proposes transferring the Lord Chancellor’s powers to the Lord Chief Justice in relation to appointments below the High Court or Court of Appeal while at the same time ensuring that the Lord Chancellor plays a more ‘meaningful role’ in relation to the higher judicial ranks. This would be achieved by requiring the JAC  to consult the Lord Chancellor on potential candidates for the most senior appointments and by including the Lord Chancellor on the JAC  selection panel for the appointment of the Lord Chief Justice and for the appointment of the President of the UK Supreme Court by the ad hoc Supreme Court appointment commission. At the same time, the Lord Chancellor’s current power of veto would be removed.

At first blush, therefore, these proposals look like a sensible attempt to recognise the distinction between the lower and upper ranks of the judiciary, acknowledging what the Lord Chancellor, Kenneth Clarke, has described as the ‘ritual’ element of his involvement in appointments at the lower ranks, while recognising the need for greater political accountability in appointments to the senior judiciary. The consultation paper notes the potential for a democratic deficit if the executive is not involved in the process: ‘We consider that the complete removal of the Lord Chancellor from the entire process would result in an accountability gap and are of the view that this gap increases with the seniority of the appointment being made’.

The first element of the proposed change, the removal of the role of the Lord Chancellor in relation to positions below the High Court or Court of Appeal, has attracted considerable support from those who gave evidence to the Lords inquiry. The Lord Chancellor himself stated in evidence to the Committee that in relation to this aspect of his role he simply ‘goes through the motions’ of reviewing the candidates about whom he knows little or nothing. In contrast, the proposed removal of the Lord Chancellor’s current right of veto in relation to the upper judiciary is far more controversial and it is hard to see that this aspect of the proposed change represents the creation of a more ‘meaningful’ role for the executive. The reason why the JAC was set up as a recommending commission rather than an appointing body, with the Lord Chancellor retaining the final say in appointments, was to provide a potential check on the decision-making of the independent commission in the event of something going wrong in relation to an appointment (whether the error was committed in good faith or bad) and to maintain a meaningful degree of political accountability in the process. The first of these functions would be lost under the proposals and the second would be weakened. In addition, the proposed change is likely to undermine efforts to increase diversity in the judiciary. Experience in other jurisdictions, as well as the UK, has shown that diversity does not automatically improve as the composition of the legal profession changes but requires political will to drive forward proactive changes, some of which are not supported by the judiciary or the legal profession.

A better option for striking the correct balance between the branches of government would be to retain the Lord Chancellor’s veto and for the JAC (and the ad hoc commission in relation to Supreme Court appointments) to provide the Lord Chancellor with a short-list of three names of candidates to choose from for all senior appointments whom the commissions consider to be very well-qualified and appointable. This would allow for an appropriate degree of political input in the process and would open space for the Lord Chancellor to promote greater diversity though his choice of candidates while maintaining selection on merit. It would also maintain the important function of a back-stop in case of error or malpractice.

The Judicial Independence Project recently made a submission to the Ministry of Justice consultation on Judicial Appointments and Diversity. The submission can be read here

Appointments and Diversity: A Judiciary for the 21st Century

The Judicial Independence Project has submitted a response to the Ministry of Justice consultation on ‘Appointments and Diversity: A Judiciary for the 21st Century’, which closed yesterday.

Summary

  • There is a legitimate role for the executive in the appointment of judges. Not onlydoes executive involvement provide a check on the decision-making of the JAC, and the selection commissions responsible for the most senior appointments, it also supplies an important mechanism of political accountability. Above all, executive involvement is critical for fostering the executive’s trust and confidence in the judges. Similar considerations apply to Parliament. If the executive and Parliament are wholly or largely excluded from the appointment process, they might be less inclined to respect the role and independence of the judiciary.
  • The Consultation Paper envisages the reduced involvement of the Lord Chancellorin appointments at the lower ranks of the judiciary, but increased involvement at the higher ranks, through participating in the ad hoc selection panels for the most senior judicial appointments.
  • On appointments to the lower levels of the judiciary, our view is that the goal ofincreasing diversity requires the continued involvement of the Lord Chancellor. Theexperience in a number of overseas jurisdictions, as well as in the UK, demonstrates that improving diversity does not happen automatically as a result of changes in the composition of the legal profession. There is no convincing evidence of a “trickle up” effect. Rather, increasing judicial diversity requires political will to push for reforms, some of which might not be supported by the judiciary or legal profession. Removing the Lord Chancellor from the process of selection to the lower ranks of the judiciary removes the opportunity for the exercise of this political will.
  • On senior appointments, we welcome the impetus to give the Lord Chancellor agreater role. We disagree, however, with the suggested way of doing so. Rather than the Lord Chancellor participating in the ad hoc selection commissions, we favour the commissions providing the Lord Chancellor a short-list of three candidates to choose from, each candidate having been identified by the commission as well qualified and suitable for appointment. This allows for an appropriate degree of executive input by providing greater scope for the Lord Chancellor to promote judicial diversity, whilst also maintaining merit-based selection. It also maintains the Lord Chancellor’s role as a “back-stop” in case of error or malpractice.
  • There should be no serving Justices of the Supreme Court on the panel that selectsany of the Justices (including the President and Deputy President). It is inappropriate for any members of the court to be directly involved in the selection of the other members.
  • A consistent theme in our interviews is that the Constitutional Reform Act is rigidand overly prescriptive. Several interviewees have cited the stipulation of the number of Commissioners in Schedule 12 as an example of this, and hence we welcome the proposal for greater flexibility in determining the composition of the JAC. We agree with the suggested approached to delivering changes to the appointment process.
  • As indicated at paragraph 2, we believe that there are good reasons for involvingParliament in the appointment of senior judges (e.g. the Justices of the UK Supreme Court, the Lord Chief Justice and the Heads of Division). Statements of our views on the scope for parliamentary involvement in judicial appointments and on the dubious strength of some of the arguments made against such involvement can be found in the written evidence we supplied to the House of Lords Constitution Committee as part of its inquiry into the judicial appointment process.

Read the full submission »

Judicial Independence and Parliament

The Judicial Independence Project recently held its third seminar for professionals (judges, politicians, civil servants and journalists, amongst others) on the topic of ‘Judicial Independence and Accountability: The Role of Parliament’.

The discussion focused on the relationship between Parliament and the courts and reference was made to the idea of ‘comity’ as the basis for this relationship: mutual respect combined with distance. Some worried, however, that comity might freeze relations so that there is little communication between both sides. It was noted that there is no constitutional bar to political criticism of the judiciary. It was generally agreed that criticism (even unfair criticism) does not affect the independence of judges.

Several speakers emphasised also that the high profile breaches of super-injunctions and anonymised injunctions by parliamentarians in 2011 were not breaches of the sub judice rule but rather breaches of court orders which are not captured by that rule. Injunctions of this kind raise different issues to sub judice and a new rule may be required.

The seminar was run under Chatham House Rule, but we have prepared a short anonymised note of the discussion.

Read the seminar note