Checks and balances: independence of judiciary and parliaments

20 Jun 2017

“It’s about building people’s confidence in the courts,” explained IDLO Director-General Irene Khan on the topic of why judicial independence matters. “What are the issues of independence, integrity, approach, principle, ethics that build people’s trust in the judiciary?”

How parliaments and the judiciary can maintain independence with one another and with the executive branch of government – while respecting the boundaries of their mandates – was the subject of a high-level panel discussion in Geneva organized by IDLO in partnership with the Inter-Parliamentary Union (IPU) and the Albert Hirschman Centre on Democracy at the Graduate Institute.

Timed to mark the presentation of the first report by the new United Nations Special Rapporteur on Independence of Judges and Lawyers, Diego García-Sayán, the event featured international voices from Supreme Court Justices of Uganda and Tunisia, as well as perspectives from the UK Parliament and academic centres in Switzerland and the United States. 

As an example of the real-world implications, Ms. Khan noted that in Kenya, where concerns about the independence of the judiciary deterred candidates from using the courts to adjudicate electoral disputes, the perceived illegitimacy of the 2007 general election result led to widespread violence. In 2015, following constitutional and judicial reform supported by IDLO, the Kenyan judiciary was able to resolve the electoral disputes effectively and the elections took place peacefully.

The Special Rapporteur, having presented his report to the UN Human Rights Council earlier that same day, drew the connection between human rights, democracy and rule of law, and the independence of judges and lawyers. He noted that the Council has repeatedly reaffirmed the importance of an independent judiciary, which he defined as impartiality and independence from improper influences – whether political, economic or extra-legal forces such as organized crime.

The separation of powers is a fundamental element of good governance and the rule of law. And while the balance of powers between the judiciary and other branches of government is inherently delicate, speakers noted the increasing threats to independent judiciaries in recent months as the political environment in some countries has become ever more polarized.

“What should be healthy tension is sometimes amplified beyond proportion,” stated IPU’s Rogier Huizenga. “We see political leaders speak out publicly, without restraint, against judicial decisions that don’t go their way. We see situations in which the work of parliament or individual parliamentarians is made difficult because they are subject to politically motivated legal proceedings.”

An independent judiciary is essential to preventing executive initiatives that are outside the bounds of national constitutional frameworks or inconsistent with international standards. In a prominent public interest case in Uganda, a member of parliament challenged the President’s appointment of a retired judge as interim Chief Justice, arguing that it was unconstitutional. A judicial panel reviewed the case and, in a majority ruling, put a stop to the appointment.

Speaking about the case on the panel, the Ugandan justice responsible for writing its lead judgment, Hon. Lady Justice Prof. Lillian Tibatemwa-Ekirikubinza, commented on the deliberations that went into the ruling, as well as about its aftermath. “Later on, I was actually promoted to the Supreme Court,” she said. “It was the President who promoted me, which shocked the public because everyone had thought that would be the end of my career.”

Considering the flipside of the argument, Ms. Khan asked the panellists whether too much judicial independence is a bad thing. Judiciaries that encroach on the roles of the executive and legislative branches of government are often accused of ‘juristocracy’. Professor Nico Krisch of the Graduate Institute responded: “In many courts, by necessity, judges are engaged in creative interpretation if the constitution isn’t specific. Judges become lawmakers when they do this, which raises all kinds of questions of accountability.”

The discussion also turned to the judicial selection and appointment process. In many countries, parliaments hold a measure of control over the judiciary through the selection process as well as through budgetary authority. In countries with dysfunctional legislatures and an overreaching executive, judicial appointments and confirmation processes may be unduly politicized.

“For many years I have tried to invent a perfect system for the appointment of judges without political intervention,” said Special Rapporteur García-Sayán. “I have not been able to invent it. But transparency and public participation seem to be part of the idea.”

The discussion was organized with the co-sponsorship of the Permanent Missions of Italy, Japan, Mexico and the United Kingdom in Geneva.

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