In the International Bar Association’s Human Rights Institute (IBAHRI)’s latest thematic paper, Geoffrey Robertson QC reflects on some of the problems facing the ‘fragile reed’ of judicial independence across the globe, and calls on judges to speak out whenever they have reason to believe that their independence is under threat.
‘Judicial independence is fundamental to democracy and lip-service is paid to it by most states. However, it is a fragile reed, beset by problems of political appointments, government favours to compliant judges, prosecution powers over the court and the potential for misuse of the removal process of impeachment by populist politicians’ (page 3)
While the 28-page paper addresses some of the most serious threats to judicial independence – citing cases from Bolivia to Zimbabwe – the body of the paper examines some of the more ‘subtle political influences’ on the judiciary, including: difficulties of detecting or dealing with judges who are under the influence of, or bending to the will of, the executive; confusion associated with methods of ‘impeachment’ or removal of senior judges; pressures on courts to cut costs in times of austerity; and the limited remedies available, both domestically and internationally, against governments that seek to influence judges according to their political will.
Within this context, Mr Robertson QC writes that ‘devotion to the rule of law’ and the ‘duty to defy the state’ calls for great courage: ‘Reprisal can come from a government-incited mob (in Zimbabwe, magistrates who have acquitted Mugabe critics have had their houses burned down) or a public dismissal from office (in Sri Lanka, the fate of Shirani Bandaranayake) or, more commonly and sinisterly, secret threats not to renew judicial contracts or to post the judge to an obscure court or simply to dismiss or overlook for promotion those jurists considered by politicians in power to be “unreliable”’ (page 26). Mr Robertson QC adds, ‘Those [judges] who do their daily, often plodding, duty without fear or favour are the mainstay of democracy, while those who do it despite the threat of danger to their lives are truly heroic’ (page 25).
The thematic paper, the fourth in the IBAHRI series, also argues the need for investigative journalism and the ability to criticise ‘bad judges’, in order to fully safeguard judicial independence. Mr Robertson QC writes, ‘There remains a lingering attraction for judges in Europe and elsewhere to cling to the power to punish their critics. This can be seen, most lamentably, in some of the decisions of the European Court of Human Rights, which applies a Convention that makes “freedom of expression” under Article 10 subject to an exception for “maintaining the authority and impartiality of the judiciary”. Instead of confining this exception to cases where attacks on judges are intended to put pressure on them to decide a case in a particular way, some decisions have upheld convictions of editors for making fair and accurate condemnations of biased or politicised judges’ (page 24).
IBAHRI Director Dr Phillip Tahmindjis AM commented, ‘This thematic paper provides a thought-provoking contribution to discussions surrounding judicial independence. Mr Robertson QC captures the complex and delicate nature of some of the problems facing the independence of the judiciary across the globe today.'
Click here to download Judicial Independence: Some Recent Problems