The previous section has briefly explained why judicial independence is important for maintaining judges’ impartiality and the rule of law. This section now focuses on how judicial independence can be guaranteed in its fundamental aspects (external, internal, institutional and individual independence). Various mechanisms are possible, and a range of examples are provided to encourage debate and develop critical thinking.
Judicial independence is a multifaceted concept. There are different institutional, legal and operational arrangements that in abstracto are designed to ensure judicial independence, and they can work differently depending on the historical, political, legal and social context in which the judiciary operates. Therefore, there is not an ideal model of implementing judicial independence in the sense that one-size-fits-all. Judicial independence is – in more concrete terms – the result of a combination of different conditions, measures, checks and balances, that can vary from one country to another. Every country has to find its own balance.
In some countries, for example, judicial independence is basically secured through a self-governing body or council (composed mainly of judges) which is in charge of all the decisions concerning judges’ recruitment/nomination, career, transfer and discipline. This occurs, for example, in France, Italy, Mongolia, Nigeria, Poland, Romania, Spain, and Ukraine. In other countries, such as Kenya, South Africa, India, Germany, Austria, Czech Republic, India, Kenya, South Africa, the United States, there is no equivalent body, and judicial independence is thereby secured through various other mechanisms. Therefore, what is deemed to be an essential measure in some countries may be not considered as such in others. This reveals rather different views on the institutional means needed to protect judicial independence.
The process of defining the institutional requirements of judicial independence has by no means come to an end. For example, the oldest institution of the British constitutional system, the office of Lord Chancellor, has been recently redesigned in an effort to bring about a clearer separation between the branches of the State, and to enhance the independence of the judiciary (see the UK Constitutional Reform Act, 2005; Shetreet and Turenne, 2013).
The protection of judicial independence is usually considered as including various aspects that operate on different levels: external and internal independence, and institutional and individual independence. External independence refers to the independence of the judiciary from the political branches (Executive and Legislative power), as well as any other nonjudicial actor. Although there must, of necessity, be some relations between the judiciary and the political powers (especially the Executive), as stated in the Commentary on the Bangalore Principles “such relations must not interfere with the judiciary’s liberty in adjudicating individual disputes and in upholding the law and values of the Constitution” (2007, para. 26). Internal independence focuses on guarantees aimed at protecting individual judges from undue pressure from within the judiciary: from other judges and, above all, from high ranking judges. High ranking judges may, for example, exert supervising power over courts’ administration (depending on the organization of the judicial system), but they must not – in any way – influence the substance of judges’ decision-making.
Institutional independence pertains to the institutional and legal arrangements designed ex ante by the State to shield judges from undue pressure and influence. From this point of view, the most important factors concern the way in which judges are recruited, evaluated, and disciplined, the governance of the judiciary and courts’ administration. Usually, these aspects are regulated by the Constitution or special statutes concerning the judiciary. It is, however, a matter of fact that institutional independence can work in different ways, according to the context within which it operates, and does not guarantee per se that judges do actually behave in an independent manner. It is necessary, therefore, to consider not only the institutional design, but also the concrete behaviours of judges. This question concerns the individual independence of judges, i.e. their state of mind and concrete conduct, which depends, among other things, on their professional socialization and on the way in which they have internalized professional values. Although institutional independence is a necessary condition of individual independence, the two concepts are distinct. Both dimensions are required: both the individual judge and the court must be independent and be seen to be independent. As stated in the Commentary on the Bangalore Principles: “An individual judge may possess that state of mind, but if the court over which he or she presides is not independent of the other branches of government in what is essential to its functions, the judge cannot be said to be independent” (2007, para. 23). On the other hand, it is also mentioned that “the adoption of constitutional proclamations of judicial independence does not automatically create or maintain an independent judiciary” (2007, para. 25).
How can judicial independence be implemented in concrete terms? Which are the basic arrangements that can be adopted to secure judicial independence? Various configurations of judicial independence are possible in concrete terms, and States have adopted different models and solutions. The main factors that are relevant to promote and uphold the independence of the judiciary can be identified on the basis of:
- The procedures of appointment and promotion of judges;
- Judicial councils;
- The terms and conditions of judicial tenure;
- Financial autonomy and court administration;
- Judicial conduct and discipline.
Appointment and promotion of judges
Who appoints judges and how? Appointment procedures can be unduly influenced by the political or personal considerations of the appointing authorities. To avoid this risk, it is of paramount importance to guarantee transparent, objective and non-discriminatory procedures. This applies also to election procedures, in systems where judges are elected.
It is generally agreed at international level that judicial appointments should be made on merit, based on objective criteria pre-established by law or by competent authorities, and that political considerations should be inadmissible (UNODC, 2015, para. 53-55; GA Resolution 40/32 and 40/146, para. 10 and 13). Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications. The same principles apply to judicial promotions, which should be based on objective factors, in particular: ability, integrity and experience.
Some international standards also promote diversity in the composition of the members of the judiciary, including by taking into account a gender perspective (UNHRC, 2013, p. 2). States, for example, should undertake an assessment of the structure of their judicial branch and its composition, to ensure that women are properly represented and to create the conditions necessary for the realization of gender equality within the judiciary (but also the public prosecution service and the public defender service) (IACHR, 2013, para. 70). For academic scholarship on gendered recruitment patterns, in Russia, see Volkov and Dzmitryieva (2015). For a discussion of the complexities associated with an increase in women judges in Pakistan, see Holden (2019).
Further examples of initiatives to increase the representation of women in the judiciary include:
Example: Jordan – Initiatives to promote the representation of women within the judiciary
In recent years there has been a significant increase in the number of women enrolled in the Jordanian Institute of Judicial Studies. This welcome increase is attributed, in large part, to a range of initiatives implemented by the Jordanian Ministry of Justice. Such initiatives include the establishment of minimum quotas (15 per cent) for admission of female candidates to the Institute of Judicial Studies; and the establishment of funds both to assist with the studies of female judicial students, and to support women judges’ participation in judicial training and research visits ( International Commission of Jurists, 2014, p. 34)
Example: Kenyan constitutional provision to redress past gender discrimination
The Kenyan Judiciary has among the highest representation of women judges in Sub-Saharan Africa. This is largely attributable to the success of civil society advocacy, which has seen the introduction of political measures designed specifically to increase the representation of women in the judiciary. In 2010, the new Kenyan Constitution established that “not more than two-thirds” of all elective or appointive bodies, including the judiciary, shall be of the same gender, providing for affirmative action to address past discrimination. Subsequently 13 women were appointed out of 28 new High Court judges. ( International Commission of Jurists, 2014, p. 41)
Example: England and Wales provide discretionary scope to allow diversity in judicial appointments
In England and Wales, the 2013 Crime and Courts Bill provided for major changes in judicial appointments. The existing provision that judicial appointments are to be made ‘solely on merit’ has been changed so that ‘solely’ does not prevent the selecting body, where two persons are of equal merit, from preferring one of them over the other for the purpose of increasing diversity within the group of persons who hold offices for which there is selection, or a sub-group of that group. The Chair of the Judicial Appointments Commission (JAC) has welcomed the provision to allow the JAC to select the more diverse candidate.
Example: Inter-American Commission on Human Rights requires equal footing participation in the administration of justice
In South Africa, the Constitution emphasizes the need for the judiciary to reflect broadly the racial and gender composition of the country, and for this to be a consideration when judicial officers are being appointed (UNODC, 2015, para. 55; Bingham Centre, 2015, p. 6).
Accordingly, the Inter-American Commission on Human Rights has recalled that States have a duty “to adopt all measures necessary to guarantee that indigenous peoples and ethnic groups are able to participate, on an equal footing, in the administration of justice, so that they, too, can become part of the institutions and organs of the State and participate, directly and in proportion to their population, in the conduct of public affairs. They should do this from within their own institutions and according to their values, practices, customs and forms of organization, provided these are compatible with the human rights embodied in the Convention of Human Rights” (IACHR, 2013, para. 72).
Key debate: Criteria for selecting judges
Due to the increased complexity of the work of the judge, it has become quite evident that the professional qualifications now required for the proper exercise of the judicial role go far beyond the basic legal knowledge and skills of legal interpretation that once were sufficient.
In Canada, for example, the assessment of candidates for the Supreme Court should involve consideration not only of their legal expertise and general professional abilities, but also of their social awareness, sensitivity, and other personal qualities, including a sense of ethics, patience, courtesy, honesty, common sense, tact, humility, punctuality, communication skills, ability to manage time and workload, and the capacity to handle heavy workload and stress (see, for example, criteria for judicial appointments in Canada).
In some States (such as Austria, Hungary, the Netherlands and the Philippines) the selection of new judges includes psychological testing. Psychological tests comprise tests of intelligence, ability to work in teams, capacity to make decisions under stress, and other issues.
In some systems, especially where judges are selected at the beginning of their professional careers, it is not uncommon for a judicial appointment to involve a period of training or probation.
Initial (and continuous) training is an important tool to guarantee judicial independence. It is fundamental not only to build strong professional skills but also to introduce judges to the basic values and principles of judicial profession.
Probation is strictly connected to training. The purpose of probationary appointments “is to ascertain whether a judge is really able to carry out his or her functions effectively before permanent appointment” (IACHR, 2013, para. 97). During probation, judges might enjoy certain limitations in their functions, independence and immovability (they, for example, can sit only in panels and be transferred or dismissed more easily than judges appointed for life). Particular attention must be devoted to the independence of judges in probation in decision-making, since they might feel pressure to decide cases in a particular way. A balance must be found between the need to ensure high professional standards and the protection of minimum level of independence. The final decision on permanent appointment should be made according to objective criteria and with appropriate procedural safeguards.
Recruitment and promotion procedures vary considerably among States. There is however a fundamental distinction between civil service judiciary (also known as bureaucratic judiciary), to which civil law judiciaries tend to belong, and professional judiciary, typical of common law judiciaries (Guarnieri and Pederzoli, 2002). This is, of course, an ‘ideal-typical’ distinction, since the reality is much more scattered and many systems actually combine some features of the civil service model and the professional model.
In most civil service judiciaries judges are recruited by means of public competitions based on written and oral exams, in which the theoretical knowledge of various branches of the law is verified. As a rule, the participants in those competitions are young law graduates without professional experience or with limited professional experience (although the years of experience vary among the countries). In civil law countries, public competition is the common way to access public offices. This system of recruitment is based on the assumption that the process of professional socialization and the development of professional skills will take place primarily within the judiciary and be governed by the judiciary itself, often through specialized institutions (Judicial Schools). Moreover, newly appointed judges are expected to be functionally omni-competent, as they can be assigned to a wide range of functions associated to their rank (the recruitment has a generalist nature).
Depending on the country, the Minister of Justice plays a role in the appointment procedure (for example, he/she may be responsible for the final appointment). Such role is however often mitigated by independent or self-governance bodies (appointment commissions, courts’ presidents, judicial councils, etc.) which are involved in various ways in candidates’ assessment. Given appointments are based on public competition, there is limited room for political influence, and the external independence of the judiciary is preserved.
In the civil system of recruitment, Judges enter the judiciary rather young and they generally remain in service for their entire working life, following a career which formally combines seniority and professional merit. The need “to operate periodic and substantial professional evaluations of judges is closely tied to the civil service model of recruitment, as judges are recruited without having any previous professional experience” (Di Federico, 2008a). The career usually involves recurrent evaluations of professional performance, for the purpose of promotions, role assignment and transfer. Hierarchical superiors have wide discretion in determining merit. This can be problematic because the influence of hierarchical superiors can undermine internal independence. In some countries hierarchical superiors share such responsibility with other bodies or agencies including representatives of judges, ministers of justice, parliamentary commissions. The problem has been mitigated in some countries thanks to the institution of judicial councils, self-governing bodies in which judges are represented, which contribute – to varying degrees – to the management of judicial personnel.
A different system is adopted in most professional judiciaries. Judges are recruited (or elected) from among lawyers and, in some cases, law professors, usually at the end of their working career. In the United States, for example, legal academics are often appointed to the federal bench. Given that judges are recruited only after having acquired professional legal experience, the professional socialization and the development of professional skills take place before judicial appointment and within the legal/academic profession. The appointment is usually in the hands of the Executive branch and might be based also on the political affiliation of the candidate. This can be detrimental for the external independence of the judiciary. The political influence is mitigated by the fact that appointment is usually for life term, and it cannot be affected by the potential changes in the political orientation of the appointing authorities.
In recent years, steps have been taken to render the process of judicial appointment more transparent and/or more participatory, or even to severely limit the power of judicial appointment of the Executive. In England and Wales, for example, the Constitutional Reform Act of 2005 introduced a new system for judicial appointment, departing from a long-standing tradition. Hitherto, the Lord Chancellor had legislative, judicial and executive functions, including that of heading a government department with responsibility for the courts and for judicial appointments. The Constitutional Reform Act replaced this system with the establishment of a Judicial Appointment Commission (composed primarily of high-ranking judges) which limits the role of the Lord Chancellor to one of accepting or exceptionally rejecting with cause its recommendations (UNODC, 2011, p. 9; Shetreet and Turenne, 2013; Bingham Centre, 2015,, p. 44).
The most challenging systems are those in which judges are elected. “The elective system is seen as providing the judiciary a greater degree of democratic legitimacy. It may, however, lead to judges being involved in fund raising, political campaigning, and indulging in the buying or giving of favours” (UNODC, 2015, para. 56).
In the U.S. for example, the appointment of judges by popular election for a fixed number of years is practiced in some States. Such a system is based on the belief that citizens should have the right to choose their own judges and also choose someone else in the next election if they are not satisfied with their performance during their term in office. “Critics of this system of judicial selection maintain that: it does not guarantee a selection based on merit; and it does not adequately protect judicial independence, or the image of impartiality of the judicial function. The remedies adopted in some states have been to create commissions, variously composed of representatives of lawyers, jurists, and ordinary members of the community, who submit to the governor of the State a list of qualified lawyers. The governor then appoints one of them as judge and, after a term of some years in office, the judge stands for uncontested ‘retention election’. Yet even those remedies leave unanswered another criticism levied against the election of the judges, i.e., that the voters do not have reliable information to make a qualified choice” (UNODC, 2011, p. 8).
Under the professional system, judges are recruited to fill specific positions in a specific court without any formal prospect of a future career or transfer from one court to another. Therefore, there are no formal provisions for advancement, although higher ranking judges often exert some influence in both the initial appointment process and the promotion of judges from the lower ranks. Since promotions are not widespread, on the whole, there are much weaker internal controls over judges by their higher-ranking colleagues. As professional judiciaries tend to employ individuals with solid legal experience outside the judiciary, there is less emphasis on internal controls and guarantees of internal independence seem to be stronger in these systems.
Both types of judiciaries (civil service judiciaries and professional judiciaries) tries to safeguard judicial independence. However, some level of political influence is possible. In common law systems this might occur largely through the recruitment process; in civil law systems through the influence on the judicial career.
Judicial councils
In many systems in which judges are recruited at a very young age, councils of the judiciary have been introduced to manage their long professional career. In other countries, on the contrary, especially in those that follow the common law tradition, similar councils do not exist. More recent reform initiatives (see for example: Sajó, 2004, and the analysis of judicial reforms in the countries of Central and Eastern Europe) have indicated a strong preference for the appointment and promotion of judges to be made by an independent body, such as judicial council or judicial appointment commissions.
Judicial councils are self-governing bodies of the judiciary. Composed mainly of judges, these councils are independent from the executive and legislative branches, even though they maintain some connections with them. They have been introduced, primarily, in countries which shifted from an authoritarian regime to a liberal democracy, as they were considered crucial for the implementation of the independence of the judiciary from the political powers (especially the Executive). Judicial councils have also had important effects as regards the promotion of internal independence, since they have reduced the influence of hierarchical superiors.
Example: Romania
In Romania, as in other countries of the Central and Eastern Europe (CEE), the politicization of the judiciary was a key feature of the Communist regime. Judges and courts belonged to the Executive and were subordinated to the Communist Party. Their appointment was tightly controlled through the nomenklatura system. Separation of powers existed only in name, the absolute control of the judicial, executive and legislative functions being concentrated in the hands of a private corporation: the Communist Party. ‘Telephone justice’ was the norm; judges were told what decisions to deliver by party apparatchiks communicating with them over the telephone. The prosecution was the dominant partner in the judiciary branch and routinely used as a tool of the Party. The Party permitted the judiciary a very circumscribed degree of independence to deal with matters the Party cared nothing about, such as street crime, divorce, probate of personal property, etc. (Parau, 2011, p. 641).
After the experience with party politics in the Communist judiciary, in Romania, as well as in other countries of the CEE region, the transfer of responsibility for judicial personnel management from the Executive was thought to be the institutional backbone to the independence of the judiciary. To this end, the management of the judiciary has been placed in the hands of national councils of judges. With some differences among the countries, these councils have gained extensive powers (Blankenburg, 2004, p. 212). The Executive was therefore deprived of most of its authority in matters concerning judicial governance; it also lost the power to influence judicial decisions.
In recent decades the number of judicial councils has significantly increased in Europe, Latin America, Africa and Middle East. Their powers, composition and the system in which their members are appointed vary considerably from one country to another.
Despite judicial councils, some influence by political branches can nonetheless take place. Judicial councils, in fact, often include also nonjudicial members, usually outstanding jurists or citizens of acknowledged reputation and experience, and elected by specific authorities (for example, Parliament, the Presidents of the two Chambers of the Parliament, Government) or by other subjects/groups involved in the administration of justice (for example, representatives from the Prosecution services). Councils solely composed of judges are very rare. As representatives of society, nonjudicial members introduce social control within the council but, at the same time, they are a channel that connect the judiciary with the political environment, especially in the countries where they are appointed by Parliament with the support of political parties. In some countries all the members of the councils (including judges) are appointed by political powers (Minister of Justice, the Cabinet of Ministers, Parliament) and in these cases the connection with politics is stronger.
Examples: Spain; France
Tendencies have emerged to reduce the political influence on councils. In Spain, for example, since 1985 all the members of the Consejo General del Poder Judicial, including judges, are elected by Parliament. According to a more recent practice, however, judicial members are elected by Parliament on the basis of lists presented by the various professional associations of judges.
In France, with a view to strengthen the independence of the judiciary, the Constitutional reform of 2008 ( Loi constitutionnelle no. 2008-724) has established that the Superior Council of the Magistracy be presided over by the President of the Supreme Court of Cassation, with the General Prosecutor acting as vice-president. Before 2008, the president and vice-president of the Council were, respectively, the President of the French Republic and the Minister of Justice. The reform, however, has also increased the number of nonjudicial members, who are appointed by political authorities (the President of the Republic, the President of the Senate and the President of the National Assembly) and now represent the majority in the Council. The purpose is to avoid that the corporate interests of the judiciary might prevail over the protection of other important values for the proper working of the judicial system such as those of efficiency and judicial accountability. Despite the political nature of appointing authorities, the selection of nonjudicial members must focus on professional experience and merits.
Additionally, the councils have also increased the role of a new significant actor, the judicial associations, since they organize the electoral participation of judges. In several countries there are various union-like associations which appear to be divided along cultural and political lines. In some countries they are very active and exert some influence on the councils’ internal deliberative process.