Jeff Smith, representing JANZ recently attended, a Zoom webinar on the situation in Poland as viewed a year after The March Of 1,000 Robes. JANZ wrote about this in August 2020. You can find the article here.
This march was an event where Polish judges, joined by brethren from other EU countries, marched from the Warsaw Courts of Justice to parliament to demonstrate the unity of the judiciary about judicial independence. Behind this was the popularist Law and Justice party, amending the constitution to remove judicial immunity. This so-called ‘muzzle law ‘ has seen disciplinary proceedings taken against judges, with some imprisoned. One of those prosecuted secretly recorded a message for the webinar, and several others spoke.
Current context
At the same time, there are issues arising for the Romanian Magistry, with a recent article entitled 900 Days of an Interrupted Siege upon the Romanian Magistry: Survival Guide. In Turkey, judges have been imprisoned and aid forbidden to their families. We have also heard recent stories of the shooting of judges in Afghanistan.
If these events seem remote from us, then some of you may have heard from Sally Cahill QC, who is with the Crown Court in England, when she visited New Zealand. She told of the dire situation the judiciary in England is currently in. You may have heard in the last few days that, as a result of Covid-19, the backlog of cases has now expanded significantly, and it is taking several years for cases to be heard.
Of probably greater dominance in our minds are the events that have occurred over the last few months in America, with the constant repetition of information that has not been upheld in any court.
History is not immutable
During the webinar, it became clear that the terms of constitutions, laws, or even practice over many centuries are not immutable. With the rise of populism, the arguments for the continuity of the legal system and the benefits this gives for stability and equal conduct between citizens has become less appreciated.
The webinar was particularly interesting because the speakers were focused on what it is that makes for an independent judiciary. It has, of course, been the catch-cry of (particularly American) jurists, echoed by many others around the world, that constitutional entrenchment, democratic elections, and security of tenure guard the independence of the judiciary. What became clear during this discussion was that these things in themselves do not guarantee the independence of the judiciary. Pressures have increased upon the population within countries, including increasing inequality, economic recession, and influxes of immigrants. The rise of populism has seen a politicisation of the legal system and the consequent derogation in the role of the judiciary, with it becoming the subject of manipulation.
On the other hand, there are several governments and a number of authorities throughout the world who have strengthened their authoritarian role and, in this way, made the judiciary directly subservient to the political will of the ruling group.
Independence being taken for granted
What should now be clear to us, even in New Zealand, is that many of the rights and freedoms we took for granted cannot be assumed, particularly in times of significant stress. Nor is it simple for us to articulate what judicial independence comprises. Some of us might point to the District Courts Act and the Superior Courts Acts as evidence of protections, but these of course are simple statutes that can be changed at any time. Other conventions such as those against reduction or changes in terms of conditions during tenure are also, again, both conventions and statutes.
The template for judicial independence
As I listened to the discussions, a number of the speakers suggested a number of factors that they considered contributed to judicial independence. Rather than speaking of constitutional, statutory, or conventional protections, this turned rather to those features of an independent judiciary.
I would like to suggest that we should commence a discussion, both nationally and internationally, to try and identify the features of an independent judiciary. An independent judiciary is not an end, and it clearly must be seen as a component of the wider society in which it exists. I suggest (paraphrasing one of the speakers on the webinar, President of the European Association of Judges Jose Matos) the role of the independent judge is to “serve their fellow citizens, their relationship with state powers, to guarantee the priceless and precious guarantee for the anonymous citizens of any country”.
Secondly, judges “defend the rule of law, rather than the rule of men”. As I understood Mr Martos, this is to mean all citizens can expect equal treatment in the application of that law in any free and democratic society. Judges are to be servants of what is expressed in law rather than the demand of those who may be power-seeking a particular outcome. He goes on to note it should be rule of law rather than by law.
Essentially, he says authorities must listen to the judicial voice ,which is “humble but resilient, serene but determined”. I again have taken this to include the need for the application of logic and a reasoned approach to the application of the wording of laws to the circumstances.
A third feature was based on another quote from Edward Couture, that “when judges are afraid, no citizen can sleep peacefully”. He describes the removal of the powers of the judiciary and unceasing disciplinary procedures as a “treacherous culture of fear”.
The features of an independent judiciary
This has caused me to consider, in some detail, what might be the features of an independent judiciary, so that, firstly, we:
recognise such a system; and
we can examine our own system against those criteria.
I suggest a list, to be refined and expanded, as a basis for discussion and thought:
transparent appointment;
tacit and explicit support from other branches of government, i.e. mutual respect;
clear and concise reasoning for outcomes;
avoidance of politicization;
integrity and incorruptibility;
guarantee of income, including in retirement;
that the function of the judiciary is not controlled by or limited by the provision or funding from the government, ie an independent judicial delivery of the judicial system that must include adequate support to enable the numbers of judges and support for judges to perform their function.