The Report of the Special Rapporteur on the Independence of Judges and Lawyers

1. Introduction

The subject of the following article is the Report of the Special Rapporteur on the independence of judges and lawyers (‘Report’) issued on 24 March 2009. The report was endorsed by the Human Rights Council (‘HRC’) during its 12^th session in October 2009. The focus of the following statements will be on the parameters identified by the Rapporteur as being necessary to effectively guarantee the independence of judges. Afore the mandate and the nature of the principle of judicial independence will be shortly highlighted.

2. Mandate of the Rapporteur

The office of the Special Rapporteur was established through resolution 1994/41 of the Commission on Human Rights (‘UNCHR’), based primarily on a West-/East-European initiative.[5] With this creation the UNCHR for the first time went beyond its practice of establishing Special Rapporteurs to monitor human rights protection and instead made a structural principle of national constitutional law the object of investigations by a thematic procedure. The mandate laid down in the founding resolution encompassed (I) the inquiry into substantial allegations, (II) the identification of attacks on the independence of the judiciary and progress made in protecting and enhancing the independence, and (III) the providing of concrete recommendations and proposals with a view to protecting and enhancing the independence of the judiciary. The Rapporteur is hence entitled to address individual cases upon complaints he receives, if they concern the independence of the judiciary. However, different from the contents of other similar resolutions establishing special procedures, the Rapporteur was not expressly entitled ‘to seek and receive information’. Yet the wording ‘to inquire’ (para. 3(a)) suggests that the Rapporteur is merely barred from seeking information on his own will or motion (sua sponte), not from gathering material in support of an alleged violation brought to his attention. The task of identifying ‘progress achieved in protecting and enhancing [the judiciary’s] independence’ makes the characterization as a thematic rapporteur overly inadequate. But making use of the Rapporteur also as a study mechanism is indeed in line with the subject of independence of the judiciary, which must be appropriately analyzed not only on an individual but also institutional level. The mandate was equipped with a three-year tenure, common for comparable thematic or country specific procedures. In June 2008 the mandate was extended by resolution 8/6 of the HRC to also encompass the identification of and the making of concrete recommendations on ways and means to improve the judicial system, to apply a gender perspective, to cooperate with other relevant UN bodies and to report regularly to the HRC and to the UNGA. The report presented here is a result of this duty to report.

3. The Nature of the Principle of Judicial Independence

The Rapporteur assumes, without describing any underlying legal analyses, that the principle of judicial independence ought to be seen as international custom and a general principle of law recognized by the international community, respectively, in the sense of Art. 38(1)(b) and (c) ICJ Statute, and as a treaty-based obligation. As this position by no means is self-evident, it deserves some explanation before the details of the principle, as the Rapporteur describes them, will be analyzed. As the founding of the principle on treaty obligations is subject to significant limitations, both ratione materiae and territorial, it is more appropriate to have a look at the arguments of customary law and general principle of law.

3.1 The Guarantee of Judicial Independence as a Rule of Customary Law

It could be justified to classify the principle as an international custom, if the necessary State practice and opinio iuris can be identified. Without providing an extensive account of State practice here, one could claim, as the Special Rapporteur did in a report from 1995, that there is a ‘coherent world profile of judicial independence’, i.e. that sufficient State practice can be identified in the legal systems of the world by constitutional and legislative means reflecting the principle of judicial independence and impartiality. However, there is usually a great discrepancy between any such normative framework provided for by e.g. a constitution and the actual implementation of the relevant provisions, i.e. ‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it’ (see the North Sea Continental Shelf (Judgment) ICJ Rep. 1969, 3, para. 77). The principle might, nevertheless, have become a customary rule by forming part of provisions protecting human rights, which themselves have the character of customary law. This argument might apply with reference to the right to a fair trial (e.g. Art. 10 Universal Declaration of Human Rights). Yet this line of argument has the disadvantage of tying the reach of the principle of judicial independence to that of the underlying principle. It does not provide the basis for defining an autonomous customary rule of a structural constitutional principle of the independence of the entire judiciary. Another line of argument, that of viewing the principle of judicial independence as forming part of a customary rule of democracy based on the separation of powers, e.g. under the influence of the changes towards democracy in the countries formerly under the influence of the Soviet Union, will likely fail due to the lack of a customary right to democracy (according to Thomas Franck the right to democratic governance is still merely an ‘emerging right’; Franck, T, The Emerging Right to Democratic Governance, AJIL 86 (1992), 46-91).

3.2 The Guarantee of Judicial Independence as a General Principle of Law

Elevating constitutional principles emanating in national legal systems to general principles of international law and thus making them binding under international law has to face the traditional rejection of the determination of a national constitutional order by international law. However, a development can be seen for example in considering the obligation of a State to environmental protection as an imperative also under international law (see e.g. Lücke, J, Verfassungsrecht, Völkerrecht und Schutz der Umwelt, Archiv des Völkerrechts 35 (1997) 1-28, 5-10). With regard to structural constitutional principles, only the idea of the separation of powers has so far come close to be regarded as such a general principle (see e.g. Doehring, K, Allgemeine Staatslehre aus der Sicht des Völkerrechts in: Haller, H etc. (Hrsg.), Staat und Recht, Festschrift für Günther Winkler (1997), 179-192, 187; Doehring denies, however, that the principle would have the character of a general principle). Yet much speaks out in favor of granting the principle of an independent judiciary the status of a general principle, primarily rooted in the consideration that the international legal order is based on certain common values. For example, the creation of a State’s monopoly of force is justified by the granting of security and stability of the law. This implies a minimum right of access to justice in order to protect fundamental rights, to which the independence of the judiciary is immanent. The same result may be reached by viewing the principle of judicial independence as serving the realization of the principle of equality, which itself has been recognized as a general principle. Only an independent judiciary can effectively prevent that e.g. a government will sit as a judge in a case where it is a party itself (the principle of nemo judex in causa sua, i.e. that no-one should be a judge in their own cause).  Hence the Rapporteur’s view that the principle of the independence of judges is a general principle of law ought to be supported. This view is maintained by the fact that inclusion of the requirement of access to an independent court in the codification of the right to a fair trial in the ICCPR (Art. 14) was not met with objections. The consequence is that every State which does not provide for an independent judiciary would be in violation of that general principle. This forms the basis for the work of the Rapporteur and makes it necessary to take a more detailed look at what this principle might encompass substantively.

4. The Promoted Guarantees

The guarantees of judicial independence listed by the Rapporteur are expressly not intended to exhaustively contain all elements having an impact on the independence of judges. For the purpose of structuring his catalog of elements the Rapporteur chose to distinguish between individual and institutional elements. This is a result of the structure of the mandate of the Rapporteur which encompasses both individual case-related investigations and obligations regarding the national judiciary as such (see e.g. para. 2(a) and (c) of Resolution 8/6 circumscribing both ‘[t]o inquire into any substantial allegations transmitted to him or her’ and ‘[t]o identify ways and means to improve the judicial system’). The references the Rapporteur uses are both universal and regional documents on the topic of judicial independence. The former include the UN Basic Principles on the Independence of the Judiciary, the Human Rights Committee General Comment No. 32 and the Universal Charter of the Judge. The latter are the Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe, the Statute of the Ibero-American Judge, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, and the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. In the following I will highlight some of the guarantees and underline some differences between the Rapporteur’s parameters and the mentioned documents.

4.1 Institutional Elements

Under this category the Rapporteur lists elements which have an impact on the independence of the judiciary as an institution. The Rapporteur refers to the independence of the judicial function from other branches of government, primarily from the executive, as a consequence from the principle of the separation of powers and the rule of law (UN Doc A/HRC/11/41, para. 18). He furthermore states that the principle of judicial independence must be legally guaranteed on the highest possible level; this requirement, which is taken from the Basic Principles and is also enshrined in several of the regional documents, means that the principle must be guaranteed by the constitution or, where no written constitution exists the recognition as a fundamental principle of law (UN Doc A/HRC/11/41, para. 20). With regard to the selection and appointment procedure, which has always been a delicate area for the independence of the judiciary, the Rapporteur recognizes that various systems may be suited to ensure the selection on the basis of integrity and ability, characterized by transparency and accountability and the exclusion of appointments for improper motives. Possible models include (1) political appointments (selection by the legislative or executive branches of power), (2) appointments by popular elections, (3) corporative appointments (by bodies composed of judges only), (4) selection by judicial councils with plural representation, or (5) a variety of mixed systems where the nominating body is of one type (e.g. judicial council) and the one in charge of appointments is of a different nature (e.g. a political appointing body). What is more important than the actual model used is that certain underlying criteria are observed, in particular the observation of objective criteria in the selection of judges (e.g. qualifications, integrity, ability and efficiency) and that rejections of recommendations of an independent nominating body should only be made exceptionally. With regard to the budget the Rapporteur follows the established rules that sufficient resources must be provided for the judiciary to properly perform its functions and that already allocated funds may only be reduced with the consent of the judiciary. The assignment of court cases should follow an objective procedure and be a matter of internal judicial administration; yet the Rapporteur does not demand that a case may not be withdrawn from a particular judge without valid reasons (cf. e.g. Principle 1(2)(f) Recommendation No. R (94) 12). Several of the referential documents mention as a separate issue that the judiciary shall have jurisdiction over issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted to it is within its competence (cf. e.g. Art. 4 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa). This is not made a subject by the Rapporteur.

4.2 Individual Elements

With regard to the elements that have an impact on the individual status of the judges, the Rapporteur focuses very much on the tenure and the idea of fundamental irremovability. In his view judges should have a guaranteed tenure until a mandatory retirement age or the expiry of a term of office. With this he is concurring with the Basic Principles (principle 12) and the European and African regional documents. He identifies correctly that a short term weakens the judiciary and it thus seems only consequential for him to request, as he did in his country reports for e.g. Kyrgyzstan and Tajikistan, that gradually life tenures should be introduced (see e.g. UN Doc. E/CN.4/2006/52/Add.3, para. 84). Removability must be restricted to cases of objectively verifiable concerns, such as incapacity to perform the functions of a judge. Personal immunity, both from civil suits and from criminal liability must prevail. Any rules on the lifting of immunities in the favor of accountability must be detailed and carefully drafted. The remuneration of judges must be guaranteed by law and be adequate. The Rapporteur underscored the problem observed in numerous countries following from the delay in payment and the difference between different levels of judges; yet he fails to separately deal with the necessity of guaranteeing judges a pension. In many international documents this has been singled out as a distinct concern. Closely connected to the question of guaranteeing a pension are other conditions of service, such as housing and transportation which are not expressly dealt with by the Rapporteur, although some international documents, such as the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, have identified this as a problem for the independence of judges. He moreover defines adequate training not only as a necessary precondition to be selected for judicial office but also continuing training as a right of the judge and an obligation of the judiciary. Another important topic that the Rapporteur does not deal with is the regulation of any outside activities allowed to be exercised by judges while in office.

5. Summary and Conclusion

The report is not legally binding; neither in the form of a document issued by the Special Rapporteur nor following its endorsement by the HRC. Considering that the reports of the Rapporteur so far never attempt to identify any list of standards on judicial independence, but instead primarily focused on reporting on country visits and identifying individual issues that are of interest from the viewpoint of protecting the independence of judges, the report is a novelty. It deserves in my view credit for once again strengthening the standing of the principle of judicial independence as a binding obligation even under international law, although I would personally be more cautious with calling the principle even a customary rule of international law. But this optimistic stance of the Rapporteur ought to be seen in the light of the political nature of his mandate. One detail that should be addressed regarding the elements the Rapporteur identifies is that he often speaks of an ‘independent organ’ which in various contexts could help to secure judicial independence. For example regarding decisions on judges’ promotion, selection and appointment, judicial budget, training of judges etc. Yet the Rapporteur does not in his final recommendations endorse e.g. the creation of judicial councils or any other body. Only the future will tell what the preferences of the Rapporteur are and if the creation of judicial councils in charge of much of the administration of the judiciary is to be seen as favorable.

The elements identified by the Rapporteur can and should be seen as an incomplete catalog, and their formulation does even seem a bit puzzling when compared to the vast number of documents that are already available on the topic. Two reasons may nevertheless justify their codification in the report: (I) Firstly, the topic is one that is highly topical and will remain so in the future. Judicial independence is not something that is once and for all established, but it is in need of constant monitoring so as to identify and mobilize protection against old and new threats that may arise from the particular contexts of the national legal systems. (II) Secondly, the concretization of what the different parameters of judicial independence involve, may serve the purpose of producing a practical working-framework for the Special Rapporteur himself. The Rapporteur, Mr. Despouy, refers explicitly, in defining the parameters, to the fact that this is done in his last report. Although in the final recommendations of the report it is stated that the set of principles thus elaborated ‘may serve as a reference to all Member States’, the immediate addressee of them might rather be the mandate itself, in its future work to monitor if States comply with international standards. As the mandate of the Rapporteur was extended until 2011 it will be interesting to follow if and how the Rapporteur will apply his own standards.