Tek Narayan Kunwar
Introduction
The principle of an independent judiciary, as guaranteed by international and regional instruments for the promotion and protection of human rights, is essential to the existence of the rule of law. To guarantee impartiality in applying legal standards and ensuring respect of citizens’ rights, the Judiciary must be independent of the Executive and the Legislative powers. The international and regional documents of human rights have guaranteed the independence of the judiciary. Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European,[1] American[2] and the African mechanism of Human Rights[3] require the states to guarantee their citizens a fair, public trial before an independent, impartial court.[4] To guarantee and reinforce judicial independence, most of the countries in Europe but also in civil law countries in Latin America, Africa, Asia and the Middle East, have created an institution whose role is to guarantee the independence of the Judiciary. The name of the institution differs from one country to the next.
Although intended as a guarantee of independence, the Judicial Council, in some cases, can be more of a barrier that “an avenue to judicial independence and accountability, particularly in countries where the Judiciary is controlled by the Executive.”[5] This means that the composition of the Council and the scope of its functions and prerogatives impact its real capacity to guarantee the independence of the Judiciary.
Criteria defined with reference to various international and regional instruments and documents are available to determine to what extend the Judicial Councils can contribute to strengthening the independence of the Judiciary. The United Nations Basic Principles on the Independence of the Judiciary do not explicitly refer to the judicial councils, but emphasizes that the selection and career development processes for judges must be independent of the Executive and the Legislature[6]. Other international enactments, such as the Guidelines and Principles on the Right to a Fair Trial and to Legal Assistance in Africa[7], the Universal Statute of the Judge[8] the European Charter on the Statute of the Judges[9] or the Statute of the Judges in Africa[10], establish the conditions in which these councils can effectively contribute to establishing and securing an independent judicial system. These provisions dwell on the non-interference of the Executive in the composition of the Council or the method for selecting its members. They also establish the attributions and prerogatives that enable the Council to play its due role in the judges’ career management.
The Judicial Council, like the judiciary itself, is an important institution that should be structured and operate in a transparent, accountable manner. In other words, Judicial Councils are bodies that are designed to insulate the functions of appointment, promotion, and discipline of judges from the partisan political process while ensuring some level of accountability. Judicial councils lie somewhere in between the polar extremes of letting judges manage their own affairs and the alternative of complete political control of appointments, promotion, and discipline. The first model of judicial self-management arguably errs too far on the side of independence, while pure political control may make judges too accountable in the sense that they will consider the preferences of their political principals in the course of deciding specific cases.
Generally in practice, Judicial Council has, as its mandate, responsibility to ensure a high quality of judicial service in the nation. Council carries out this mandate through the performance of its functions set out in the Constitution and related Act. One of the major functions of Judicial Council is receiving and assessing applications for the position of judge of the country. Judicial Council is also responsible for recommending the appointment of justices and judges of different tires of the courts. Another important function of Council is receiving and reviewing complaints about the conduct or neglect of duty or the incapacity of a judge or justice.
Models of Judicial Council
There are a wide variety of models of Judicial Councils, in which the composition and competences reflect the concern about the judiciary in a specific context, balancing between demands for accountability and independence. It can be studied within two basic legal systems, i.e. civil law jurisdictions and common law jurisdictions.
In Civil Law Jurisdictions:
A common configuration for countries in the civil law tradition, which utilizes a bureaucratic model of the judiciary, is some version of appointment by a judicial council for lower level judges, with a more political process being used for the supreme or constitutional court.
The French-Italian model:
It can be introduced as councils in civil law jurisdictions. France established the first High Council of the Judiciary (Conseil Superieur de la Magistrature) in 1946.[11] It was in charge of managing judicial personnel but only a minority of members were themselves magistrates elected directly by fellow judges.[12] Italy’s judicial council (Consiglio Superiore della Magistratura), created in 1958, was the first to fully insulate the entire judiciary from political control, a model that has been followed in other judicial reforms.[13] Spain[14] and Portugal[15] have slightly different models introduced after the fall of the dictatorships in the mid 1970s, in which judges constitute a significant proportion of the members. These councils have final decision-making in all cases of promotion, tenure, and removal. Judicial salaries are also technically within their authority but usually tempered by the department in charge of the budget. The power of high-ranking magistrates has been dramatically reduced in most of these countries (as a consequence of junior-ranking judges being appointed to the judicial council) and strong unions or judicial associations have emerged.
The French and Italian cases were motivated by a concern about excessive politicization and consequently granted extensive independence to the judicial power. After some time, however, courts became more extensively involved in politics and accountability issues came to the fore. For example, in France, reforms in the 1990s were clearly driven by political events that have empowered the judiciary. Although the Fifth Republic maintained the traditional subordination of the French judiciary to the executive and the legislature, and the rather submissive judiciary exercised individual and collective judicial self-restraint, conflicts began to develop in the late 1960s and 1970s.[16]
The consolidation of judicial review by the Constitutional Council in the mid-1970s had a major and enduring impact. The sharp increase in litigation, both civil and administrative, the criminalization of many activities, and the extension of the scope of application of the European Convention of Human Rights, all served to increase the influence of the French judiciary. At the same time, several political scandals gave the judiciary an important influence over politics. France, with its tradition of viewing the judiciary as a faceless collectivity dispensing justice, was now faced with a new kind of celebrity.[17]
Latin America and other developing countries
The French-Italian model has been exported to Latin America and other developing countries.[18] Indeed, the World Bank and other multilateral donor agencies have made judicial councils part of the standard package of institutions associated with judicial reform and rule of law programming.[19] Efforts to produce model “best practices” have ensured much replication and refinement of the judicial council model. For example, the Association of European Magistrates for Democracy and Freedom (MEDEL) produced a Additional Protocol to the European Convention on Human Rights, called the Elements of European Statute on the Judiciary. This model statute states that there shall be a supreme council of magistracy, at least half of whom are judges and also including appointees of the parliament. The model statute also declares that the supreme council will produce a budget for the courts, manage the administration, and control recruitment, assignment and discipline of judges, thus guaranteeing judicial independence. The Council of Europe made a similar recommendation in a document published in 1994.[20] Other international organizations have followed suit.26
In Common Law Jurisdiction
In the common law systems, the judiciary is not a “career judiciary” in the civil law sense, there is less interest in having independent commissions handle discipline, promotions, and reassignments, and greater emphasis on initial appointments. The basic institutional design, however namely setting up non partisan mixed bodies to screen and select judicial candidates is similar to the judicial commission. Within the common law world, the case of Singapore is also an interesting one that illustrates the dangers of assuming that judicial involvement in appointments ensures complete independence. There is a Legal Service Commission in Singapore, but its role is somewhat limited.[21] The president appoints judges of the Supreme Court on the recommendation of the prime minister after consultation with the Chief Justice. The Legal Service Commission supervises and assigns the placement of the subordinate court judges and magistrates who have the status of civil servants; however, the president appoints subordinate court judges on the recommendation of the Chief Justice.[22]
The American Experience
In many American states, concern over traditional methods of judicial selection (either appointment by politicians or direct election by the public) led to the adoption of “Merit Commissions” to remove partisan politics from judicial appointments and base selection on merit. Merit Commissions can be seen as analogous to judicial councils, though their scope of activity is more limited. Sometimes called the “Missouri Plan” (although some assert that it was first adopted in California) or “Merit Plan,” this system features a non-partisan judicial selection commission composed of judges, lawyers, and political appointees.[23] The inspiration for this institution was a famous 1906 speech by Roscoe Pound and can be seen as consistent with early twentieth century view in the value of technocracy and administrative insulation from politics. The Merit Commission is responsible for nominating judges, exclusively in some states and in other states sending a set of candidates from which the Governor chooses appointees. Merit Plan judges are typically subject to uncontested retention elections but judges rarely lose these elections.[24] As of 1990, twenty-three states used the Merit Plan for initial appointment. Most states adopted these institutions in the 1960s and1970s.[25] A general assumption in the literature is that Merit Plan systems will expand independence. As a common law country with judges that tend to be appointed relatively late in life, the United States has little need for independent bodies to engage in promotion of judges. Thus the commissions play a relatively limited role, but focus on the crucial locus of partisan pressure.
The British Experience
The British case is of particular significance given its recent reforms to a venerable system. In 2003, the UK Government announced its intention to modify the system for judicial appointments in England and Wales. The reform was justified as advancing the twin goals of improving judicial independence and enhancing accountability and public confidence. Although the independence of the judiciary was confirmed in the Act of Settlement 1701, and since then strong norms of judicial immunity have made it quite difficult to remove judges, appointments remained in the hands of the Lord Chancellor, a senior government official.[26] The traditional view was that the Lord Chancellor was the judiciary’s representative in the government and the government’s representative to the judiciary, hence a unique office well placed to represent the view of each side. The English judiciary was never perceived to be a separate branch of government in the American sense. Moreover, a system dependent on the Lord Chancellor created a unified and hierarchical judiciary. This structure did not promote diversity of opinions since someone who did not conform to the views of the establishment was not likely to be chosen by the Lord Chancellor for a judicial post.
In 2003, the British Government announced its intention to change the system for making appointments to the judiciary in England and Wales.[27] The Constitutional Reform Act 2005 introduced several substantive changes in England and Wales, including a statutory duty on government members not to influence judicial decisions. The most far-reaching reforms were the abolishment of the Lord Chancellor with the transfer of his judicial functions (as the most senior judge in England and Wales) to the President of the Courts of England and Wales (formerly known as Lord Chief Justice of England and Wales),[28] and the creation of a new Supreme Court, with twelve judges independent of and removed from the House of Lords with their own independent appointment system. And crucially, a Judicial Appointments Commission was created, responsible for recommending candidates for judicial appointments on a more transparent basis and based solely on merit.
The Judicial Appointments Commission is responsible for selecting judges in England and Wales. It is a non-departmental public body which was created on 3 April 2006 as part of the reforms following the Constitutional Reform Act 2005. It took over a responsibility previously that of the Lord Chancellor and the Department for Constitutional Affairs (previously the Lord Chancellor’s Department), although the Lord Chancellor retains responsibility for appointing the selected candidates. The Lord Chancellor has also given up his other judicial functions, including the right to sit as a judge in the House of Lords.
The Judicial Appointments Commission is launched its new system to select High Court judges on 31 October 2006, looking for candidates to fill 10 vacancies and 15 for a reserve list. Candidates submitted a nine-page application form, and shortlisted candidates were interviewed. All candidates were to be judged on merit alone, measured by five core qualities: intellectual capacity; personal qualities (integrity, independence, judgment, decisiveness, objectivity, ability; willingness to learn); ability to understand and deal fairly; authority and communication skills; and efficiency.
Judicial self-appointment:
In some countries in the common law tradition, the judiciary has become effectively self-appointing. In India, the higher judiciary is appointed by the President after “consultation” with the Supreme Court and this has led the judiciary to be largely self-appointing in practice. Systems of judicial self appointment also include those in which judicial councils are composed entirely of judges.[29] The Iraqi Higher Judicial Council is such a body. Another example of a largely self-appointing judiciary is that of Japan. Although the Supreme Court is appointed through a political process, the Supreme Court Secretariat has total control over lower-level judicial appointments, training, promotion and discipline. Some have criticized this combination as allowing political control over the whole judiciary through the Supreme Court.[30] Furthermore, individual judges have a great incentive to conform, and are thus less independent from higher level judges. Indeed, this may be a general feature of systems of judicial self-appointment.
Composition of Judicial Council
The membership of the Judicial Council varies greatly from country to country and depends on the political reasons which motivated its creation. There is an emerging international consensus that Judicial Councils should have a broad-based membership, which includes a majority of judges. The most successful models appear to be those with representation from a combination of State and civil society actors and with broad powers sufficient to promote both judicial independence and accountability. Councils also vary in composition. The council is composed of four possible types of members,
(i) Judges,
(ii) Members of other government bodies or their appointees,
(iii) Lawyers, and
(iv) Civil society members
Judges on the Council are typically appointed by the Supreme Court or by other courts, while lawyers are appointed by the law society/bar association. Members of government bodies are typically appointed by their organizations. Civil society members are appointed by government.
One of the main reasons for creating Judicial Councils has often been related to the need to insulate the judiciary and especially the appointment process from external political pressure. In order to achieve this objective, there is a general consensus that judges should represent a majority of the Council’s membership. International and regional instruments refer to the membership of judicial councils as including “substantial judicial representation”[31], “representatives of the higher judiciary and the independent legal profession”[32]20, “a majority of members drawn from the senior judiciary”, “members … selected by the judiciary”[33] or “judges elected by their peers”[34].
A general assumption in the literature is that a judicial majority on the council will ensure independence. However, even when the judges are not a numerical majority in the council, they might have a dominant or preponderant role for three reasons. First, most members of a judicial council must rely on information provided by the judiciary itself. Second, a judicial council does not exert direct control over the judiciary (which would hurt the independence of judiciary) but exercises a configuration of powers that mix authority and accountability. This configuration is usually complex and full of uncertainties that usually call for expertise by judges. Third, judges may have particularly strong incentives to represent judicial interests on the council: after their service on the council, judges will return to their professional careers inside the judiciary whereas the non-judges will go back to their careers outside of the judiciary, which may or may not have any relationship with judicial management issues.
Duties and Responsibilities of Judicial Councils
Specific duties and responsibilities have been delegated to Judicial Councils, especially in the appointment and disciplinary processes, but their powers vary from country to country in terms of both scope and effects. In some cases, the lack of clarity of the scope and effect of Council functions, at times combined with a failure to
fully transfer powers to newly created Councils, has led to disappointing Council performance. “In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute of the European Charter on the Statute for Judges envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the Judiciary.”[35] The Judicial Council is the authority responsible for recruitment, career management and discipline of judges.
Judicial Councils operate in very different legal environments and, therefore, we need to understand the particularties before we can compare the role and the powers of judicial councils across countries. Specific duties and responsibilities have been delegated to Judicial Councils, especially in the appointment and disciplinary processes, but their powers vary from country to country in terms of both scope and effects. In some cases, the lack of clarity of the scope and effect of Council functions, at times combined with a failure to fully transfer powers to newly created Councils, has led to disappointing Council performance. There are 5 major areas that Judicial Council has been performed its function as an important responsibility.
a. Selection and Appointment of Judges
b. Judicial Career
c. Discipline and Ethics
d. Court Administration and Budgetary Control
e. Policy Functions
a. Selection and Appointment of Judges
The selection of judges is a central factor in most theories of judicial independence.[36] The European Charter on the Status of the Judge recommends that all decisions affecting the judicial career including the selection, appointment and promotion of judges should involve a judicial council, defined as an authority independent of the executive and legislative and composed of a majority of judges.[37] Article 9 of the Universal Charter of the Judge states that “the selection and each appointment of a judge must be carried out according to objective and transparent criteria based on proper professional qualification… selection should be carried out by an independent body that includes substantial judicial representation.”[38] Two criteria must also prevail in the recruitment of judges. On the one hand, the responsibility for selecting judges should fall to the Judicial Council. On the other hand, the Council must act according to pre-established criteria, including the law, and base its decisions on the qualifications of candidates.
In cases in which Judicial Councils are competent to select judges, it is important to have clearly defined objective criteria applied in a transparent manner. If there are no objective criteria, transferring selection powers to the Judicial Council may only reproduce, or worsen, discretionary and politicized judicial appointments. For example, in Peru, the selection criteria are highly subjective due, in part, to the lack of indicators and guidance for Judicial Council decisions.
Most countries have granted their Judicial Councils some powers in the judicial selection process, though only a few of them have the final word in the appointment process. In many Latin American and Eastern European countries, the Council participates in the selection process of Supreme Court and lower courts by reviewing the merits of candidates and proposing candidates to the appointing authority. In other countries, the Council participates only in the selection of some judges, either lower court judges or Supreme Court judges, or has no
role at all in the process.
Appointment Process
In many countries, one of the major functions of the Judicial Council is assessing applications for the position of judges and justices of the all levels of the courts. Judges and justices of these courts are appointed by the designated authority on the recommendation of the council.
When a judge is to be appointed, the Council is required to submit a list of qualified candidates to the authority. The council recommends appointment of a candidate from this list. In some jurisdictions, when a judge is to be appointed, the Council must advertise the position in newspapers. The Council must also give notice of the position to the Law Society and, as it considers advisable, to other potential candidates.
In such practice, applicants first complete an application form and return it to the Judicial Council. All applications are reviewed by the Judicial Council. The Judicial Council considers references from a number of sources, including a report from the relevant Law Society on the applicant’s standing, interviews members of the legal community regarding the reputation and suitability of the applicant and from judges who are familiar with the applicant. After reviewing this material, Judicial Council decides whether a candidate will be interviewed by Council. After interviewing the applicant, the Judicial Council determines the acceptability of the candidate. Following this process, Council submits a list of qualified candidates to the constitutionally prescribed authority, for example it may be the head of the state.
Candidates are informed that they will not hear about the outcome of their application unless they receive an offer of a position by the Council. Judicial Council assesses each applicant against the qualifications set out the Constitution and Act. Normally, the applicant must meet the following qualifications:
- normally some years in the practice of law. Those with less legal practice are considered if they have a range of related experience;
- is a member or is qualified to be a member of the Bar;
- is under 65 years of age;
- the need to have a bench which is demographically representative of the community it serves;
- the experience and maturity of the applicant;
- the applicant’s record in the community;
- additional criteria based on the needs of the court or determined by the Constitution.
b. Judicial Career
1) Judicial education, training and evaluation:– The Consultative Council of European Judges formally recognizes the Councils’ responsibility for training, stating that “the responsibility for organizing and supervising judicial training should in each country be entrusted not to the ministry of justice or any other authority answerable to the legislature or the executive, but to the judiciary itself or preferably to the Council for the Judiciary.”[39] In some countries, the Judicial Council has been entrusted with oversight of judicial education and training. Less frequently, it also plays a role in the evaluation of judges. For example, in El Salvador, the Judicial Council “carries out regular evaluations of judges and runs the Judicial Training School”.[40]
2) Judicial promotion– The principle of tenure security for judges is one of the main guarantees of the Judiciary’s independence. Protecting the judge from any dismissal, re-assignment or removal outside the objective criteria defined by law, it protects members of the judiciary against the influences of both Executive powers and private interests. This principle is guaranteed in many international and regional texts[41] and in the constitutions and laws of most of the countries.[42] Thus, Article 8 of the Universal Charter of the Judge states, “A judge cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure.” The intervention of the Council during this process is still insufficient when it occurs in the absence of a legal framework defining the conditions for the transfer of judges. In some countries, such as Costa Rica, El Salvador, Guatemala, and Hungary, the Judicial Council is involved only in the selection of judges. In others, such as France, Italy, Bulgaria and Romania, it also participates in the promotion process.
c. Discipline and Ethics
Another area in which many Judicial Councils have been granted powers is the Disciplinary process. The Universal Charter recommends that disciplinary action should be carried out by independent bodies that include substantial judicial representation”.[43] In order to protect judicial independence, disciplinary actions should be carried out by an independent judicial council that only takes action in the event of disciplinary misconduct defined by law.[44] The European Charter on the statute for judges provides that “the dereliction by a judge of one of the duties expressly defined by the statute, may only give rise to a sanction upon the decision, following the proposal, the recommendation, or with the agreement of a tribunal or authority composed at least as to one half of elected judges.”[45]
The idea is to insulate disciplinary proceedings from both external interference for example, from the executive or political parties and internal interference mainly from the judicial hierarchy. The Council of Europe Recommendation calls upon member states to “consider setting up, by law, a special competent body which has as its task to apply any disciplinary sanctions and measures”.[46]Accordingly, many Judicial Councils have at least some disciplinary powers. This is also explained at least in part by the fact that many Councils were created to strengthen judicial independence and balance judicial independence with judicial accountability.
Granting disciplinary powers to Judicial Councils raises questions about its membership. Indeed, in order to safeguard the independence of judges and depending on country context, it can be questionable to entrust members of the other branches of government with powers to investigate and sanction judges. However, there are ways to limit participation in the judicial disciplinary process, such as excluding non-judicial members from disciplinary proceedings. This issue needs to be given serious consideration on a country-by-country basis.
Another important issue is the right for judges to challenge disciplinary sanctions. More generally, judges faced with disciplinary proceedings are entitled to the same rights and fair trial guarantees as any defendant. In Peru, Judicial Council decisions in disciplinary proceedings against judges have been perceived as highly discretionary and are not open to appeals. Many believe this non-transparent, unaccountable process led to a number of abuses and violations.
d. Court Administration and Budgetary Control
According to the Consultative Council of European Judges, “the courts can only be properly independent if they are provided with a separate budget and administered by a body independent of the Executive and Legislature, whether it is a Council for the Judiciary or an independent agency.”[47] “Given the prospect of considerable involvement of the Council for the Judiciary in the administration of the Judiciary, transparency in the actions undertaken by this Council must be guaranteed. Transparency is an essential factor in the trust that citizens have in the functioning of the judicial system and is a guarantee against the danger of political influence or the perception of self-interest, self protection and cronyism within the Judiciary.”[48]
Some countries have chosen to transfer court administration and budgetary responsibilities to a Judicial Council, either from the Ministry of Justice or from the Supreme Court. In countries in which court administration and the judicial budget were the responsibility of the Ministry of Justice, this transfer aimed at reducing external interference, especially from the executive, in the affairs of the judiciary. In countries in which these functions were the responsibility of the Supreme Court, the objective has been to separate administrative and jurisdictional functions so that the judiciary may concentrate fully on the latter.
e. Policy Functions
Some Judicial Councils have been granted some responsibility to formulate policies and to advise the Ministry of Justice on matters regarding the judiciary and judicial independence. Advisory policy functions may play an important role in that they guarantee some involvement of the judiciary in the design of policies which are likely to affect it. For example, in Panama, the Judicial Council has the authority to recommend judicial policies and propose legislative changes.
One of the means to promote Judicial Council participation in the strengthening of the judiciary and of its independence is to grant the Council some degree of responsibility in the institutional planning and in the definition of judicial policies. To that end, the Judicial Council could be entrusted with elaborating periodic plans for judicial system development, such as drafting reports on the State of the Judiciary or supervising the implementation of judicial policies.
Judicial Councils can also play a significant role in increasing public access to information related to the judiciary either by directly releasing information through publications or diffusion to the media or by responding to public requests for information.
Complaints handling
The principle of judicial independence requires that judges and justices must be free to make their decisions based only upon the facts in a particular case and the law applicable to those facts, without outside interference. If a judge or justice errs in the application of the law or the finding of the facts in a particular matter, the result may be appealed or subject to judicial review by a higher court. The principle of judicial independence, however, does not eliminate judicial accountability. The Constitution and judge’s Act provide that judges are accountable for conduct that is outside the parameters of proper judicial conduct. Any individual who believes a judge has behaved improperly, neglected his or her duty or is impaired or diminished in his or her ability to perform his or her responsibilities, may lodge a written complaint.
There should be a proper mechanism to handle a complain over judges and justices. In this regard, any person wishing to make a complaint about may file a complaint in writing with the council.
(a) the conduct of a judge or of a justice;
(b) the neglect of duty by a judge or a justice; or
(c) any matter which may lead a person to conclude that the ability or capacity of a judge or justice to perform their responsibilities has become substantially impaired or diminished or that they are otherwise unfit for office;
On considering the complaint, the council may:
(a) dismiss the complaint if the council finds it unnecessary, scandalous, frivolous, vexatious, unfounded, brought in bad faith, or beyond its jurisdiction;
(b) refer the complaint to the chief judge to be disposed of by the chief judge in accordance with law;
(c) if the council considers that the complaint is one which should be heard but which it may be able to resolve without referring it to a judicial conduct tribunal, the council may, with the consent of the judge or justice who is the subject of the complaint,
(i) give the complainant and the respondent the opportunity to speak to the complaint in the presence of each other, and
(ii) dispose of the complaint by way of reprimand or dismiss the complaint; or
(d) order an inquiry by a tribunal.
The council may investigate a complaint as it considers advisable to determine the disposition of a complaint under law. Where the investigative committee refers a complaint to a judicial council in accordance with law, it may recommend the suspension of the judge or justice who is the subject of the complaint. The council shall determine immediately whether or not the suspension is warranted and, if it considers the suspension is warranted, it shall suspend the judge or justice until the complaint is disposed subject to any terms and conditions it considers advisable.
Nepali Experience
The Judicial Council is a unique provision first advanced by the Constitution of 1990 in Nepal and continuation in Interim Constitution of Nepal 2007 for making recommendations or giving advice concerning the appointment, transfer, disciplinary action and dismissal of judges and other matters relating to the judicial administration. The judicial council, established under the article 113 of the Interim constitution of Nepal 2007, is a body mainly responsible for making recommendations for the appointment, transfer, disciplinary action and dismissal of service of judges. Besides, it may recommend other matters relating to administration of justice.
The judicial council is composed on the chairmanship of the chief justice of Nepal. The Minister of justice and the senior-most justice of the Supreme Court are ex-officio members of the council. A senior advocate or on advocate who has at least twenty years of experience to be appointed by the chief justice on the recommendations of the Nepal Bar Association and a person to be nominated by the prime minister from amongst the jurist are other members of the council. The term of office of the member other than ex-officio is four years. They also may be removed from his/her office on the same grounds and in the same manner as has been set forth for the same of a justice of the Supreme Court.
There are some controversies on judicial council. The recent controversy relating to the functioning of the judicial council has raised a fresh debate in the political and legal arena. The council is failed to appoint judges in proper time and it is most criticized within in the judiciary.
Moreover, the judicial council is an exclusive authority for dealing with key issues related to independent judiciary and judicial administration in the country. Any sort of pressure or request upon any member of the council to work in political party or government’s line is a violation of the spirit of constitution and unhealthy criticism on judicial council, which is ultimately an attack on judicial independence.
There is no doubt, the Judicial Council in itself and in its composition has a significant meaning. As Nepal has adopting the common law system, the judicial council practice in appointment of judges is a special arrangement in the constitution which is not generally found in other common law countries with a system of where judges are normally appointed by the head of state acting on the advice and recommendation of council of ministers.
In conclusion, it is so important that why did the framers want such an arrangement in our constitution? The appropriate argument is that they wanted judiciary to be completely independent from other branches of the government, i.e. from the executive and the legislative and any government department so that the judiciary could provide a fair, independent and impartial justice and check against the power of the executive, and the excesses of this branch of government. The constitutional mechanism and composition of the council, as a separate and independent mechanism, therefore, means that there is no way for undue interference of government in the appointment of judges. Meaning, there is no room for politicizing and interfering with judicial appointments. The council system for this reason should be continuing with improvements in the upcoming new constitution.
Problems and the Way forward
Countries which have been practicing and enjoying such council system in their constitution are not completely satisfied with the function of it. There are some shortcomings in practices. To reduce those shortcomings these areas of improvements should be addressed:
Strategic & Operational Planning
The Judicial Council should have plans to review national trends, court system values, external mandates, stakeholder expectations, and other forces that shape the environment of the courts. The council should respond to these issues by setting long-range strategic goals and developing systematic initiatives to meet these goals. There are 6 accepted goals that Judicial Council could take steps to achieve these goals:-[49]
Access, Fairness, and Diversity
Courts should treat everyone in a fair and just manner. It should be guaranteed that all persons will have equal access to the courts and court proceedings and programs. Court procedures will be fair and understandable to court users. Members of the judicial branch community will strive to understand and be responsive to the needs of court users from diverse cultural backgrounds. The makeup of the nation’s judicial branch will reflect the diversity of the residents.
Independence and Accountability
The judiciary must maintain its status as an independent, separate, and equal branch of government. The independence of judicial decision making should be protected in order to preserve the rule of law and ensure the fair, impartial, and efficient delivery of justice. It should be guaranteed that the judiciary will unify in its advocacy for resources and policies that support and protect independent and impartial judicial decision making in accordance with the Constitution and the law. The branch will maintain the highest standards of accountability for its use of public resources and adherence to its statutory and constitutional mandates.
Modernization of Management and Administration
Justice should be administered by a highly qualified judicial and executive leadership team in a fair, timely, efficient, and effective manner by using modern management practices that implement and sustain innovative ideas and effective practices.
Quality of Justice and Service to the Public
The judicial branch must deliver the highest quality of justice and service to the public. In order to remain responsive to the varying needs of diverse court users, the judicial branch should work with branch constituencies to better ascertain court user needs and priorities. The branch should also employ community outreach to provide information about the judicial branch to the public, and effect programs and strategies to ensure that court procedures and processes are fair and understandable.
Education for Professional Excellence
Another important function of the Council is to ensure that both judges and justices of the peace have opportunities for ongoing education.
As the role for the justices of the court has evolved, individuals require a higher level of training as a precondition of appointment and to maintain authorization. Over the countries, the Council has supported the supervising judge in his efforts to develop a formal training process for judges and justices.
Therefore, high-quality education and professional development must be provided to enhance the ability of all individuals serving in the judicial branch to achieve high standards of professionalism, ethics, and performance. Judicial branch personnel should have access to the resources and training necessary to meet the diverse needs of the public and to enhance trust and confidence in the courts.
Infrastructure for Service Excellence
The judicial branch should enhance the quality of justice by providing an administrative, technological, and physical infrastructure that supports and meets the needs of the public, the branch, and its justice system and community partners, and that ensures business continuity.
Recommendations
While some recommendations have global application, others require some level of identification of the country-specific problems and needs before targeted reforms can be implemented or even fully designed. Solutions, and therefore the composition and role of Judicial Councils, may vary from country to country as sources of interference, loopholes and misadministration are identified. IFES has identified seven broad, international best practices for Judicial Councils as a tool to strengthen judicial independence and integrity.[50]
1. Independent, transparent and accountable:– Judicial Councils must be independent bodies and operate in a transparent and accountable manner.
2. Structure:– The structure, powers and processes of Judicial Councils must be designed to safeguard and promote judicial independence. If adequate checks and balances are not in place, the Judicial Council may become a pawn in the hands of the executive, legislative and/or powerful groups, thereby undermining judicial independence.
3. Adequate resources:– Judicial Councils must be granted adequate human and financial resources.
4. Composition:– While the exact composition of Judicial Councils varies greatly from country to country and depends on existing obstacles to judicial independence, there is an emerging consensus among judges, legal scholars and practitioners that Judicial Councils should be composed of a majority of judges and that Councils with broad representation may function more fairly and independently.
5. Judicial membership:– Judicial members of the Judicial Council should be elected by their peers rather than appointed by the legislature or executive. The selection process should be transparent and provide for civil society participation and oversight.
6. Powers:– Judicial Councils around the world have varying powers which range from judicial administration to decisions affecting the judicial career, but there is an emerging consensus that where they exist they should be responsible for the judicial selection process and contribute to the promotion, discipline and/or training of judges.
7. Monitoring and reporting:– The decision-making process of the Judicial Council should be transparent and allow for civil society participation and oversight. Mechanisms to monitor Judicial Council operations must be put in place and effectively implemented.
Conclusion
Judicial independence is a central goal of most legal systems, and systems of appointment are seen as a crucial mechanism to achieve this goal. Judges who are dependent in some way on the person who appoints them may not be relied upon to deliver neutral, high-quality decisions, and so undermine the legitimacy of the legal system as a whole. While there is near-universal consensus on the importance of judicial independence as a matter of theory, legal systems utilize a wide range of selection mechanisms in practice, often reflecting slightly different conceptions of independence. The underlying rationale for Judicial Council creation in countries like France, Italy, Portugal and Spain was the need to insulate the judiciary from the executive. Judicial Councils are granted extensive powers in the judicial career, including the selection, promotion and discipline of judges, in an attempt to limit executive interference. Strengthening judicial independence and promoting improved judicial governance through the creation of an independent body in charge of key aspects of the judicial career has also been the stated rationale behind the creation of Judicial Council.
[1] Convention for the Protection of Human Rights and Fundamental Freedoms CETS No.: 005, Treaty open for signature by the member States of the Council of Europe and for accession by the European Union Opening for signature Place: Rome Date : 4/11/195 Entry into force Place: Rome Date : 4/11/1950
[2] Signed at the Inter-American Specialized Conference on Human Rights, San Josi, Costa Rica, 22 November 1969
[3] The Charter, which was adopted on 27 June 1981 in Nairobi, Kenya, at the 18th Conference of the Organization of African Unity, entered into force on 21 October 1986.
[4] on Civil and Political Rights. Although it does not have the status of a treaty, the Universal Declaration of Human Rights, adopted by a resolution of the United Nations General Assembly on 10 December 1948, is considered to be legally binding.
[5] Judicial councils have been created for a variety of reasons. In south-west Europe, Africa, Asia and the Middle East, they were created as part of reforms to protect the Judiciary from interference by the Executive. In northern Europe and Latin America, the judicial councils were created to improve court administration and to control the Judiciary’s budget and staff. See, International Foundation for Election System (IFES), Global Best Practices: Judicial Councils: Lessons Learned from Europe and Latin America, April 2004, p.6-7.
[6] Articles 7, 10 and 13 of these Principles, adopted by the United Nations 7th Congress on the Prevention of Crime and the Treatment of Offenders, held at Milan from 26 August to 6 September 1985 and confirmed by the United Nations General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.
[7] Principles adopted by the African Commission on Human and Peoples’ Rights in July 2003.
[8] Adopted in 1999 by the International Association of Judges and unanimously approved by the Central Council of the International Association of Judges in Taipei (Taiwan) on November 17, 1999.
[9] Adopted in July 1998 at a multilateral meeting on the status of judges in Europe, organized by the Council of Europe
[10] Prepared and adopted by the Africa Regional Group of the International Association of Judges in Tunis, Tunisia, on 10 September 1995.
[11] A precursor for judicial councils can be seen in the use of formal nominations committees composed of various governmental officials. See, e.g., Constitution of Albania, 1925 (judicial nominations from special committee of judges, prosecutors, and Minister of Justice).
[12] In the Fifth Republic, the President of the Republic took over the appointments of all the members and reinstated most of the traditional powers of the Minister of Justice and higher-ranking judges. The cohabitation period in the 1980s
[13] The Italian Council was made up of thirty-three members, twenty magistrates elected directly by the judges, ten lawyers or law professors nominated by the Parliament, and the President, the Chief-Justice, and the Chief-Prosecutor all serving ex officio. It has been reformed recently to include only twenty-four members, sixteen ordinary magistrates and prosecutors and eight lawyers or law professors with fifteen years experience in the legal profession, all of whom are appointed by the Parliament.
[14] The Spanish Council (Consejo General del Poder Judicial) has twenty members, twelve judges and eight lawyers all appointed by the Parliament and the Chief- Justice ex officio. For prosecutors, there is a council made up of twelve prosecutors (Consejo Fiscal).
[15] There are three councils in Portugal, one for judicial courts (Conselho Superior da Magistratura), one for administrative courts (Conselho Superior dos Tribunais Administrativos e Fiscais), and one for prosecutors (Conselho Superior do Minist´erio P´ublico)
[16] See Michael. H. Davis, A Government of Judges: An Historical Re-View, 35 AM. J. COMP. L. 559 (1987) (explaining why the American government of judges is disliked by the French legal scholars)
[17] See Doris Marie Provine, Courts in the Political Process in France, in COURTS, LAW AND POLITICS IN COMPARATIVE PERSPECTIVE, at 203-04 (Herbert Jacob et al., eds., 1996)
[18] Rebecca Bill Chavez, The Appointment and Removal Process for Judges in Argentina: The Role of Judicial Councils and Impeachment Juries in Promoting Judicial Independence, 49 LATIN AMERICAN POL. & SOC. 33 (2005) (Argentina).
[19] Linn Hammergren, Do Judicial Councils Further Judicial Reform? Lessons from Latin America (Working-Paper Series Democracy and Rule of Law Project 28, 2002)
[20] Recommendation No.R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges (1994) (Council of Europe Recommendation), art. I.2.c
[21] Kim Teck Kim Seah, The Origins and Present Constitutional Position of Singapore’s Legal Service Commission, SING. ACAD. L.J., at 2 (1990).
[22] The judicial branch of the Legal Service Commission is headed by the Registrar of the Supreme Court but the ultimate responsibility for managing lies with the Chief Justice.
[23] In Missouri, the Commission has seven members: the Chief Justice, three lawyers elected by the bar from different appellate districts, and three laypersons appointed by the Governor. The inspiration for this institution was a famous 1906 speech by Roscoe Pound and can be seen as consistent with early twentieth century view in the value of technocracy and administrative insulation from politics. See, Roscoe Pound, The Causes of Popular Dissatisfaction With the Administration of Justice, 20 J. AM. JUD. SOC’Y 178 (1937).
[24] Peter Webster, Selection and Retention of Judges: Is There one Best Method?, 23 FLA. ST. U. L. REV. 1 (1995)
[25] F. Andrew Hannsen, Learning About Judicial Independence: Institutional Change in State Courts, 33 J. LEGAL STUD. 431-62 (2004).
[26] ROBERT STEVENS, THE ENGLISH JUDGES: THEIR ROLE IN THE CHANGING CONSTITUTION (2005), chs. 1 and 2. See also the recent volume BUILDING THE UK’S SUPREME COURT: NATIONAL AND COMPARATIVE PERSPECTIVES (Andrew Le Seur ed., 2004).
[27] In the case of Scotland, judicial appointments were under review since Sept. 1999 and an independent Judicial Appointments Board was established in June 2002.
[28] The President of the Courts of England and Wales sits in the Court of Appeal, the High Court and the Crown Court, among others, is responsible for expressing the views of the judiciary and for welfare, training, and guidance of the English judiciary. He is not the President of the Supreme Court.
[29] United States Institute of Peace, Judicial Appointments and Judicial Independence January 2009, Available athttp://www.usip.org/files/Judicial-Appointments-EN.pdf.
[30] Ibid.
[31] Universal Charter of the Judge, 1999, International Association of Judges, art.9 and 11
[32] Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region, 1995, 6th Conference of Chief Justices
of Asia and the Pacific, Beijing, China, art.15
[33] Recommendation No.R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges (1994) (Council of Europe Recommendation), art.I.2.c
[34] European Charter on the Status of the Judge, 1998, Council of Europe, art.1.3
[35] European Charter on the Statute for Judges, Strasbourg, July 1998, principle 1.3.
[36] . There is a large body of literature on judicial independence and quality. See, e.g., Richard Epstein, The Independence of Judges: The Uses and Limitations of Public Choice, BYU L. REV., at 827 (1990); Paul Fenn & Eli Salzberger, Judicial Independence: Some Evidence from the English Court of Appeal, 42 J.L. & ECON. 831 (1999);F. Andrew Hannsen, Is There a Politically Optimal Level of Judicial Independence?,
94 AM. ECON. REV. 712 (2004); Irving Kaufman, The Essence of Judicial Independence, 80 COLUM. L. REV. 671 (1980);
[37] European Charter on the Status of the Judge, 1998, Council of Europe , art. 1.3
[38] Article 9 of the Universal Charter of the Judge
[39] CCJE, principle no. 65, The Report of JUDICIAL COUNCILS REFORMS FOR AN INDEPENDENT JUDICIARY. Examples from Egypt, Jordan, Lebanon, Morocco and Palestine May, 2009, p 22.
[40] Efforts to Enhance Judicial Independence in Latin America: A Comparative Perspective in Guidance for Promoting Judicial Independence and Impartiality, 2001, USAID Technical Publication.
[41] In this respect principle 12 of the Basic Principles on the Independence of the Judiciary and principle 1 of the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, both stipulate that “Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.”
[42] The principle of irrevocability is only constitutionally guaranteed in many democratic countries.
[43] Universal Charter of the Judge, 1999, International Association of Judges, art.11
[44] Article 11 of the Universal Charter of the Judge.
[45] Principle 5-1, European Charter on the Statute for Judges.
[46] Recommendation No.R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges (1994) (Council of Europe Recommendation), art.VI.3
[47] CCJE Principle no. 74.
[48] Principle set out in the Cairo Declaration on Judicial Independence; Recommendation of the Second Arab Justice Conference, February 2003.
[49] See, Violaine Autheman, Sandra Elena (editor: Keith Henderson), IFES Rule of Law White Paper Series Global Best Practices: Judicial Councils: Lessons Learned from Europe and Latin America, April 2004.
[50] See, Violaine Autheman, Sandra Elena (editor: Keith Henderson), IFES Rule of Law White Paper Series, Global Practices: Judicial Councils, Lesson Learned from Europe and Latin America, April 2004.