tag:theconversation.com,2011:/uk/topics/judicial-independence-23268/articles
Judicial independence – The Conversation
2024-02-28T00:00:10Z
tag:theconversation.com,2011:article/224506
2024-02-28T00:00:10Z
2024-02-28T00:00:10Z
Doug Ford’s political judicial appointments: Good or bad for justice and democracy?
<p>Ontario Premier Doug Ford <a href="https://www.cbc.ca/news/canada/toronto/ford-appointing-former-staffers-judge-selection-committee-1.7127050">has defended appointing two former senior political staffers to a committee that helps select provincial judges</a>, saying he would not appoint a Liberal or New Democrat.</p>
<p><a href="https://www.thestar.com/politics/provincial/doug-ford-defends-patronage-appointments-of-ex-staffers-says-he-wants-like-minded-people-selecting/article_85bcd434-d25b-11ee-b59c-bb5445f38856.html">The controversy</a> surrounds Ford’s intention to appoint “like-minded people” to <a href="https://www.ontariocourts.ca/ocj/jaac/">Ontario’s Judicial Appointments Advisory Committee (JAAC)</a>, which submits a shortlist of candidates to the Attorney General of Ontario for appointment as judges.</p>
<p>It is composed of seven lay members from the public (appointed by the government), three provincial court judges (appointed by the judiciary) and three lawyers from legal organizations (selected from lists submitted to the Attorney General).</p>
<p>Commentators expressed concern that patronage appointments to the JAAC could politicize the appointment system. Ford says he would seek to appoint “tough judges, tough JPs [Justices of the Peace] to keep guys in jail,” adding, “that’s part of democracy. You voted a party in.” </p>
<p>The Federation of Ontario Law Associations said Ford’s comments “<a href="https://www.theglobeandmail.com/canada/article-doug-ford-says-its-his-right-to-appoint-like-minded-judges/">reflect a juvenile understanding of the role of an independent judiciary</a>.” Liberal Leader Bonnie Crombie warned of a “<a href="https://twitter.com/BonnieCrombie/status/1761056753767063774">U.S.-style politicization of our courts</a>” and NDP Leader Marit Stiles also warned of <a href="https://www.thestar.com/politics/provincial/i-am-going-to-make-sure-we-have-like-minded-judges-doug-ford-doubles-down/article_11957aa8-d4b7-11ee-a4e5-03b6529e6fd5.html">“politicization of the judiciary.”</a></p>
<p>Do these kinds of appointments add a welcome dose of democratic input into the judicial process (by the appointment of judges who reflect the elected government’s worldview)? Or do they signify unhealthy politicization of the judiciary? Both perspectives have some merit. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1761044857362042897"}"></div></p>
<h2>Judicial legitimacy</h2>
<p>The judiciary relies on public legitimacy to undergird its decisions. A number of those decisions involve a degree of discretion and are not simply mechanical applications of the law, particularly in criminal law.</p>
<p>If the judiciary strays too far from the general currents of public opinion when making such decisions, confidence in the judiciary could be eroded. Therefore, appointing individuals to the JAAC who may have links to the party in power and are sympathetic to their politics isn’t necessarily troublesome.</p>
<p>If a new government appoints judges with a somewhat different worldview than the previous government, that is acceptable and even healthy — so long as the process emphasizes legal knowledge and fairness, and not partisan considerations.</p>
<p>Part of my concern, though, is that Ford’s comments about having high-profile Conservatives on the JAAC and appointing <a href="https://globalnews.ca/news/10318686/doug-ford-like-minded-judges/">“like-minded judges”</a> gives the impression that candidates affiliated with the provincial Progressive Conservatives may be favoured in the appointments process.</p>
<p>Injecting partisan considerations into the appointment process has a number of negative consequences. The appointment system can be viewed as unfair and high-quality candidates may be overlooked or even discouraged from applying. </p>
<p>While appointees linked to the party of appointment can be excellent judges, <a href="https://doi.org/10.1017/S0008423910000648">research suggests</a> that partisans tend to make up a higher portion of appointees perceived to be of lower quality. Making partisanship a priority <a href="https://doi.org/10.1017/S0008423917000014">may reduce the potential to diversify the bench</a>. This, in turn, could reduce how representative of broader society the bench is, and limit the range of experiences that breathe life into the law. </p>
<p>These problems have been pointed out in regard to patronage in judicial appointments by the <a href="https://nationalpost.com/feature/exclusive-data-analysis-reveals-liberals-appoint-judges-who-are-party-donors">federal Liberals</a> and <a href="https://www.theglobeandmail.com/news/politics/stephen-harpers-courts-how-the-judiciary-has-been-remade/article25661306/">Conservatives</a>, along with the fact that they rarely appoint individuals linked to opposition parties.</p>
<p>Even if the Ford government’s goal is not to appoint party affiliates, but simply individuals perceived to be “tough on crime,” his failure to emphasize that those judges would still be required to apply the law fairly and impartially can undermine faith in the judicial process.</p>
<h2>Assessing the impact</h2>
<p>Despite the serious reservations identified above, I remain less concerned than some others about how this will play out. Judges and lawyers compose nearly half of the JAAC, making it unlikely that unworthy candidates will be shortlisted for appointment. </p>
<p>Moreover, judicial independence does not require that the selection process be independent from government. Having a selection committee composed of members of the legal community and lay people is a positive development, as they can help emphasize quality and provide some buffer against a politicized appointment process. </p>
<p>However, the core of judicial independence requires governments not being able to punish or reward judges for their decisions once on the bench — something that is robustly protected in Ontario. Trial court decisions can also be appealed to a higher court and judges themselves are subject to an <a href="https://www.ontariocourts.ca/ocj/conduct/do-you-have-a-complaint/">independent complaints system</a>.</p>
<p>Finally, the Ford government will likely find that choosing judges who decide cases consistently in a certain direction is a difficult task. Not only do judges have guarantees of independence, but once appointed, professional norms tend to lead judges to impartially apply the law (as best they understand it) to the facts. </p>
<p>Often, the requirements of legislation or precedents will require a decision that governments (or even the judges) do not like. In cases where judges have some latitude (excluding evidence, bail, sentencing, etc.), <a href="https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=3711&context=ohlj">research on judicial behaviour below the Supreme Court-level</a> suggests that one cannot assume former prosecutors or Conservative appointees are going to be “tough on crime” as envisioned by Premier Ford. </p>
<p>Overall, if there is some incremental change in outcomes from newly-appointed judges in line with shifts in the electorate, that is a healthy feature of our liberal democratic system of government. This holds true provided the judges were recommended by a selection committee; there is a strong system of judicial independence and judicial decisions are constrained by fair and impartial application of the law. My guess is that progressives and conservatives would both agree with that, depending on who is in power at the time.</p><img src="https://counter.theconversation.com/content/224506/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Troy Riddell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Appointing individuals who may have links to the party in power is not necessarily troublesome, as long as the process emphasizes legal knowledge and fairness, and not partisan considerations.
Troy Riddell, Associate Professor and Chair, Department of Political Science, University of Guelph
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/215820
2023-10-31T15:29:03Z
2023-10-31T15:29:03Z
Kenya’s courts were under political pressure: how a constitutional reform empowered judges
<p>Changes to Kenya’s constitution in <a href="http://kenyalaw.org/kl/index.php?id=398">2010</a> on the <a href="https://www.klrc.go.ke/index.php/constitution-of-kenya/134-chapter-ten-judiciary/part-1-judicial-authority-and-legal-system/329-160-independence-of-the-judiciary">independence of the judiciary</a> created room for judges to act as guardians of the electoral process. </p>
<p>Before this, the law gave Kenya’s presidents considerable influence over courts’ actions. <a href="https://www.sciencedirect.com/science/article/abs/pii/S0261379423000756">Historically</a>, the judiciary was not an independent branch. It was categorised as a governmental department working under the authority of the attorney general. The president was responsible for appointing judges. </p>
<p>For instance, <a href="https://www.britannica.com/biography/Daniel-arap-Moi">Daniel Moi</a>, who was president from 1978 to 2002, <a href="https://www.pd.co.ke/news/former-top-judge-blows-lid-off-moi-regime-dirty-bench-antics-61768/">systematically appointed loyalists</a>. The close links between the government and the judiciary made it pointless to go to court to challenge electoral disputes. </p>
<p>The 2010 constitution changed this. And in 2017, the Kenyan supreme court, the highest court in the country, <a href="https://www.reuters.com/article/us-kenya-election-court/kenyan-court-scraps-presidential-vote-kenyatta-calls-for-calm-idUSKCN1BC4A5">annulled the re-election of the presidential incumbent, Uhuru Kenyatta</a>. The ruling asked the electoral commission to organise a rerun of the presidential election. This was despite the <a href="http://kenyalaw.org/caselaw/cases/view/140716/">threats and pressure</a> the judges faced. </p>
<p>As a political scientist and former lawyer researching judicial politics in non-democratic settings, I found this change in behaviour puzzling. In <a href="https://www.sciencedirect.com/science/article/abs/pii/S0261379423000756">a recent paper</a>, I sought to understand why a court would take such a risk. Where judges face retaliation and pressure from political actors, why – and when – would courts take the risk of nullifying the elections of ruling party candidates? </p>
<p>I found that courts take such risks when there has been institutional reform. But to have this effect, the reform must meet two conditions. </p>
<p>First, a legal framework must shield the judiciary from political interference. It must create distance between the executive and the judiciary branch. Second, legal reforms must also mobilise judicial activists, lawyers and scholars to train and monitor courts on electoral issues. The Kenyan case illustrates how this works.</p>
<h2>The legal framework</h2>
<p>Kenya’s 2010 constitution put in place mechanisms to shield the judiciary from executive branch interference. First, the judiciary stopped operating under the leadership of the attorney general, an executive office. This made the separation between the two branches of power official. Second, the constitution <a href="https://www.klrc.go.ke/index.php/constitution-of-kenya/134-chapter-ten-judiciary/part-1-judicial-authority-and-legal-system/329-160-independence-of-the-judiciary">removed</a> the president’s prerogative to appoint judges. </p>
<p>My study found that constitutional reforms should not give the executive branch any decision-making power over the functioning and organisation of the judiciary. </p>
<p>In Kenya, the <a href="https://judiciary.go.ke/judicial-service-commission/">Judicial Service Commission</a>, an independent body established under the constitution in 2010, is responsible for all appointments. Judges go through a rigorous process where their legal skills and personal ethics are questioned before they are appointed. This process prevents the president from appointing regime supporters. </p>
<p>Kenya’s reforms also modified the structure of the judiciary by creating the <a href="https://supremecourt.judiciary.go.ke/">supreme court</a> and diluting the <a href="https://ocj.judiciary.go.ke/cj-roles/">authority of the chief justice</a>. A new <a href="https://www.judiciary.go.ke/wp-content/uploads/2023/07/Public-Hearing-2023-1.pdf#page=4">special fund</a> gave the judiciary financial autonomy. </p>
<p>The constitution also contains specific provisions regulating how the judiciary settles electoral disputes. Before 2010, it took years to settle them. The constitution established a <a href="https://www.klrc.go.ke/index.php/constitution-of-kenya/130-chapter-nine-the-executive/part-2-the-president-and-deputy-president/308-140-questions-as-to-validity-of-presidential-election">mandatory timeline</a>. Courts have six months to deal with electoral disputes and 14 days to rule on presidential elections. </p>
<h2>Strong judicial networks</h2>
<p>These legal mechanisms are not sufficient on their own. They must create the space for civil society groups to interact with the judiciary, and encourage collaboration between activists, lawyers and scholars. By teaming up, these groups bring together more resources, expertise and experience. </p>
<p>They can help courts to resist government pressures. In Kenya, I found that these networks of lawyers, activists and scholars used three strategies to empower courts.</p>
<p><strong>1. Strategic petitions</strong></p>
<p>Lawyers, activists and scholars in Kenya have engaged in strategic litigation to improve the quality of election petitions, pushing courts to depart from the old English precedent, <a href="https://vlex.co.uk/vid/morgan-v-simpson-793009613">Morgan v Simpson</a>. The 1974 ruling requires plaintiffs to show that electoral fraud occurred, and that the fraudulent behaviour affected an election’s outcome. These Kenyan networks have given courts the opportunity to change their electoral jurisprudence. </p>
<p>In the 2017 <a href="http://kenyalaw.org/caselaw/cases/view/140716/">presidential election petition</a> filed by <a href="https://theconversation.com/raila-odinga-should-be-thanked-his-election-losses-helped-deepen-kenyas-democracy-190044">Raila Odinga</a>, the supreme court changed its jurisprudence. It established that petitioners had to prove either that electoral fraud took place, or that these irregularities affected election outcomes. This means plaintiffs don’t need to meet the two conditions at the same time, making it easier for opposition candidates to win a case. </p>
<p><strong>2. Judicial training</strong></p>
<p>These networks hold training and professionalisation workshops with the <a href="https://judiciary.go.ke/judiciary-committee-on-elections-jce/">Judiciary Committee on Elections</a>. The sessions help judges to deal with issues such as tight constitutional timelines. They also aim to build a more coherent approach to electoral petitions and discourage arbitrary decisions. </p>
<p><strong>3. Increased scrutiny</strong></p>
<p>The mobilisation of these networks has put the judiciary under intense scrutiny. They can detect inconsistencies or flawed legal reasoning in courts’ decisions. This scrutiny has direct effects on courts’ behaviour.</p>
<p>Most of the judges I interviewed for <a href="https://www.sciencedirect.com/science/article/abs/pii/S0261379423000756">my paper</a> remember the atrocities committed following Kenya’s <a href="https://www.aljazeera.com/features/2013/3/3/kenya-what-went-wrong-in-2007">2007 election</a>. For many, the judiciary’s inability to settle the electoral dispute effectively plunged the country into violence. More than 1,100 people died. The conflict almost put the future of judicial institutions into jeopardy. </p>
<p>The supreme court knows that <a href="https://theconversation.com/how-kenyas-judiciary-can-break-the-cycle-of-electoral-violence-182710">any future misstep</a> could threaten the institution’s survival and the country’s political stability. </p>
<h2>The lessons</h2>
<p>Policymakers can draw important lessons from the Kenyan case. </p>
<p>First, to prevent political actors from using courts for their own political gain, policymakers must design judicial institutions that cannot be influenced by the government’s agenda. They should identify all pathways through which governments could influence courts – not only through appointments. </p>
<p>Second, by funding and supporting civil society’s judicial activities, donors can help courts uphold electoral integrity and put states on the path to democratisation.</p><img src="https://counter.theconversation.com/content/215820/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thalia Gerzso received funding from the United States Institute of Peace, the American Political Science Association, the Cornell Graduate School, and the Qualitative and Interpretive Research Institute. </span></em></p>
Two conditions enable courts to take the risk of nullifying the elections of ruling party candidates.
Thalia Gerzso, Postdoctoral Fellow, London School of Economics and Political Science
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/212710
2023-09-13T13:09:11Z
2023-09-13T13:09:11Z
Kenyans don’t trust the courts - the main factors behind this trend
<p>The international reputation of the Kenyan judiciary is <a href="https://verfassungsblog.de/the-bbi-judgment-and-the-invention-of-kenya/">running high</a> following a raft of judicial reforms brought on by the 2010 constitution. The reforms, displays of judicial independence, and largely positive personal experiences might lead one to expect that public trust in the courts has increased. But among the Kenyan public it has not.</p>
<p>High-profile Supreme Court judgments have showcased a newfound judicial independence. The most notable include the <a href="https://www.theeastafrican.co.ke/tea/news/east-africa/kenya-supreme-court-nullifies-uhuru-kenya-s-re-election-orders-fresh-vote-1372638">nullification</a> of a presidential result in 2017, the rejection of government efforts to force through <a href="https://www.theeastafrican.co.ke/tea/news/east-africa/kenya-s-supreme-court-declares-bbi-unconstitutional-3766868">constitutional changes</a> in 2021 and <a href="https://www.standardmedia.co.ke/national/article/2001467772/supreme-court-gays-and-lesbians-have-a-right-of-association">confirmation</a> in 2023 of the rights of LGBTIQ+ people to form associations. </p>
<p>Personal experience of the courts is also largely positive. In March 2023 I commissioned Trends and Insights For Africa, a market research company based in Nairobi, to add questions on the Kenyan judiciary to a nationally representative face-to-face <a href="https://www.tifaresearch.com/azimio-protests-other-opposition-issues-2023-national-survey-post-post-election-issues/">survey</a>. </p>
<p>It revealed that 18.7% of respondents reported having been involved in a case in a Kenyan court room. Of these, 43.4% rated the experience as very positive, 25.1% as quite positive. Neutral responses made up 11.9%; 6.3% were quite negative; and 11.9% were very negative. Of the overall sample, 12.8% had a positive personal experience of the courts, and only 3.4% a negative one.</p>
<p>Public perceptions of the Kenyan judiciary have been tracked for nearly 20 years. According to 2021 data from the independent research network Afrobarometer, 16.9% of Kenyans had <a href="https://www.afrobarometer.org/survey-resource/kenya-round-9-data-2023/">no trust</a> in this key institution, up from 11.4% in <a href="https://www.afrobarometer.org/survey-resource/kenya-round-2-data-2003/">2003</a>. The only time that public trust was clearly lower was in 2008. This followed the 2007 election and post-election crisis, which drew attention to a <a href="https://journals.co.za/doi/abs/10.10520/EJC10308">perceived lack of judicial independence</a>.</p>
<p>More worryingly still, a majority of respondents in my March 2023 poll thought that Supreme Court judges were very often or sometimes bribed (58.1%) or intimidated (59.4%) to give a verdict unsupported by the evidence. There was hardly any distinction between public perceptions of the Supreme Court, High Court and magistrates.</p>
<p>This confidence crisis is a problem because people need to believe the judiciary is acting independently if it is to play its role. For example, the fact that the Kenyan opposition <a href="https://www.knchr.org/Portals/0/Reports/Waki_Report.pdf">did not trust the courts</a> in 2007 led them to protest about the election on the streets, rather than bring a petition. It sparked the country’s worst crisis. </p>
<p>I am a <a href="https://warwick.ac.uk/fac/soc/pais/people/lynch/">political scientist</a> who has studied Kenya for 20 years. My current research focuses on the critical role of the judiciary, which is relatively understudied. </p>
<h2>What shapes perceptions</h2>
<p>It’s important to try to understand the confidence crisis.</p>
<p>Despite reforms there are still regular reports of judicial bias and <a href="https://www.pd.co.ke/news/chief-justice-koome-cites-corruption-in-case-backlog-110117/">corruption</a>. There are also interactions that <a href="https://www.pulselive.co.ke/news/local/ahmednasir-criticises-how-martha-koome-received-president-ruto-in-parliament/6dtt40t">suggest</a> a “cosy relationship” between the judiciary and the political elite. This casts a shadow over the whole judiciary. </p>
<p>Public perception reports must also be considered in context. The year 2003 was a time of great optimism in Kenya. It followed the landslide victory of Mwai Kibaki over the party that had ruled the country since independence. Kenyans were the <a href="http://www.gilanifoundation.com/homepage/eoy/2002_EoY02comment.pdf">most optimistic citizens in the world</a> at the end of 2002. Public confidence in other key institutions – including the president, parliament, electoral commission, police, and army – was higher in 2003 than any subsequent round of the <a href="https://www.afrobarometer.org/countries/kenya/">Afrobarometer</a>. </p>
<p>Optimism soon turned to pessimism and finally <a href="https://www.knchr.org/Portals/0/Reports/Waki_Report.pdf">deadly violence</a> following the disputed election of 2007. A new constitution in 2010 <a href="https://www.bbc.co.uk/news/world-africa-11103008">failed to provide “quick fixes”</a>. Governance and socio-economic problems persist. </p>
<p>Scholars and the international observers have high regard for the Supreme Court’s 2017 presidential petition ruling and subsequent bold decisions. But public opinion in Kenya is divided. My March 2023 poll asked people whether there was a Supreme Court case that they disagreed with. Ordinary citizens cited exactly those cases that have been internationally lauded: 47.4% referred to the gay rights of association case (freshly concluded in February 2023); 21.2% cited the 2022 presidential petition, 8.6% the 2017 petition, and 5% the 2013 petition. </p>
<p>People’s views on these cases differ depending on their own views and interests, the opinion leaders they listen to, and their expectations of how a court should behave. For example, of the 26.3% of respondents who said they were dissatisfied with the way the Supreme Court handled the 2022 presidential petition, 43.8% said one of the reasons was that the decision was not based on evidence or was biased; 11.3% cited outside interference or coercion and 32.8% bribery. And 18.2% said that they were annoyed because the court didn’t nullify the election. </p>
<p>However, 24% said that they were dissatisfied because the court was rushed or had insufficient time and 10% because the ruling used rude or dismissive language. Those who cited time issues or language as one of the reasons for their dissatisfaction were a minority but they remind us of how public perceptions are informed not only by the substance of rulings, but by how judges behave.</p>
<p>It also means that acts that have attracted public criticism – such as the chief justice and deputy chief justice <a href="https://www.pulselive.co.ke/news/local/ahmednasir-criticises-how-martha-koome-received-president-ruto-in-parliament/6dtt40t">lining up alongside politicians</a> to welcome President William Ruto to the opening of parliament in September 2022 – have helped to reinforce popular perceptions of a judiciary that is biased or liable to being bribed or intimidated. </p>
<h2>The role of the media</h2>
<p>High profile and highly divisive cases, such as presidential petitions, receive much traditional media coverage of the <a href="https://www.youtube.com/watch?v=JK0GTl4WbI8">proceedings</a> and associated <a href="https://www.citizen.digital/news/azimio-responds-to-supreme-courts-full-judgment-on-presidential-election-petition-n306468">allegations of injustice</a>. This coverage places the Supreme Court in an almost impossible situation, earning the public ire of either the opposition (for example, the 2022 petition) or the government (for example, the 2023 gay rights association case). </p>
<p>At the same time, an increasing number of Kenyans gain their political news from social media either <a href="https://www.tandfonline.com/doi/full/10.1080/14662043.2023.2232160?src=&fbclid=IwAR2l_o889e75LO1rc3gM33RufPbpn69mFglO0yQvKdOdhdWgjd1C-zKbyrA">directly or indirectly</a> by sharing online stories offline. Traditional media are relatively careful about what they say about ongoing cases or judges – lest they be held in contempt of court or be sued for libel. Discussions on social media are not as regulated. It has become commonplace for opinion leaders of different political persuasions to <a href="https://twitter.com/makaumutua/status/1569342163573415936">publicly attack</a> the judiciary. </p>
<p>The allegations range from those likely to have some basis to misinformation. Views in 2023 are likely coloured by the failure of reforms to bring significant socio-economic change, and by a cost-of-living crisis. In this situation, negative information is more likely to resonate. </p>
<p>This interplay of factors helps to explain why public trust in the courts is lower than in 2003 after years of reform and investment, improved judicial independence and largely positive personal experiences.</p><img src="https://counter.theconversation.com/content/212710/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabrielle Lynch received funding from the University of Warwick Policy Support Fund. </span></em></p>
Kenya’s confidence crisis is a problem because people need to believe the judiciary is acting independently if it is to play its role.
Gabrielle Lynch, Professor of Comparative Politics, University of Warwick
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/159620
2021-07-06T18:56:25Z
2021-07-06T18:56:25Z
Should the Supreme Court have term limits?
<figure><img src="https://images.theconversation.com/files/408261/original/file-20210624-19-t5rjcp.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5656%2C3756&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lifetime tenure has pushed the average age of judicial nominees down as presidents appoint younger justices in hopes they will serve for many decades. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/associate-justice-samuel-alito-associate-justice-clarence-news-photo/1232482584?adppopup=true">Erin Schaff/Pool/AFP via Getty Images </a></span></figcaption></figure><p>Pressure on Supreme Court Justice <a href="https://www.nytimes.com/2021/03/15/opinion/stephen-breyer-supreme-court.html">Stephen Breyer to step down</a> will likely grow now that the court’s session has ended. </p>
<p>Breyer, 82, joined the court in 1994. His retirement would <a href="https://www.bostonglobe.com/2021/03/28/opinion/it-might-be-time-stephen-breyer-retire-supreme-court/">allow President Joe Biden to nominate his successor</a> and give Democrats another liberal justice, if confirmed.</p>
<p>Supreme Court justices in the U.S. enjoy life tenure. Under <a href="https://constitutioncenter.org/interactive-constitution/interpretation/article-iii/clauses/45">Article 3 of the Constitution</a>, justices cannot be forced out of office against their will, barring impeachment. This provision, which followed the <a href="https://blogs.chicagotribune.com/files/supctlawcalabresi.pdf">precedent of Great Britain</a>, is meant to ensure judicial independence, allowing judges to render decisions based on their best understandings of the law – free from political, social and electoral influences.</p>
<p>Our extensive research on the Supreme Court shows life tenure, while well-intended, has had unforeseen consequences. It skews how the <a href="https://www.cambridge.org/core/books/supreme-court-confirmation-hearings-and-constitutional-change/5294A199815AA35235FD64AB04FC7E4D">confirmation process</a> and <a href="https://www.sup.org/books/title/?id=22199">judicial</a> <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780195372144.001.0001/acprof-9780195372144">decision-making</a> work, and causes justices who want to retire to <a href="https://www.sunypress.edu/p-3721-deciding-to-leave.aspx">behave like political operatives</a>. </p>
<h2>Problems with lifetime tenure</h2>
<p>Life tenure has motivated presidents to pick <a href="https://qz.com/1324841/brett-kavanaughs-age-at-53-means-that-he-may-wield-influence-on-the-supreme-court-for-a-very-long-time/#:%7E:text=That's%20about%20where%20it%20was,the%20court%20was%20around%2053.">younger and younger</a> justices. </p>
<p>In the post-World War II era, presidents generally forgo appointing jurists in their 60s, who would bring <a href="https://www.fjc.gov/history/exhibits/graphs-and-maps/age-and-experience-judges">a great deal of experience</a>, and instead nominate judges in their 40s or 50s, who could serve on the court for many decades. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Supreme Court Justice Ruth Bader Ginsburg in 2005." src="https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1003&fit=crop&dpr=1 600w, https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1003&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1003&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1260&fit=crop&dpr=1 754w, https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1260&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1260&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Justice Ruth Bader Ginsburg.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-justice-ruth-bader-ginsburg-watches-president-news-photo/525578128?adppopup=true">Brooks Kraft LLC/Corbis via Getty Images</a></span>
</figcaption>
</figure>
<p>And <a href="https://www.pewresearch.org/fact-tank/2017/02/08/younger-supreme-court-appointees-stay-on-the-bench-longer-but-there-are-plenty-of-exceptions/">they do</a>. Justice <a href="https://www.washingtonpost.com/archive/politics/1991/07/02/bush-picks-thomas-for-supreme-court/943b9fda-e079-405e-974e-14c2d0cd999b/">Clarence Thomas was appointed</a> by President George H.W. Bush at age 43 in 1991 and <a href="https://www.nytimes.com/1993/11/27/us/2-years-after-his-bruising-hearing-justice-thomas-can-rarely-be-heard.html">famously said</a> he would serve for 43 years. There’s another 13 years until his promise is met. </p>
<p>The court’s newest member, Donald Trump’s nominee Amy Coney Barrett, was <a href="https://www.usnews.com/news/elections/articles/2020-10-28/amy-coney-barrett-and-the-makeup-of-the-courts">48 when she took her seat</a> in late 2020 after the <a href="https://www.nytimes.com/2020/09/18/us/ruth-bader-ginsburg-dead.html">death of 87-year-old Justice Ruth Bader Ginsburg</a>.</p>
<p>Ginsburg, a Clinton appointee who joined the court at age 60 in 1993, refused to retire. When liberals pressed her to step down during the presidency of Democrat Barack Obama to ensure a like-minded replacement, <a href="https://www.reuters.com/article/us-usa-court-ginsburg/u-s-justice-ginsburg-hits-back-at-liberals-who-want-her-to-retire-idUSKBN0G12V020140801">she protested</a>: “So tell me who the president could have nominated this spring that you would rather see on the court than me?” </p>
<h2>Partisanship problems</h2>
<p>Justices change during their decades on the bench, <a href="https://upload.wikimedia.org/wikipedia/commons/c/c6/Graph_of_Martin-Quinn_Scores_of_Supreme_Court_Justices_1937-Now.png">research shows</a>. </p>
<p>Justices who at the time of their confirmation espoused views that reflected the general public, the Senate and the president who appointed them tend to <a href="https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1113&context=nulr_online">move away</a> <a href="https://journals.sagepub.com/doi/abs/10.1177/106591290005300306">from those preferences</a> over time. They become <a href="https://doi.org/10.1017/s002238160808081x">more ideological</a>, focused on putting their own <a href="https://www.cambridge.org/core/books/supreme-court-and-the-attitudinal-model-revisited/5982FCCD061EB38DBB870DBC5E9A3197">policy preferences</a> into law. <a href="https://mqscores.lsa.umich.edu/">For example</a>, Ginsburg grew more liberal over time, while Thomas has become more conservative. </p>
<p>Other Americans’ <a href="https://www.journals.uchicago.edu/doi/abs/10.1086/706889">political preferences</a> tend to be stable throughout their lives. </p>
<p>The consequence is that Supreme Court justices may no longer reflect the America they preside over. This can be problematic. If the court were to routinely stray too far from the public’s values, <a href="https://www.washingtonpost.com/politics/2020/10/23/why-americans-are-perfectly-willing-undermine-integrity-independence-supreme-court/">the public could reject</a> its dictates. The Supreme Court relies on public confidence to <a href="https://doi.org/10.2307/2111585">maintain its legitimacy</a>.</p>
<p>Life tenure has also turned staffing the Supreme Court into an increasingly <a href="https://www.pbs.org/newshour/nation/is-the-hyper-partisan-supreme-court-confirmation-process-the-new-normal">partisan process</a>, politicizing one of the <a href="https://www.jstor.org/stable/25791761">nation’s most powerful institutions</a>.</p>
<p>In the 1980s and 1990s, Supreme Court nominees could generally expect large, bipartisan <a href="https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm">support in the Senate</a>. Today, judicial confirmation votes are almost <a href="https://www.pewresearch.org/fact-tank/2018/03/07/federal-judicial-picks-have-become-more-contentious-and-trumps-are-no-exception/">strictly down party lines</a>. Public support for judicial nominees also shows <a href="https://news.gallup.com/poll/322232/amy-coney-barrett-seated-supreme-court.aspx">large differences</a> between Democrats and Republicans.</p>
<p>Life tenure can turn supposedly independent judges into <a href="https://www.latimes.com/opinion/op-ed/la-oe-ward-kennedy-retirement-20180629-story.html">political players</a> who <a href="https://www.tristatehomepage.com/news/justice-ginsburgs-fervent-last-wish-was-to-not-be-replaced-until-a-new-president-is-installed-report-says/">attempt to time their departures</a> to secure their <a href="https://www.nytimes.com/2020/09/21/magazine/ginsburg-successor-obama.html">preferred successors</a>, as Justice Anthony Kennedy did in 2018. Trump appointed Brett Kavanaugh, one of Kennedy’s <a href="https://www.washingtonpost.com/politics/courts_law/justice-kennedy-asked-trump-to-put-kavanaugh-on-supreme-court-list-book-says/2019/11/21/3495f684-0b0f-11ea-8397-a955cd542d00_story.html">former clerks</a>, to replace him.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Supreme Court Justice Anthony Kennedy is presented a medal." src="https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=507&fit=crop&dpr=1 754w, https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=507&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=507&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Justice Anthony Kennedy receiving the 2019 Liberty Medal from Justice Neil Gorsuch.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/retired-supreme-court-justice-anthony-kennedy-is-presented-news-photo/1178587667?adppopup=true">William Thomas Cain/Getty Images</a></span>
</figcaption>
</figure>
<h2>The proposed solution</h2>
<p>Many <a href="https://blogs.chicagotribune.com/files/supctlawcalabresi.pdf">Supreme Court</a> <a href="https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2009%2F02%2Fjudiciary-act-of-2009.do">experts</a> have coalesced around a <a href="https://www.amacad.org/sites/default/files/publication/downloads/2020-Democratic-Citizenship_Our-Common-Purpose_0.pdf">solution</a> to these problems: <a href="https://fixthecourt.com/fix/term-limits/">staggered, 18-year terms</a> with a <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2017/03/23/why-not-limit-neil-gorsuch-and-all-supreme-court-justices-to-18-year-terms/">vacancy automatically occurring</a> every two years <a href="https://www.theatlantic.com/politics/archive/2014/05/its-time-for-term-limits-for-the-supreme-court/371415/">in nonelection years</a>. </p>
<p>This system would promote <a href="https://www.brennancenter.org/our-work/analysis-opinion/saving-supreme-court">judicial legitimacy</a>, they argue, by taking departure decisions <a href="https://www.cnn.com/2019/03/20/politics/sandra-day-oconnor-supreme-court-evan-thomas-book">out of the justices’ hands</a>. It would help insulate the court from becoming a <a href="https://www.nytimes.com/2016/05/19/us/politics/donald-trump-supreme-court-nominees.html">campaign issue</a> because <a href="https://www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-in-2016-and-why-it-matters-now">vacancies would no longer arise</a> during election years. And it would <a href="https://www.reuters.com/article/us-usa-court-termlimits/democrats-prepare-bill-limiting-u-s-supreme-court-justice-terms-to-18-years-idUSKCN26F3L3">preserve judicial independence</a> by shielding the court from political calls to fundamentally alter the institution. </p>
<p>Partisanship would still tinge the selection and confirmation of judges by the president and Senate, however, and ideological extremists could still reach the Supreme Court. But they would be limited to 18-year terms. </p>
<p>The U.S. Supreme Court is one of the world’s few high courts to have life tenure. <a href="https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780198810230.001.0001/oxfordhb-9780198810230-e-39">Almost all democratic nations</a> have either <a href="https://blogs.chicagotribune.com/files/supctlawcalabresi.pdf">fixed terms or mandatory retirement ages</a> for their top judges. Foreign courts have encountered <a href="https://academic.oup.com/ojls/article-abstract/35/4/627/2472456?redirectedFrom=fulltext">few problems</a> with term limits. </p>
<p>Even England – the country on which the U.S. model is based – no longer grants its Supreme Court justices life tenure. They <a href="https://www.supremecourt.uk/docs/scotus-and-uksc-comparative-learning-tool.pdf">must now retire</a> at 70. </p>
<p>Similarly, although many U.S. states initially granted their supreme court judges life tenure, <a href="http://www.judicialselection.us/uploads/documents/Berkson_1196091951709.pdf">this changed</a> during the Jacksonian era of the 1810s to 1840s when states sought to increase the accountability of the judicial branch. Today, only supreme court judges in <a href="https://www.providencejournal.com/news/20200118/changes-ahead-for-ris-aging-supreme-court">Rhode Island</a> have life tenure. All other states either have <a href="https://www.ncsc.org/information-and-resources/trending-topics/trending-topics-landing-pg/mandatory-judicial-retirement">mandatory retirement ages</a> or let voters choose when judges leave the bench through <a href="https://www.routledge.com/Judicial-Elections-in-the-21st-Century/Bonneau-Hall/p/book/9781138185890">judicial elections</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The Supreme Court of the United States, 1894." src="https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=506&fit=crop&dpr=1 600w, https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=506&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=506&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=636&fit=crop&dpr=1 754w, https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=636&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=636&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Back in 1894, the Supreme Court was older – not to mention whiter and all male.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-supreme-court-of-the-united-states-including-justices-news-photo/640485281?adppopup=true">C.M. Bell/Library of Congress/Corbis/VCG via Getty Images</a></span>
</figcaption>
</figure>
<p>Polling consistently shows <a href="https://www.reuters.com/article/us-usa-court-poll/americans-favor-supreme-court-term-limits-reuters-ipsos-poll-idUSKCN0PU09820150720">a large bipartisan</a> <a href="https://www.reuters.com/business/legal/most-americans-want-end-lifetime-supreme-court-appointments-2021-04-18/">majority</a> of Americans support ending life tenure. This likely reflects <a href="https://fivethirtyeight.com/features/why-the-supreme-courts-reputation-is-at-stake/">eroding public confidence</a> as the court routinely issues <a href="https://slate.com/news-and-politics/2020/03/kansas-v-garcia-scotus-ideological-splits.html">decisions down partisan lines</a> on the day’s most controversial issues. Although ideology has <a href="https://press.princeton.edu/books/hardcover/9780691175522/ideology-in-the-supreme-court">long influenced</a> Supreme Court decisions, today’s court is <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2018/06/29/it-took-conservatives-50-years-to-get-a-reliable-majority-on-the-supreme-court-here-are-3-reasons-why/">unusual</a> because all the conservative justices are Republicans and all the liberal justices are Democrats.</p>
<p>In April 2021, President Biden <a href="https://www.nytimes.com/2021/04/15/us/politics/supreme-court-commission.html">formed a committee</a> to examine <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/09/president-biden-to-sign-executive-order-creating-the-presidential-commission-on-the-supreme-court-of-the-united-states/">reforming the Supreme Court</a>, including term-limiting justices. <a href="https://crsreports.congress.gov/product/pdf/R/R46731">To end the justices’ life tenure</a> would likely mean a constitutional amendment requiring approval from two-thirds of both houses of Congress and three-fourths of U.S. states. </p>
<p>Ultimately, Congress, the states and the public they represent will decide whether the country’s centuries-old lifetime tenure system still serves the needs of the American people.</p>
<p>[<em>The Conversation’s Politics + Society editors pick need-to-know stories.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-need-to-know">Sign up for Politics Weekly</a>.]</p><img src="https://counter.theconversation.com/content/159620/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Unlike in most countries, US Supreme Court justices enjoy life tenure. Some legal scholars believe that centuries-old custom, meant to protect judicial independence, no longer serves the public.
Paul M. Collins Jr., Professor of Legal Studies and Political Science, UMass Amherst
Artemus Ward, Professor of Political Science, Northern Illinois University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/160142
2021-05-10T12:32:26Z
2021-05-10T12:32:26Z
States pick judges very differently from US Supreme Court appointments
<figure><img src="https://images.theconversation.com/files/399326/original/file-20210506-14-1hfx412.jpg?ixlib=rb-1.1.0&rect=35%2C0%2C4000%2C2658&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Political pressure is focusing on the makeup of the U.S. Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-u-s-supreme-court-stands-on-december-11-2020-in-news-photo/1230073841">Stefani Reynolds/Getty Images</a></span></figcaption></figure><p>The future of the U.S. Supreme Court is <a href="https://theconversation.com/supreme-court-losing-luster-in-publics-eyes-55802">politically fraught</a>. </p>
<p>The <a href="https://theconversation.com/3-ways-a-6-3-supreme-court-would-be-different-146558">court’s partisan balance</a> has <a href="https://theconversation.com/liberals-in-congress-and-the-white-house-have-faced-a-conservative-supreme-court-before-154782">long</a> been a <a href="https://theconversation.com/partisan-supreme-court-battles-are-as-old-as-the-united-states-itself-146657">hot-button issue</a>, and both Democrats and Republicans can correctly claim that the other party bears at least <a href="https://www.npr.org/2017/04/04/522598965/going-nuclear-how-we-got-here">some blame</a> for the <a href="https://theconversation.com/is-the-supreme-courts-legitimacy-undermined-in-a-polarized-age-99473">politicization of the federal judiciary</a>.</p>
<p>In 2016, appointments to the U.S. Supreme Court became even more overtly political when conservative Justice <a href="https://theconversation.com/former-clerk-on-justice-antonin-scalia-and-his-impact-on-the-supreme-court-55211">Antonin Scalia</a> died and the <a href="https://www.youtube.com/watch?v=YqRJXVXcVeE">U.S. Senate’s Republican majority refused</a> to let President Barack Obama <a href="https://theconversation.com/filling-the-supreme-court-vacancy-lessons-from-1968-55010">fill the vacancy</a>. </p>
<p>This delay ultimately gave soon-to-be President Donald Trump the chance to seat conservative <a href="https://theconversation.com/who-is-neil-gorsuch-72142">Neil Gorsuch</a> as Scalia’s replacement. Four years later, though, <a href="https://thehill.com/homenews/senate/527448-mcconnell-pushed-trump-to-nominate-coney-barrett-on-the-night-of-ginsburgs">Republicans rushed</a> to <a href="https://theconversation.com/can-trump-and-mcconnell-get-through-the-4-steps-to-seat-a-supreme-court-justice-in-just-6-weeks-146544">fill the vacancy</a> left by the death of liberal Justice <a href="https://theconversation.com/ginsburgs-legal-victories-for-women-led-to-landmark-anti-discrimination-rulings-for-the-lgbtq-community-too-146546">Ruth Bader Ginsburg</a> less than two months before a presidential election.</p>
<p>Now, with Democrats in control of the White House and – barely – the U.S. Senate, some within the party have been <a href="https://judiciary.house.gov/news/documentsingle.aspx?DocumentID=4508">calling for President Joe Biden to add more justices to the U.S. Supreme Court</a> in hopes of <a href="https://www.usatoday.com/story/opinion/2020/10/29/republicans-packed-supreme-court-expand-repair-damage-column/6054522002/">reversing</a> Republican <a href="https://theconversation.com/mitch-mcconnells-legacy-is-a-conservative-supreme-court-shaped-by-his-calculated-audacity-147062">efforts</a> to <a href="https://www.theguardian.com/us-news/2020/apr/28/donald-trump-judges-create-new-conservative-america-republicans">enshrine conservatism</a> within the courts.</p>
<p>In response to those calling for reform, Biden has created the <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/09/president-biden-to-sign-executive-order-creating-the-presidential-commission-on-the-supreme-court-of-the-united-states/">Presidential Commission on the Supreme Court of the United States</a>, whose mission “is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.”</p>
<p>This commission – which includes <a href="https://news.bloomberglaw.com/us-law-week/bidens-supreme-court-commission-whos-on-it-and-why-explained">scholars, lawyers and political advisers</a> – could <a href="https://theconversation.com/supreme-court-polarization-is-not-inevitable-just-look-at-europe-99356">look at top courts overseas for ideas</a> about how to <a href="https://theconversation.com/unlike-us-europe-picks-top-judges-with-bipartisan-approval-to-create-ideologically-balanced-high-courts-146550">depoliticize</a> the U.S. Supreme Court. But its members could also learn lessons from the states, many of which have already taken steps to insulate their judicial branches from partisan politics.</p>
<p><iframe id="z290V" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/z290V/4/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>State court lessons for depoliticization</h2>
<p>Following the model set by the U.S. Constitution, <a href="https://www.lindenwood.edu/files/resources/stuteville.pdf">many state constitutions</a> initially called for governors to appoint state judges for life with the advice and consent of the state’s Senate. Over time, many felt that this system empowered governors to award judgeships based upon party loyalty <a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3830&context=mlr">rather than judicial temperament and fair-mindedness</a>. </p>
<p>In the mid-1800s, <a href="https://www.history.com/news/andrew-jackson-populism">populism</a> swept the country. This movement toward giving power to the public prompted several states to amend their state constitutions to allow for the <a href="http://www.judicialselection.us/judicial_selection/reform_efforts/formal_changes_since_inception.cfm">popular election of judges</a>. </p>
<p>This did not solve the problem of judicial politicization, as <a href="http://judicialselection.us/uploads/documents/Berkson_1196091951709.pdf">judges were often beholden to the political machines that helped them get elected</a>. As such, the public began to perceive elected judges as both partisan and corrupt, and turned against the courts. For example, <a href="https://core.ac.uk/download/pdf/217044329.pdf">between 1918 to 1940</a> only two Missouri Supreme Court judges were reelected.</p>
<p>In <a href="http://judicialselection.us/judicial_selection/reform_efforts/formal_changes_since_inception.cfm?state=">1940</a>, Missouri became <a href="https://docs.lib.purdue.edu/cgi/viewcontent.cgi?article=2147&context=open_access_dissertations">the first state</a> to adopt what is now called the “<a href="https://www.britannica.com/topic/Missouri-Plan">Missouri Plan</a>” for selecting judges, which involves two elements: “assisted appointments” and nonpartisan “retention elections.” </p>
<p>Typically, for assisted appointments, a nonpartisan commission reviews candidates for state judgeships, creating a list of potential nominees <a href="http://www.judicialselection.us/uploads/documents/ms_descrip_1185462202120.pdf">based on merit</a>. The governor fills vacancies on the bench by choosing from this predetermined list. In such a system, <a href="http://www.judicialselection.us/uploads/Documents/Judicial_Merit_Charts_0FC20225EC6C2.pdf">the governor’s pick does not usually need to be confirmed by the state legislature</a> because the pick has already been vetted by the nonpartisan commission. </p>
<p>For retention elections, judges face no opponent and are listed on the ballot <a href="https://www.courts.mo.gov/page.jsp?id=297">without political party designation</a>. Voters are simply asked whether an incumbent judge should remain in office, which provides an opportunity to oust judges who regularly make unpopular decisions. Retention elections are often held in states that use assisted appointments. However, in some states that still elect their judges using partisan elections, such as <a href="https://ballotpedia.org/Judicial_selection_in_Illinois">Illinois</a>, nonpartisan retention elections are used when it’s time for reelection.</p>
<p>Today, <a href="https://ballotpedia.org/Assisted_appointment_(judicial_selection)">more than 30 states</a> use some form of assisted appointments. <a href="https://ballotpedia.org/Retention_election">More than 20 states</a> use some variation of retention elections. More than a dozen states use both in some capacity. Notably, both “red” states and “blue” states have adopted one or both of these reforms, as have many “purple” states.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men shake hands" src="https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=430&fit=crop&dpr=1 600w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=430&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=430&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=540&fit=crop&dpr=1 754w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=540&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=540&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Barack Obama’s nomination of Merrick Garland to the U.S. Supreme Court sparked a partisan fight.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ObamaSupremeCourt/7f2430eea2f8409cbe62880a1039cbe3/photo">AP Photo/Pablo Martinez Monsivais</a></span>
</figcaption>
</figure>
<h2>Showing the way forward?</h2>
<p><a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3841&context=mlr">Advocates of Missouri’s nonpartisan court plan</a> argue that the reforms have been a <a href="https://www.courts.mo.gov/page.jsp?id=297">success</a>. According to <a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3830&context=mlr">Sandra Day O'Connor</a>, <a href="https://www.britannica.com/biography/Sandra-Day-OConnor">the first woman to serve on the U.S. Supreme Court</a>, “the ‘Show-Me State’ … has shown the nation how we can do a better job of selecting our judges.”</p>
<p>If the federal government adopted assisted appointments, campaign tactics like Trump’s 2016 <a href="https://www.youtube.com/watch?v=wd06ZjhEEEk">promise to appoint pro-life, conservative judges</a> would be less <a href="https://www.washingtonpost.com/news/politics/wp/2018/06/26/a-quarter-of-republicans-voted-for-trump-to-get-supreme-court-picks-and-it-paid-off/">relevant</a>, because presidents would be limited in whom they could nominate for a court vacancy.</p>
<p>[<em>Over 100,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<p>Additionally, if voters could remove U.S. Supreme Court justices whose opinions <a href="https://www.npr.org/2020/10/05/920416357/justices-thomas-alito-blast-supreme-court-decision-on-gay-marriage-rights">differ</a> from that of the <a href="https://www.nbcnews.com/feature/nbc-out/support-gay-marriage-reaches-all-time-high-survey-finds-n1244143">majority</a> of Americans, politicians might not feel as pressured to block the appointment of a <a href="https://theconversation.com/will-merrick-garland-joe-bidens-pick-for-attorney-general-be-independent-in-that-role-history-says-its-unlikely-151952">particular justice for partisan reasons</a>, as the judge would serve on the bench for only as long as they retained <a href="https://theconversation.com/are-you-suddenly-interested-in-the-supreme-court-youre-not-alone-99657">public support</a>.</p><img src="https://counter.theconversation.com/content/160142/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Many states have found ways to remove partisan politics from their court systems.
Joshua Holzer, Assistant Professor of Political Science, Westminster College
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/160014
2021-05-09T08:23:47Z
2021-05-09T08:23:47Z
Choosing Lesotho’s judges on merit should be only the start of judicial reforms
<figure><img src="https://images.theconversation.com/files/398672/original/file-20210504-13-ecx2u3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The move towards an open process for appointing judges is unprecedented in Lesotho.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Lesotho’s Judicial Service Commission has started a process to recruit seven judges of the High Court through a merit-based process. In February 2021, the Commission issued a <a href="https://www.gov.ls/documents/public-announcement-of-judicial-vacancies-in-the-high-court-of-the-kingdom-of-lesotho/">public advertisement</a> announcing the vacancies and spelling out the competencies required. The vacancies follow a slew of deaths and retirements of judges. </p>
<p>The High Court is the second highest court in <a href="https://www.britannica.com/place/Lesotho">Lesotho</a>; after the Court of Appeal. But, the High Court is more important as it is the highest court with unlimited original jurisdiction to hear and determine any civil or criminal proceedings, and the power to review the decisions or proceedings of any subordinate court or tribunal. Since 2000, the court sits as a constitutional court when it decides on <a href="https://lesotholii.org/legislation/sl/194">constitutional matters</a>.</p>
<p>The <a href="https://www.constituteproject.org/constitution/Lesotho_2011.pdf?lang=en">Constitution</a> provides that the High Court shall comprise the Chief Justice and any number of judges as the Act of parliament may determine. Judges are appointed by the King on the advice of the Judicial Service Commission (JSC). The JSC is a constitutional structure responsible for the appointment, conduct and removal of judicial officers.</p>
<p>The advertisement was intended to culminate in public interviews of shortlisted candidates in May. But the process has been suspended due to <a href="https://he-il.facebook.com/Informativenewspaper/posts/10160934367678989">lack of funding</a>. </p>
<p>Nevertheless, the move to appoint judges through an open process based on merit is unprecedented in Lesotho, a small nation that is completely landlocked by South Africa, and thus laudable. So far, the appointment of judges has been an obscure and oftentimes clandestine affair between the Commission and government. This has produced incompetent judges and claims that the judiciary is beholden to the executive. </p>
<p>Welcome as it is, the move towards an open process is only a small step in reforming the country’s judiciary. The appointment of judicial officers in Lesotho is beset with much deeper systemic problems that need urgent attention.</p>
<h2>The practice so far</h2>
<p>In the past, the public used to simply see a person being announced as a judge of the High Court by the JSC. The usual practice has been to appoint a person as an acting judge, which would ordinarily attract little public scrutiny, and later confirm the person as a permanent judge. </p>
<p>This deplorable practice is arguably a factor, among others, contributing to the current <a href="http://www.icj.org/wp-content/uploads/2014/10/Lesotho-Crisis-judicial-leadership-Publications-Mission-report-2014-ENG.pdf">state of incompetence</a> in the High Court. The Court of Appeal often <a href="https://lesotholii.org/ls/judgment/court-appeal/2019/2-0">decries</a> the quality of the <a href="https://lestimes.com/mosito-slams-high-court-judges/">judgments</a> of the High Court judges.</p>
<p>Until now, the JSC and government have tended to promote either magistrates or registrars of the High Court to the bench. The registrar is the chief accounting officer for the judiciary. Even this practice was not based on any objective criteria. </p>
<p>Sometimes, very junior magistrates would be appointed over more senior and competent ones. That practice excluded other areas of the legal profession, such as private legal practitioners (lawyers) and legal academics.</p>
<figure class="align-left ">
<img alt="A man wearing a suit and tie stares in the distance" src="https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=899&fit=crop&dpr=1 600w, https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=899&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=899&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1130&fit=crop&dpr=1 754w, https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1130&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1130&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Lesotho’s constitutional monarch, King Letsie III.</span>
<span class="attribution"><span class="source">Photo © Crozet / Pouteau</span></span>
</figcaption>
</figure>
<p>Perhaps the new approach to recruiting judges is inspired by the practice <a href="https://www.judgesmatter.co.za/jsc-candidates-april-2021-and-april-2020/">in South Africa</a>, and the fact that Lesotho is in the process of constitutional reforms.</p>
<p>Hopefully, the drive for meritocracy in the High Court will be applied across all facets of the judiciary to make it genuinely meritorious. </p>
<h2>The bigger problem</h2>
<p>While the new move is welcome, a lot still remains to be done to enhance merit in the appointment of <a href="http://trc.org.ls/wp-content/uploads/2019/09/JUDICIAL-REFORMS-IN-LESOTHO-A-CASE-FOR-CHANGING-THE-BASE-AND-THE-SUPERSTRUCTURE.pdf">judges of the superior courts</a> in Lesotho. </p>
<p>The problem is that meritocracy is currently not a constitutional requirement. The Constitution is still cast in the <a href="http://trc.org.ls/wp-content/uploads/2019/09/JUDICIAL-REFORMS-IN-LESOTHO-A-CASE-FOR-CHANGING-THE-BASE-AND-THE-SUPERSTRUCTURE.pdf">colonial mould</a> whereby the executive dominates the appointment of judges. That needs to change. </p>
<p>The problem is more acute when it comes to the appointment of judicial leaders – the Chief Justice and the President of the Court of Appeal. They are appointed through a purely political process.</p>
<p>The Constitution provides that the King appoints them on the advice of the Prime Minister. There is no constitutional requirement for competition or scrutiny. Consequently, successive PMs have treated it as an executive prerogative and exploited this deficiency to their political advantage. Hence the judiciary has been <a href="https://freedomhouse.org/sites/default/files/Politics%20%20of%20Judicial%20Independence%20in%20Lesotho.pdf">enmeshed in politics</a>. The high turnover in the offices of President of the Court of Appeal and that of Chief Justice in recent times is testament to the manner in which the judiciary is entangled in politics.</p>
<p>When it comes to the appointment of other High Court judges, other than the Chief Justice, it is slightly better. That’s because the Constitution created the Judicial Services Commission as an interlocutor. But the Commission is weirdly constituted. </p>
<p>In terms of section 132(1) of the <a href="https://www.constituteproject.org/constitution/Lesotho_2011.pdf?lang=en">Constitution</a>, the Commission consists of four members: the Chief Justice as chairperson, the attorney general, chairman of the public service commission and a judge or former judge chosen by the King, on the advice of the Chief Justice.</p>
<p>The Commission’s composition is skewed in favour of the executive as all its members are direct or indirect appointees of the executive. This is not surprising as the entire relationship between the three arms of government - parliament, the executive and the judiciary - in Lesotho turns on the strong executive that overshadows the other two branches. This is a profoundly ingrained constitutional problem.</p>
<h2>Move towards meritocracy</h2>
<p>The new move towards openness comes after a previous process to appoint High Court judges was invalidated by the Constitutional Division of the High Court <a href="https://lesotholii.org/ls/judgment/high-court-constitutional-division/2020/57-0">in December 2020</a>. </p>
<p>It found the process to have been clandestine and irregular. The former acting Chief Justice and former Attorney General had secretly constituted themselves into a Judicial Services Commission, and appointed their preferred five candidates to the bench.</p>
<p>The registrar, who was allegedly <a href="https://lestimes.com/clash-of-the-titans-4/">on the list of candidates</a>, then wrote to King Letsie III to advise him to appoint those candidates. The registrar is the secretary to the Commission. </p>
<p>The King <a href="https://africanlii.org/article/20200910/litigation-lesotho-king-declines-appoint-judges">declined to appoint the judges</a>, citing irregularity in the appointment process. The then Minister of Justice, <a href="https://www.thepost.co.ls/news/mahao-back-at-varsity/">Nqosa Mahao</a>, also openly opposed the appointment as <a href="https://allafrica.com/stories/202010070537.html">irregular</a>. The Constitutional Division of the High Court <a href="https://lesotholii.org/ls/judgment/high-court-constitutional-division/2020/57-0">confirmed this view</a>.</p>
<h2>What needs to happen</h2>
<p>There is, therefore, a need for a more comprehensive judicial reforms in Lesotho. Fortunately, the country is in a somewhat sluggish <a href="http://democracyinafrica.org/perilous-state-national-reforms-lesotho/">constitutional reform programme</a> which includes, among others, the reforms of the judiciary.</p>
<p>It is vital that the reforms recast the relationship between the executive and judicial branches of government to reduce the executive’s excessive powers over the judiciary, including the appointment of judges. </p>
<p>The JSC, as the buffer between the two branches, will also have to change. Its composition, processes of appointment and powers over the judicial officers will have to change significantly. Its membership will have to be more diverse and reduce executive dominance.</p>
<p>Its mandate will then have to be expanded to include the appointment, discipline and removal of all judicial officers - including the Chief Justice and the President of the Court of Appeal.</p><img src="https://counter.theconversation.com/content/160014/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hoolo 'Nyane does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The appointment of judges has hitherto been an obscure and oftentimes clandestine affair. This has produced incompetent judges and led to claims that the judiciary is beholden to the executive.
Hoolo 'Nyane, Head of Department, Public and Environmental Law Department, University of Limpopo
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/159338
2021-04-22T15:08:25Z
2021-04-22T15:08:25Z
South Africa is set to appoint a new chief justice. The stakes have never been so high
<figure><img src="https://images.theconversation.com/files/396033/original/file-20210420-13-1izfv92.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African chief justice Mogoeng Mogoeng's term ends in September. </span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>By October, South Africa’s Chief Justice, <a href="https://www.concourt.org.za/index.php/judges/current-judges/13-current-judges/71-justice-mogoeng-mogoeng">Mogoeng Mogoeng</a>, will have finished his 12-year term at the helm of the Constitutional Court. How will his successor be selected, and what qualities are needed by the holder of this high office?</p>
<p>To answer these questions we need to understand the context. This is because the country’s judiciary has been increasingly drawn into party political wrangling and contestation.</p>
<p>Any form of constitutional democracy which allows judicial review of the exercise of public power thrusts the courts into the political limelight. Inevitably, acts and decisions of parliament, the president and cabinet will be challenged against the constitutional framework. The <a href="https://www.gov.za/about-government/contact-directory/judicial-institution/judicial-institution/superior-courts-south#">superior courts</a> of the country provide the forum in which this plays out. </p>
<p>If there is no rule of law, brute force, random acts of violence and popular anarchy become the avenues for settling scores. In South Africa, the determination never to repeat the devastating legacies of apartheid resulted in <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">“the supremacy of the constitution and the rule of law”</a> being enshrined as fundamental values, justiciable and enforceable by the courts.</p>
<p>This has inevitably raised the political profile of the judges, especially their leaders, given that they effectively have the final say on what the words in the constitution mean. </p>
<p>The judicial process is thus hugely contested. This places an exaggerated burden on the courts to act with maximum independence and impartiality. Without such qualities, the judiciary runs the risk of losing its legitimacy among the public, ultimately its surest form of protection from interference.</p>
<h2>Out of sync</h2>
<p>The exercise of constitutional authority in South Africa is constrained by the checks and balances inherent in the <a href="http://www.saflii.org/za/journals/DEREBUS/2014/118.pdf">doctrine of the separation of powers</a>. It requires each branch of government (parliament, the cabinet and the courts) to show mutual respect to the others.</p>
<p>If one branch of government fails in its regulatory role, an imbalance is created. In turn this means that other branches are subject to unjustified pressure.</p>
<p>This happened in South Africa between <a href="http://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">May 2009 to February 2018</a>, when the regime of former President Jacob Zuma manifestly and <a href="https://www.loot.co.za/product/richard-calland-the-zuma-years/lwlk-1845-g5a0">corruptly abused its constitutional authority</a>. Parliament failed dismally to fulfil its constitutional obligation to <a href="https://www.dailymaverick.co.za/article/2021-04-19-speaker-thandi-modise-does-damage-control-apologises-for-parliament-seeming-to-be-sleepist-and-pleads-for-more-resources/">hold the executive accountable</a>. </p>
<p>As a result, those who wished to challenge such abuse of power and to uphold the constitution, approached the courts. This increasing resort to the courts came to be known as <a href="https://www.litnet.co.za/reader-impression-lawfare-judging-politics-in-south-africa-by-michelle-le-roux-and-dennis-davis/">“lawfare”</a>. The more frequently the courts found against actions and decisions of the government, the more virulently the political leadership of the governing African National Congress <a href="https://www.sowetanlive.co.za/news/2011-08-18-full-interview-ancs-mantashe-lambasts-judges/">criticised the judges</a>.</p>
<p>The level of such lawfare has subsided since President Cyril Ramaphosa came to power in <a href="http://www.thepresidency.gov.za/profiles/president-cyril-ramaphosa%3A-profile">February 2018 </a>, with one exception. Those whose abuse of power has been exposed through the <a href="https://www.sastatecapture.org.za/">Zondo Commission into state capture</a> or through the investigative media have <a href="https://www.sowetanlive.co.za/news/south-africa/2019-08-16-general-council-of-the-bar-criticises-malemas-veiled-attacks-on-judges/">vilified the courts</a> generally in public, or targeted specific judges for <a href="https://theconversation.com/how-zuma-uses-war-metaphor-to-fight-allegations-of-graft-in-south-africa-156223">scandalous attack</a>.
This is the context in which a new Chief Justice will be appointed in South Africa later this year.</p>
<h2>What should be taken into account</h2>
<p>Formally, the constitution is clear: <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">section 174 (3)</a> provides that</p>
<blockquote>
<p>The President as head of the national executive, after consulting the [Judicial Service Commission] and the leaders of parties represented in the National Assembly, appoints the Chief Justice.</p>
</blockquote>
<p>This means that the president must act in consultation with his cabinet, and after consultation with the <a href="https://www.judiciary.org.za/index.php/judicial-service-commission/about-the-jsc">Judicial Service Commission</a> and other political leaders (consultation is required but the advice given need not be followed).</p>
<p>Given the highly contested nature of the judicial process, I would argue that the following criteria should be uppermost in Ramaphosa’s mind when selecting the next chief justice:</p>
<ul>
<li><p>Strong credentials as an intellectual leader on the Bench, enjoying the respect of their peers in the superior courts. The Chief Justice needs to be able to be confident that, having taken a stance on behalf of the judiciary as a whole, the judges will support him or her;</p></li>
<li><p>A clear proponent of the transformative nature of the entire constitutional framework, with a jurisprudential track record to back up such a stance. In other words, that a judge has given judgments in the past that show their understanding of – and commitment to – transformation to achieve social justice. The <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a> demands this;</p></li>
<li><p>Proven capacity to lead the judiciary as a whole. Precisely because they should be appointed for their independence of mind, among other qualities, judges need particularly nuanced and skillful leadership to ensure that they remain committed to the overall success of the constitutional project. An engaged and wise leader will ensure this;</p></li>
<li><p>An impressive record as a manager, preferably within the administration of justice. The <a href="https://nationalgovernment.co.za/units/view/28/office-of-the-chief-justice-ocj">Office of the Chief Justice</a> has been a department of state for a number of years. This means that the incumbent must also give operational and administrative guidance to the entire administration of justice. At the same time, the Chief Justice must maintain his or her judicial profile by presiding over matters in the apex court;</p></li>
<li><p>Manifest ability to engage credibly with the general public, reassuring it of the fair-minded, principled, fearless, and incorruptible nature of those appointed as judges, and of the superior court system as a whole. </p></li>
</ul>
<h2>Independence is key</h2>
<p>Furious controversies have been sparked by the failure of the current Chief Justice Mogoeng to <a href="https://www.businesslive.co.za/bd/national/2021-03-04-chief-justice-mogoeng-mogoeng-chided-for-wilful-misconduct-over-israel-comments/">separate his religious views</a> from his public office.</p>
<p>His successor must tread carefully when tempted to enter the broader political terrain. This is a key quality. Legitimacy (in the sense of public trust and confidence) is the final guarantor of judicial independence. Without it the courts are susceptible to party political abuse and undermining. The judiciary needs a strong, principled, articulate and fearless person to lead it.</p>
<p>These are high stakes indeed. The appointment of the next Chief Justice is a matter which should concern all South African and, I would argue, those who value the rule of law across the continent and beyond.</p><img src="https://counter.theconversation.com/content/159338/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Corder has received funding in the past from the National Research Foundation of South Africa.. He serves as a Director of Freedom under Law and on the Executive Committee of the Council for the Advancement of the South African Constitution (CASAC). This article is written in his personal capacity, and it does not necessarily reflect the views of any of the above bodies.. </span></em></p>
The judicial process in South Africa is hugely contested. This places an exaggerated burden on the courts to act with maximum independence and impartiality.
Hugh Corder, Professor of Public Law, University of Cape Town
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/147466
2020-10-07T14:55:47Z
2020-10-07T14:55:47Z
Zuma’s attack on a judge is without merit, but it’s dangerous for South Africa
<figure><img src="https://images.theconversation.com/files/361831/original/file-20201006-18-1ky53oe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African president Jacob Zuma at the Zondo Commission in July 2020.
</span> <span class="attribution"><span class="source">EFE-EPA/Mike Hutchings</span></span></figcaption></figure><p><a href="https://theconversation.com/post-truth-politics-and-why-the-antidote-isnt-simply-fact-checking-and-truth-87364">“Post-truth”</a> culture is exemplified by the constant negation of fact-finding, expertise and <a href="https://www.theguardian.com/books/2018/jul/14/the-death-of-truth-how-we-gave-up-on-facts-and-ended-up-with-trump">research</a>. Within such a culture, speakers, whether they occupy positions of power or are commenting anonymously on social media, become increasingly comfortable with claiming that reality is whatever they say it is. This, without any need to offer evidence which can be evaluated against objective criteria through <a href="https://www.politifact.com/factchecks/list/?speaker=donald-trump&ruling=false">reasoned argument</a>. </p>
<p>Former South African president Jacob Zuma adopted this approach when he recently demanded that Deputy Chief Justice <a href="https://www.concourt.org.za/index.php/13-current-judges/72-deputy-chief-justice-ray-zondo">Ray Zondo</a>, the head of the <a href="https://www.sastatecapture.org.za/">state capture inquiry</a> investigating grand corruption during Zuma’s tenure, recuse himself. He claimed the judge was biased against him. </p>
<p>His lawyer’s letter to the commission <a href="https://www.dailymaverick.co.za/article/2020-09-30-zumas-move-to-recuse-zondo-cynicism-meets-panic-meets-staggering-hypocrisy/">states</a> that Zuma is “of the firm view” that Zondo’s alleged bias against him stems from “personal matters and strained relations that the chairperson ought to have disclosed right at the beginning of the inquiry” and</p>
<blockquote>
<p>the fact that the President and the Chairperson have historical, personal, family and professional relations that ought to have been publicly disclosed by the chairperson before accepting his appointment.</p>
</blockquote>
<p>No evidence is provided of the strained relations, nor of what aspect of Justice Zondo’s and Zuma’s personal dealings could have resulted in bias. Zuma’s “view” alone is sufficient.</p>
<h2>Testing impartiality of judges</h2>
<p>Claiming a right to determine reality by mere say-so is becoming increasingly commonplace, but we should never get used to it. It is dangerous, because it has the potential to destroy two of the foundations of a healthy society: recognising the distinction between facts and opinions, and using reasoned argument, rather than status, to establish the truth.</p>
<p>Since 1999, we have had a test for the impartiality of individual judges from the Constitutional Court case of <a href="http://www.saflii.org/za/cases/ZACC/1999/9.html">President of the Republic of South Africa and Others v South African Rugby Football Union (Sarfu) and Others</a>. In this case, the head of the South African Football Union, Louis Luyt, asked five of the judges on the Constitutional Court to recuse themselves because of their personal relationship with Nelson Mandela, the president of democratic South Africa at the time.</p>
<p>Luyt complained that the then Chief Justice <a href="https://www.sahistory.org.za/people/chief-justice-arthur-chaskalson">Arthur Chaskalson</a> had attended the wedding of Mandela’s son. He also said other judges had been closely associated with the governing party, the African National Congress (ANC), before their appointment to the Constitutional Court.</p>
<p>The court rejected the application. It held that the test that the applicant had to meet was objective, and that the onus of establishing it rested upon the applicant, who had to show that</p>
<blockquote>
<p>a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel.</p>
</blockquote>
<p>The judge himself or herself decides the application, although refusals to recuse can be taken on review to higher courts. The court also emphasised the presumption that judicial officers are impartial in adjudicating disputes, because </p>
<blockquote>
<p>legal training and experience prepare judges (to determine) where the truth may lie in a welter of contradictory evidence.</p>
</blockquote>
<p>Finally, the court stressed strongly that the reasonable apprehension must be that “the judicial officer will not decide the case impartially” and not that he or she “will decide the case adversely to one party”.</p>
<p>The question is whether the same impartiality test applies to chairs of commissions of inquiry as well. </p>
<h2>Weighing Zuma’s claim</h2>
<p>In one way, the impartiality of chairs of commissions might appear even more important. That’s because they are actively involved in the collection of evidence, rather than sitting back passively while two sets of lawyers present the evidence of their choice in the adversarial setting of a court case.</p>
<p>On the other hand, commissions of inquiry do not make binding rulings. All they do is to give advice to the office who created them, and their recommendations have no direct effect on persons implicated in the reports. But if we assume that the same, stringent test applies to the chair of a commission, it is likely that Justice Zondo’s past association with Zuma will not be a ground for recusal.</p>
<p>Most importantly, Zuma’s own view of Justice Zondo’s bias – “firm” or not – will simply not be the deciding factor in determining whether Justice Zondo is biased. What will matter is whether a reasonable, objective and informed person would understand that Justice Zondo has not brought, or will not bring, an impartial mind to bear on the evidence.</p>
<p>Zuma has not provided any evidence to prove, as he is required to do, that Justice Zondo would not bring an impartial mind to the task before him. Indeed, some of the “evidence” mentioned in the letter amounts to a complaint that Zuma is not being given preferential treatment. Thus it treats as bias a generally applicable rule announced by Justice Zondo – that the Commission makes the final decision on hearing dates, not the witnesses – and the fact that Justice Zondo did not accept that Zuma was ill on one of the occasions that he did not appear before the Commission.</p>
<figure class="align-center ">
<img alt="Deputy Chiec Justice Zondo wearing a black suit, blue tie and specs enters the the State capture commisssion venue" src="https://images.theconversation.com/files/361828/original/file-20201006-20-1npnwwx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/361828/original/file-20201006-20-1npnwwx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=433&fit=crop&dpr=1 600w, https://images.theconversation.com/files/361828/original/file-20201006-20-1npnwwx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=433&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/361828/original/file-20201006-20-1npnwwx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=433&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/361828/original/file-20201006-20-1npnwwx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=544&fit=crop&dpr=1 754w, https://images.theconversation.com/files/361828/original/file-20201006-20-1npnwwx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=544&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/361828/original/file-20201006-20-1npnwwx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=544&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Deputy Chief justice Ray Zondo.</span>
<span class="attribution"><span class="source">EFE-EPA/Kim Ludbrook</span></span>
</figcaption>
</figure>
<p>In January, Zuma tried to postpone appearing before the <a href="https://www.sastatecapture.org.za/">Commission</a>, <a href="https://www.statecapture.org.za/site/files/documents/210/SEQ_01.2020_-_02._Answering_Affidavit_-_JGZ.pdf">citing ill health</a>. His affidavit included this revealing <a href="https://www.statecapture.org.za/site/files/documents/210/SEQ_01.2020_-_02._Answering_Affidavit_-_JGZ.pdf,%20para%2032">statement (paragraph 35)</a>, </p>
<blockquote>
<p>I urge the Commission to accept that my views on State Capture answer the various opinions expressed by different individuals who have given their views to the Commission. The Commission and its witnesses are entitled to their views about me, but I am equally entitled to reject them.</p>
</blockquote>
<p>The letter by Zuma’s lawyers demanding Justice Zondo’s recusal does not even bother to state that Zuma provided sufficient evidence of his illness when he wanted to postpone his hearing in January. He sees it as proof of bias (which he is stating now) that Justice Zondo did not accept his evidence then. </p>
<p>It is up to the Chair to evaluate the evidence brought to the Commission, including evidence that a witness is unable to attend. It is thus not in itself a sign of bias if the Chair finds the evidence insufficient. Again, Zuma seems offended that his own “reality” has not been validated by the person whose job it is to consider all evidence impartially, on its own merits.</p>
<h2>Cynical move</h2>
<p>Facts matter. It’s the job of courts and commissions of inquiry to work out what they are. The statements by other witnesses implicating Zuma in orchestrating grand corruption are not “views”. They are central factual allegations that Zuma must address so that the Commission can determine the extent of corruption and its agents. “Compelling” Zuma to do so through a summons (one of Zuma’s complaints in January) is not a sign of bias or bullying. </p>
<p>It is a sign of a commission doing its job on terms approved by the Constitutional Court. By casting doubt on the impartiality of the Chair, Zuma is probably just buying time. But he is also discrediting a vital institution for ending corruption in South Africa, and undermining the process which South Africa needs for a clean start.</p><img src="https://counter.theconversation.com/content/147466/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cathleen Powell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Claiming a right to determine reality by mere say-so is becoming increasingly commonplace, but we should never get used to it.
Cathleen Powell, Associate Professor in Public Law, University of Cape Town
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/132305
2020-02-28T13:11:06Z
2020-02-28T13:11:06Z
Why federal judges with life tenure don’t need to fear political attacks from Trump or anyone else
<figure><img src="https://images.theconversation.com/files/317624/original/file-20200227-24676-wp0pn8.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Donald Trump, left, and federal Judge Ketanji Brown Jackson, right.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Impeachment/623288fafae54215aa57946336472f14/30/0 and https://commons.wikimedia.org/wiki/File:Ketanji_Brown_Jackson_(robe_photo).jpg">Trump, AP/Steve Helber and Jackson, Wikipedia</a></span></figcaption></figure><p><em>Editor’s note: President Donald Trump has mounted <a href="https://www.nytimes.com/2020/02/15/us/politics/trump-barr-justice-department.html">attacks on the Justice Department</a> and its various branches, <a href="https://www.nytimes.com/2020/02/14/us/politics/trump-william-barr.html">on prosecutions he’s interested in</a> and <a href="https://thehill.com/homenews/administration/482694-trump-swipes-at-resigned-prosecutors-judge-in-roger-stone-case">the judges</a> presiding over those cases. He’s complained that his political adversaries – Hillary Clinton and James Comey – <a href="https://www.nytimes.com/2018/11/20/us/politics/president-trump-justice-department.html">should have been prosecuted</a> and that his friends and associates, like <a href="https://www.politico.com/news/2020/02/12/trump-roger-stone-justice-department-114684">Roger Stone</a> and <a href="https://www.reuters.com/article/us-usa-trump-russia-manafort/trump-defends-ex-aide-manafort-as-jury-weighs-verdict-idUSKBN1L20Z6">Paul Manafort</a>, shouldn’t have been.</em></p>
<p><em>The president’s complaints extended to a recent harangue against a juror in the Stone case, prompting a courtroom rebuke by federal Judge <a href="https://www.politico.com/news/2020/02/25/judge-rebukes-trump-roger-stone-jury-117442">Amy Berman Jackson</a> who said, “Any attempt to invade the privacy of the jurors or to harass or intimidate them is completely antithetical to our entire system of justice.”</em></p>
<p><em>If the attacks are meant to intimidate, there’s one class of employees in the U.S. justice system who are immune to them: federal judges, who have lifetime tenure. We asked political science professor <a href="http://scholar.google.com/citations?user=Qr1q2hUAAAAJ&hl=en">Amy Steigerwalt</a> to explain the history and logic behind the lifetime appointment of federal judges.</em></p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/sV2j129LAPE?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">“I thought the whole prosecution was ridiculous,” said Trump of Stone’s prosecution. “I thought it was an insult to our country.”</span></figcaption>
</figure>
<h2>1. What is life tenure for federal judges?</h2>
<p>The vast majority of United States federal judges are nominated by the president and confirmed by the Senate, as I describe in my book, “<a href="https://www.upress.virginia.edu/title/4205">Battle Over the Bench: Senators, Interest Groups and Lower Court Confirmations</a>.”</p>
<p>These judges, known as “Article III” judges for the part of the Constitution that establishes their role, “<a href="https://www.law.cornell.edu/constitution/articleiii">hold their offices during good behaviour,</a>” which in modern parlance means they serve for life. (The exceptions are federal <a href="https://www.uscourts.gov/judges-judgeships/about-federal-judges">bankruptcy and magistrate</a> judges who serve for set terms and handle a limited set of issues).</p>
<p>The result is most federal judges serve until they <a href="https://doi.org/10.1111/j.1540-6237.2009.00665.x">voluntarily retire</a>, <a href="https://www.researchgate.net/publication/228137572_Judicial_Tenure_on_the_US_Supreme_Court_1790-1868_Frustration_Resignation_and_Expiration_on_the_Bench">die</a> or, in extremely rare cases, are involuntarily removed through impeachment.</p>
<h2>2. Why do federal judges have life tenure?</h2>
<p>In England, the king appointed judges and could remove them at will, so judges had strong incentives to issue rulings that pleased the king to keep their jobs. </p>
<p>The Framers of the Constitution instead wanted an independent judiciary able to act as a buffer against an oppressive legislature or executive. As Alexander Hamilton argued in <a href="https://avalon.law.yale.edu/18th_century/fed78.asp">Federalist 78</a>, the Framers granted federal judges life tenure to protect them from undue political influence: “In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.”</p>
<p>Life tenure is intended to allow judges to issue rulings that go against the majority or ruling elite without fear of retribution. And these protections are necessary: Federal judges routinely rule on the most important and controversial issues of the day and consider whether state and federal laws are constitutional, raising claims of <a href="https://yalebooks.yale.edu/book/9780300032994/least-dangerous-branch">“countermajoritarian”</a> behavior by scholars and politicians alike. </p>
<p>Public criticism of judicial decisions is also nothing new: Newly inaugurated President Thomas Jefferson vehemently derided the 1803 case <a href="https://www.oyez.org/cases/1789-1850/5us137">Marbury v. Madison</a>, perhaps the most consequential Supreme Court decision, which ultimately established the power of judicial review, or the ability of courts to strike down laws as unconstitutional. Jefferson even tried to block the court from ruling on the case by canceling the court’s June <a href="https://www.fjc.gov/history/legislation/landmark-legislation-judiciary-act-1802">1802 term</a>. </p>
<p>President Barack Obama <a href="https://www.nytimes.com/2010/01/29/us/politics/29scotus.html">famously criticized the justices of the Supreme Court</a> for their ruling in <a href="https://www.supremecourt.gov/opinions/09pdf/08-205.pdf">Citizens United v. FEC</a> while they sat silently at the <a href="https://obamawhitehouse.archives.gov/the-press-office/remarks-president-state-union-address">2010 State of the Union</a>. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/k92SerxLWtc?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">At his Jan 27, 2010 State of the Union address, Obama criticized a Supreme Court decision that had been issued recently.</span></figcaption>
</figure>
<p>Present Trump has more recently criticized various federal judges for their rulings in cases addressing the <a href="https://www.washingtonpost.com/news/politics/wp/2018/02/05/the-judge-trump-disparaged-as-mexican-will-preside-over-an-important-border-wall-case/">travel bans</a>, during the trials of <a href="https://www.washingtonpost.com/local/legal-issues/trump-takes-on-judge-amy-berman-jackson-ahead-of-roger-stones-sentencing/2020/02/12/753e2a6e-4db6-11ea-bf44-f5043eb3918a_story.html">people associated</a> with his administration and 2016 presidential campaign, and just recently suggested Justices Sonia Sotomayor and Ruth Bader Ginsburg should recuse themselves from any cases dealing with the <a href="https://www.nytimes.com/2020/02/25/us/politics/trump-sotomayor-ginsburg-supreme-court.html">Trump administration</a>. </p>
<p>Concerns have been raised about Trump’s comments criticizing federal judges, including by <a href="https://www.politico.com/story/2018/11/21/supreme-court-chief-justice-john-roberts-calls-out-trump-for-his-attack-on-a-judge-1011203">Chief Justice</a> John Roberts, who said there are no “Obama judges or Trump judges.”</p>
<p>Life tenure, however, means that the targets of these attacks need not fear losing their seats on the bench.</p>
<h2>3. What are the pros and cons of this system?</h2>
<p>Life tenure allows judges to make hard and potentially unpopular decisions without fear of retribution. In all of the examples mentioned above, the judges faced nothing more than public criticism. </p>
<p>Judges without life tenure, alternatively, face the possibility of losing their jobs. Many states have chosen to implement some type of electoral system to increase accountability for judges sitting on state courts. Elected state judges must therefore make their constituents happy to ensure reelection. </p>
<p><a href="https://doi.org/10.1017/S0003055413000622">Studies have found,</a> for example, that elected state judges are more likely to rule harshly in criminal cases as elections approach to stave off criticisms of being “soft on crime.” Other studies find elected state judges change their sentencing behavior to match <a href="http://mjnelson.org/papers/2014JLC.pdf">constituent preferences</a>, and that elections may lead to <a href="https://www.jstor.org/stable/24710965">increased disagreement</a> on the courts. </p>
<p>Life tenure shields federal judges, however, from being accountable for their actions. Impeachment is the only remedy, even for blatantly discriminatory or even illegal behavior. But, systems that increase judicial accountability raise concerns about what forces may be influencing a judge’s decisions, whether that is <a href="https://doi.org/10.1177/1532673X17692325">public</a> pressures, <a href="https://journals.sagepub.com/doi/abs/10.1177/1532440017697174">campaign donors</a> or <a href="https://www.jstor.org/stable/26158391">political</a> <a href="https://doi.org/10.1177/1532673x15599839">elites</a>. </p>
<p>Another potential issue with life tenure is age. <a href="https://qz.com/1632163/human-life-expectancy-keeps-increasing-but-how-far-can-it-go/">Life expectancy has increased exponentially</a> and there is no mechanism other than impeachment to remove someone involuntarily who is showing signs of impaired judgment or decline in mental cognition. </p>
<h2>4. Is this system likely to change?</h2>
<p>Probably not. While <a href="https://heinonline.org/HOL/Page?handle=hein.journals/vanlr70&div=50&g_sent=1&casa_token=&collection=journals">states have experimented</a> with a large variety of judicial selection and retention systems, efforts to reform the federal life tenure system remain largely in the arena of academic law school debates. </p>
<p>The proposed reforms generally modify life tenure around the edges, rather than doing away with it altogether. One of the most widely supported proposals concerns a <a href="https://slate.com/news-and-politics/2017/07/should-there-be-age-limits-for-federal-judges.html">mandatory retirement age</a>. Others propose <a href="https://cap-press.com/books/isbn/9781594602139/Reforming-the-Court">term lengths</a>. </p>
<p>The foremost barrier is that changing the system requires an amendment to the Constitution, which requires a constitutional amendment be proposed by a two-thirds vote of each chamber of Congress and then ratified by three-quarters of the states. In this highly polarized time, that’s unlikely to happen.</p>
<p>What is more possible are legislative attempts to make retirement more attractive to sitting judges, such as the current <a href="https://www.jstor.org/stable/10.1086/668507">“Rule of 80”</a>, established in <a href="https://www.law.cornell.edu/uscode/text/28/371">1984</a>, which encourages retirement or partial retirement while still allowing judges to draw their full pay. </p>
<p>But, overall, independence is a defining virtue of the American federal judiciary, one that has been <a href="https://doi.org/10.1177/1065912916656277">mirrored by countries</a> around the world. </p>
<p>[<em>Insight, in your inbox each day.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=insight">You can get it with The Conversation’s email newsletter</a>.]</p><img src="https://counter.theconversation.com/content/132305/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Steigerwalt does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
If President Trump’s attacks on the justice system are meant to intimidate, there’s one class of employees who are immune to that: federal judges who have lifetime tenure.
Amy Steigerwalt, Professor of Political Science, Georgia State University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/131494
2020-02-10T12:59:46Z
2020-02-10T12:59:46Z
Will bold landmark election ruling improve Malawian democracy?
<figure><img src="https://images.theconversation.com/files/314455/original/file-20200210-109951-1rr31jh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Peter Mutharika during his inauguration as the President of Malawi last May. A court has annnulled his election. </span> <span class="attribution"><span class="source">Amos Gumulira/AFP via Getty Images</span></span></figcaption></figure><p>The Constitutional Court in Lilongwe, Malawi, recently delivered its anxiously anticipated <a href="https://www.washingtonpost.com/politics/2020/02/04/malawi-court-just-ordered-do-over-presidential-election-heres-what-you-need-know/?utm_medium=social&utm_campaign=wp_monkeycage&utm_source=twitter">ruling</a> in the much covered presidential election case. The atmosphere was tense. Many businesses had locked down, fearing rioting if the court ruled in favour of the incumbent government of President Peter Mutharika. </p>
<p>In a 10-hour long press conference, the judges read a summary of the 500-page ruling. As the reading progressed, it became increasingly clear that the outcome was unlikely to turn out in favour of the respondents – President Mutharika and the <a href="http://mec.org.mw/">Malawi Electoral Commission</a>.</p>
<p>The ruling established that the voting process had been marred by serious irregularities. The electoral commission had also failed to address complaints before announcing results. Tally sheets lacked monitor signatures, and several accepted tally sheets had been corrected using Tipp-Ex. </p>
<p>The court annulled the election and called for fresh elections within 150 days. Equally important, it established that parliament should move to properly enact section 80(2) of the <a href="https://www.constituteproject.org/constitution/Malawi_2017.pdf?lang=en">constitution</a>, effectively changing the Malawian electoral system. </p>
<p>That means a president will need a 50+1 majority of votes. Simply winning more votes than your competitors will no longer be enough. Throughout Malawi’s last parliamentary term, the governing Democratic Progressive Party actively tried to frustrate any attempts at such fundamental electoral reform.</p>
<p>The court’s decision was undoubtedly bold. Throughout Africa, courts have largely shown a conspicuous reluctance to rule against powerful <a href="https://www.ingentaconnect.com/content/cuny/cp/2011/00000043/00000002/art00003">incumbents</a>. Governments have frequently meddled with the independence of the judiciary. This is done using strategic appointments and dismissals, threats, and bribes. On this occasion, Malawi was no exception. Days before the court ruling, a well-known banker was arrested for allegedly attempting to <a href="https://www.aljazeera.com/ajimpact/top-malawi-banker-arrested-election-bribery-case-200123104336920.html">bribe</a> the judges. </p>
<p>The court’s impressive show of independence stands in great contrast to neighbouring Zambia. There the Constitutional Court came in for intense criticism for its handling of a presidential petition after the country’s contentious <a href="https://journals.sagepub.com/doi/pdf/10.1177/000203971605100306">2016</a> election. </p>
<p>Zambia’s Constitutional Court dismissed the petition on a technicality and the opposition was refused the opportunity to have its petition heard. Esteemed law <a href="https://www.lusakatimes.com/2016/09/11/professor-muna-ndulo-launches-scathing-attack-three-constitutional-court-judges/">Professor Muna Ndulo</a> concluded that the judgement </p>
<blockquote>
<p>had completely undermined the integrity of the Court and exposed some of the judges as either incompetent or partial or both.</p>
</blockquote>
<h2>Precedent</h2>
<p>Perhaps most importantly, the Malawian court ruling was hugely aspirational. The country has not seen any real democratic growth since the introduction of multiparty democracy <a href="https://muse.jhu.edu/article/192998/summary">in 1994</a>. Looking at widely used global democracy indices, Malawi’s level of democracy has not improved in the last <a href="https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnxtaXdhaG1hbjF8Z3g6N2JjYTQ5NGM0MDIyNTM5Ng">25 years</a>. And, according to <a href="https://mwnation.com/afrobarometer-survey-rates-malawi-democracy/">Afrobarometer</a>, the independent African research network, most Malawians are not satisfied with the way their democracy works. </p>
<p>The problems encountered in 2019 were not unique to this particular election. Many people will remember the veritable chaos that characterised the elections of <a href="https://journals.sagepub.com/doi/abs/10.1177/000203971505000106">2014</a>. </p>
<p>Perhaps even more than in 2019, the 2014 elections were marred by administrative errors, logistical collapse, and even fatal violence. No election is free from irregularities. But with this ruling the Malawian Constitutional Court has joined in with the public to demand more from the country’s democracy.</p>
<p>The ruling places the country within a small group of African states where courts have taken the drastic step to annul a popular election. It has only happened twice previously – in Cote d’Ivoire in <a href="https://www.bbc.com/news/world-africa-11913832">2010</a> and Kenya in <a href="https://www.tandfonline.com/doi/pdf/10.1080/17531055.2019.1594072?casa_token=12umus5HdbsAAAAA:JLWOKS2unWmKwSGn3Ix30mnL2Q5aZf9I_OIVi1w5NWANfC6nwc3me7nzv_kSi0X-9kplaGNnx3Lw">2017</a>. </p>
<p>One particularly interesting aspect of the Malawian court’s ruling was frequent references to the famous Kenyan ruling. With progressive rulings in countries such as Kenya and Malawi, Africa is developing more legal precedence on how to deal with immensely complicated election disputes.</p>
<p>Democrats around the continent may also find inspiration from the broad civil society coalition that has maintained pressure on political institutions throughout the process. Since the controversial election, frequent, large, and mostly peaceful <a href="https://www.cambridge.org/core/books/political-protest-in-contemporary-africa/BF397537A3CF5CA13037CFF4A8DFB1E2">demonstrations</a> have been held across Malawi. Protesters have demanded electoral justice and the resignation of the head of the Malawi Electoral Commission.</p>
<h2>Will others step up to the challange?</h2>
<p>The long-term democratic consequences of the ruling remain uncertain. Research on the consequences of court interference in elections has suggested that judicial assertiveness <em>vis á vis</em> the executive may lead to increased trust in the <a href="https://cpb-us-e1.wpmucdn.com/sites.dartmouth.edu/dist/9/452/files/2019/09/Kenya-supreme-court-2019.pdf">judiciary</a>, but may equally erode the trust in the freedom and fairness of <a href="https://www.researchgate.net/publication/334625537_Electoral_Rulings_and_Public_Trust_in_African_Courts_and_Elections">elections</a>.</p>
<p>When elections are affected by serious irregularities, losers need access to credible avenues for challenging results in court. The alternative, whereby losers challenge elections in the streets, is certainly a serious concern. </p>
<p>But, as the nullification of the 2017 election in <a href="https://muse.jhu.edu/article/690083/pdf?casa_token=fJY4tybcS9AAAAAA:ND-daLLt8SDhzAWtIgTksdU0AtalDgzmImYUUOtLaRykd3t7eyy4N6D10iejhw1UZBRZYthBLw">Kenya</a> showed with abundant clarity, the initial court ruling is only the first step in a longer process. In Kenya, the rerun turned out to be as faulty as the original election. And, the opposition opted to boycott the election all <a href="https://www.tandfonline.com/doi/pdf/10.1080/17531055.2019.1594072?casa_token=12umus5HdbsAAAAA:JLWOKS2unWmKwSGn3Ix30mnL2Q5aZf9I_OIVi1w5NWANfC6nwc3me7nzv_kSi0X-9kplaGNnx3Lw">together</a>.</p>
<p>For Malawi, the question now is whether other political institutions and actors can step up to the challenge. What will happen with President Mutharika’s appeal? How will parliament, still dominated by the ruling <a href="https://www.nyasatimes.com/no-hung-parliament-as-32-independent-mps-flock-to-governing-dpp/">Democratic Progressive Party</a>, react to the Court’s appeal for electoral reform? </p>
<p>Will the opposition manage to mobilise the <a href="https://www.wfd.org/2019/11/26/the-cost-of-politics-in-malawi/">resources</a> needed for the rerun, and will they set aside their differences to form a unified coalition? Most importantly, will the same electoral commission, so heavily criticised in the court’s ruling, improve its capacity and arrange more credible elections? </p>
<p>This question is particularly crucial given a short period for preparations and the possibility of major volatility in <a href="https://mwnation.com/fresh-calls-for-ansah-to-resign/">leadership</a>. Observers of Malawi politics will keenly ponder these and other questions as they continue to follow the development with great interest. The way events unfold in the coming months will be hugely consequential for the trajectory of Malawian democracy.</p><img src="https://counter.theconversation.com/content/131494/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Wahman does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Will the same electoral commission, so heavily criticised in the court’s ruling, improve its capacity and arrange more credible elections?
Michael Wahman, Assistant Professor, Comparative Politics, Michigan State University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/109357
2019-02-08T11:32:05Z
2019-02-08T11:32:05Z
López Obrador clashes with courts after vowing ‘poverty’ for Mexican government
<figure><img src="https://images.theconversation.com/files/257819/original/file-20190207-174880-ydnlpm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">López Obrader wants to cut salaries for all government workers in Mexico, including himself.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Mexico-Fuel-Theft/af44b632456944778936c2f4902a0db6/60/0">AP Photo/Rebecca Blackwell</a></span></figcaption></figure><p>It’s rare for presidents to advocate for poverty, but that’s just what <a href="https://theconversation.com/andres-manuel-lopez-obrador-was-elected-to-transform-mexico-can-he-do-it-99176">Mexican President Andrés Manuel López Obrador</a> is doing.</p>
<p>At a press conference on Feb. 1, López Obrador said his government would embrace what he called “<a href="https://lopezobrador.org.mx/2019/02/01/version-estenografica-de-la-conferencia-de-prensa-matutina-del-presidente-andres-manuel-lopez-obrador-36/">Franciscan poverty</a>” if it would “transfer funds to the people” and achieve “development, jobs and welfare.” </p>
<p>Francis of Assisi was a Catholic saint who <a href="https://www.friarsofstfrancis.org/the-spirit-of-poverty-of-st-francis-of-assisi/">disdained material wealth</a> to follow Christ as a poor man.</p>
<p>López Obrador’s poverty vow is more bureaucratic than religious. As part of an ambitious effort to fight poverty and reduce government corruption, the president proposed to cut the salaries of public officials, including his own, <a href="https://www.animalpolitico.com/2018/07/amlo-austeridad-corrupcion-puntos/">slash federal budgets</a> and <a href="https://expansion.mx/finanzas-personales/2018/08/01/eres-empleado-de-confianza-asi-te-afectaran-las-decisiones-de-amlo">lay off 70 percent of non-unionized federal workers</a>. An estimated <a href="https://twitter.com/Viri_Rios/status/1018880589850701824">276,290</a> public employees will lose their jobs.</p>
<p>After lawsuits were filed by <a href="https://www.excelsior.com.mx/nacional/la-corte-congela-el-tope-a-salarios-pese-a-resistencia-habra-austeridad-delgado/1283451">opposition political parties</a> and Mexico’s <a href="http://www.cndh.org.mx/sites/all/doc/Acciones/Acc_Inc_2018_105.pdf">National Human Rights Commission</a>, the Supreme Court in December <a href="https://www.scjn.gob.mx/sites/default/files/acuerdos_controversias_constit/documento/2018-12-07/ACU%207-12-18%20ISDAI%20105-18.pdf">granted a temporary suspension</a> of López Obrador’s new <a href="http://www.diputados.gob.mx/LeyesBiblio/pdf/LFRemSP_051118.pdf">Federal Law of Public Servant Salaries</a>. </p>
<p>Saying that even austerity budgets must guarantee the basic functioning of the government, Justice Alberto Pérez Dayán said López Obrador’s plan cannot go into effect until the Supreme Court rules on its constitutionality. </p>
<p>The decision has set up a standoff between the president and the courts, with Mexico’s federal budget and <a href="https://www.proceso.com.mx/570407/el-pueblo-se-cansa-de-tanta-pinche-transa-dice-amlo-confirma-intervencion-ante-scjn-video">judicial independence</a> hanging in the balance.</p>
<h2>Reducing inequality, one tree at a time</h2>
<p>López Obrador and his leftist Morena Party won a <a href="https://centralelectoral.ine.mx/2018/07/08/confirma-ine-resultados-de-eleccion-presidencial-2018/">landslide victory</a> in Mexico’s 2018 general election on promises that they would transform Mexico, empowering the underprivileged in a country with gaping inequality.</p>
<p>Since taking office on Dec. 1, López Obrador has suggested creating some 20,000 jobs in fruit production and wood harvesting by <a href="https://www.excelsior.com.mx/nacional/lopez-obrador-vuelve-a-sus-origenes-presenta-en-tabasco-sembrando-vida/1293984">planting trees</a> on a million acres of land in rural southern Mexico. He has also proposed paying <a href="https://www.excelsior.com.mx/nacional/busca-lopez-obrador-llegar-a-85-millones-de-apoyos-a-adultos-mayores/1289997">small monthly pensions of up to 2,550 pesos</a> – around US$134 – to Mexicans above the age of 68 and to people with <a href="https://lopezobrador.org.mx/2018/12/20/destinara-gobierno-presupuesto-historico-para-personas-con-discapacidad-en-2019-presidente-de-mexico/">disabilities</a> who lack social security benefits.</p>
<p>Leftist governments usually fund social programs like this by raising taxes on the wealthy. López Obrador says he <a href="https://expansion.mx/economia/2018/11/26/estas-son-las-12-promesas-economicas-de-amlo">won’t do that</a>. Instead, his administration hopes to recover public funds by cracking down on <a href="https://books.google.com.mx/books?redir_esc=y&id=0-zmDQAAQBAJ&q=corrupcion#v=onepage&q=corrupci%C3%B3n&f=false">rampant corruption</a> and saving money with <a href="https://elpais.com/internacional/2018/07/16/actualidad/1531708329_222187.html">fiscal austerity</a>. That’s where the salary cuts and mass layoffs come into play.</p>
<p>López Obrador is an <a href="https://lopezobrador.org.mx/2017/11/04/asamblea-informativa-en-susticacan-zacatecas/">admirer of Benito Juárez</a>, the indigenous president who ruled Mexico from 1858 to 1872. Juárez extolled the virtues of selfless public service, <a href="http://www.biblioteca.tv/artman2/publish/1852_153/Discurso_pronunciado_por_Benito_Ju_rez_gobernador_del_estado_de_Oaxaca_ante_la_X_Legislatura_al_abrir_el_primer_periodo_de_sus_sesiones_ordinarias.shtml">saying</a> public servants should “devote themselves to work assiduously while resigning to live in … honorable modesty.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Los Pinos presidential palace in Mexico City is now open to the public.</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/e/ea/Los_Pinos%2C_Mexico_2018.jpg">Drkgk/Wikimedia</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>López Obrador flies commercial and has refused to take up residence in the Los Pinos presidential palace, turning it into a cultural center. </p>
<p>He also set his salary at a “<a href="https://www.bloomberg.com/news/articles/2018-12-11/amlo-eyes-salary-of-mexico-supreme-court-head-in-austerity-push">moderate</a>” 108,000 pesos, about <a href="http://www.eluniversal.com.mx/english/amlo-slash-60-his-salary">$5,700 a month</a> – roughly $68,400 a year. That’s 60 percent less than his predecessor, Enrique Peña Nieto, who earned <a href="https://adnpolitico.com/presidencia/2018/07/15/lopez-obrador-fija-en-108-000-el-tope-de-sueldos-para-funcionarios-en-mexico">the equivalent of $14,200 a month</a> in 2018.</p>
<p>The wage gap between average workers and the Mexican head of state was the highest in the world last year, according to a <a href="https://www.ig.com/uk/forex/research/pay-check#/salary">report by the IG Group</a>, a British financial services company. On average, Mexican workers earn around $15,311 a year. </p>
<p>López Obrador’s voluntary pay cut has drastically reduced the difference between his income and <a href="https://www.efe.com/efe/english/life/mexican-households-have-an-average-of-3-8-members-843-in-monthly-income/50000263-2666718">everyone else’s</a>.</p>
<h2>Attacks on the judiciary</h2>
<p>Since <a href="http://www.diputados.gob.mx/LeyesBiblio/pdf/1_270818.pdf">the Mexican Constitution</a> mandates that no public official should make more than the president, however, López Obrador has also effectively capped wages for all government employees. </p>
<p>To his mind, that’s a good thing.</p>
<p>The days of having “a rich government with a poor population” are over, the president <a href="https://aristeguinoticias.com/0812/mexico/quienes-deberian-impartir-justicia-estan-dando-un-mal-ejemplo-amlo/">told a crowd</a> in December. He was speaking in the western state of Nayarit, pledging aid for victims of a recent hurricane. </p>
<p>In the same speech, López Obrador attacked the Supreme Court’s decision to suspend his pay cut plan, accusing Mexican judges – not just Justice Pérez Dayán – of selfishly wanting to keep their salaries and benefits intact. </p>
<p>In fact, <a href="http://www.diputados.gob.mx/LeyesBiblio/pdf/1_270818.pdf">Article 94 of the Mexican Constitution</a> explicitly prohibits reducing the salary of judges at any time during their appointment, a guarantee of judicial independence that <a href="http://www.ordenjuridico.gob.mx/Constitucion/1857.pdf">dates back to 1857</a>.</p>
<p>In 2018, Supreme Court justices earned <a href="https://www.eluniversal.com.mx/nacion/ministros-aceptan-reducir-25-sus-salarios">269,215 pesos</a> – around $14,000 a month. </p>
<p>The Supreme Court has since <a href="https://www.eluniversal.com.mx/nacion/ministros-aceptan-reducir-25-sus-salarios">agreed</a> to take a 25 percent pay cut “in accordance with the new policy of austerity that the presidency has demanded of the Supreme Court of Justice.” That puts their 2019 salaries at about $10,500 a month, not including benefits. </p>
<p>In adopting this measure, the Supreme Court also clarified that, as an independent branch of government directly protected by the Constitution, the judiciary is not bound by the salary standards established by López Obrador. The justices will decide how to implement austerity within the court system. </p>
<h2>Judicial battles ahead</h2>
<p>The Supreme Court is expected to make a definitive ruling on the <a href="https://eljuegodelacorte.nexos.com.mx/?p=9321">two lawsuits challenging the constitutionality</a> of the Federal Law of Public Servant Salaries some time this year. </p>
<p>Over <a href="https://www.eluniversal.com.mx/nacion/mas-de-20-mil-piden-amparo-contra-la-ley-de-salarios">20,000 public servants have also filed individual complaints</a> in federal courts, saying salary cuts violate their labor rights. Under Mexican law, <a href="http://sjf.scjn.gob.mx/sjfsist/Documentos/Tesis/257/257483.pdf">legislation is deemed retrospective</a> – and thus unconstitutional – if it affects the vested rights of individuals. Employers, including the federal government, cannot unilaterally reduce their employees’ wages.</p>
<p>At least <a href="https://elfinanciero.com.mx/nacional/en-38-dias-12-mil-817-trabajadores-despedidos-o-en-vias-de-serlo">12,817 Mexican public servants</a> have already been laid off under López Obrador’s austerity plan. Many of those who have kept their jobs have seen their <a href="https://www.eluniversal.com.mx/cartera/cero-prestaciones-burocratas-eventuales-y-por-honorarios">social security benefits and vacation time</a> eliminated under the new law.</p>
<p>Beyond its questionable constitutionality, López Obrador’s de facto salary cap on public servants does not take into account the expertise, seniority or skills required of high-level positions. Less than $5,700 a month is simply insufficient payment for the most highly skilled workers, Mexican constitutional <a href="http://www.enciclopediagro.org/index.php/indices/indice-de-biografias/102-arteaga-nava-elisur">expert</a> Elisur Arteaga told the newspaper <a href="https://www.razon.com.mx/mexico/juristas-ley-de-salarios-al-vapor-habra-amparos/">La Razon</a> last year. He expects talent will flee the government for the private sector.</p>
<p>Nobody in Mexico thought that transforming the country would be easy when they voted López Obrador into office. To <a href="https://elpais.com/elpais/2018/11/28/opinion/1543428474_358305.html">paraphrase Mexican pundit Jesús Silva-Herzog</a>, fixing Mexico’s bloated and corrupt government was work for a surgeon with a scalpel. </p>
<p>López Obrador, it’s becoming clear, prefers a machete.</p><img src="https://counter.theconversation.com/content/109357/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>In 2002, Luis Gómez Romero contributed to a constitutional amendment aimed at establishing that no public servant can receive remuneration higher than that established of the President of Mexico, which later became law.</span></em></p>
Mexico’s new president has reduced his own salary and demanded that all federal workers
– including lawmakers and judges – take a massive pay cut, too. That may be illegal.
Luis Gómez Romero, Senior Lecturer in Human Rights, Constitutional Law and Legal Theory, University of Wollongong
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/101697
2018-08-16T13:51:41Z
2018-08-16T13:51:41Z
Court fixes some of the flaws in South Africa’s prosecuting authority
<figure><img src="https://images.theconversation.com/files/232313/original/file-20180816-2912-2izisd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Jacob Zuma: the Constitutional Court has ruled his appointment of the top prosecutor illegal.</span> <span class="attribution"><span class="source">EPA-EFE/Jackie Clausen</span></span></figcaption></figure><p>South Africa’s Constitutional Court has <a href="http://www.saflii.org/za/cases/ZACC/2018/23.html">ruled</a> that the removal of the previous National Director of Public Prosecutions, Mxolisi Nxasana, by former President Jacob Zuma, was unlawful and invalid. The appointment of his successor, Shaun Abrahams, was therefore also invalid. </p>
<p>The National Prosecuting Authority is the body responsible for prosecuting criminal offences in South Africa. The <a href="https://www.gov.za/documents/constitution/constitution-republic-south-africa-1996-1">Constitution</a> requires it to do so</p>
<blockquote>
<p>without fear, favour or prejudice.</p>
</blockquote>
<p>In its judgment the Court <a href="http://www.saflii.org/za/cases/ZACC/2018/23.html">explained</a> why the National Prosecuting Authority must be independent:</p>
<blockquote>
<p>The NPA plays a pivotal role in the administration of criminal justice. With a malleable, corrupt or dysfunctional prosecuting authority, many criminals – especially those holding positions of influence – will rarely, if ever, answer for their criminal deeds. </p>
</blockquote>
<p>The judges went on to say that, equally, functionaries within that prosecuting authority may be pressured into pursuing prosecutions “to advance a political agenda”. </p>
<p>The Court noted that the prosecuting authority has suffered ongoing instability over the years. Its capacity to fulfil its core functions is increasingly in doubt. This has been illustrated in a number of ways.</p>
<p>The first is that the authority has been abused by powerful office holders – by the president in this particular case. In addition, it has failed to act in cases where strong evidence has been in the public domain. The prime example relates to the <a href="http://www.gupta-leaks.com/">Gupta leaks</a>. Also, the prosecuting authority has pursued baseless cases against <a href="https://theconversation.com/charges-against-finance-minister-show-misuse-of-south-african-law-67177">opponents of people in power</a> and is losing its effectiveness in <a href="https://www.uwc.ac.za/News/Pages/The-NPA-What-does-the-future-hold.aspx">prosecuting non-political cases</a>.</p>
<p>The question now is: how much of this did Monday’s Constitutional Court judgment fix? It has removed some of the design flaws which allowed the authority to be abused and compromised. But it has merely opened the door towards other changes which may be necessary to ensure a functional, reliable and competent prosecutions body – changes which require the input of Parliament and broader society.</p>
<h2>Independence and competence</h2>
<p>An effective, accountable National Prosecuting Authority needs at least two things: structural independence and competent personnel with expertise and integrity.</p>
<p>Structural independence refers to the design of the institution, in particular whether the legislation that governs it is designed in a way that prevents those in power from forcing it to act in their own interests instead of in the interests of justice. </p>
<p>Two rulings from the Court’s recent judgment will improve the structural independence of the National Prosecuting Authority. First, it held that the clause allowing the President to extend the term of a National Director of Public Prosecutions was unconstitutional. </p>
<p>In addition, the court also declared Section 12(6) of the act invalid to the extent that it allows the President to suspend National Prosecuting Authority officials indefinitely and without pay. Instead, the Court limited the period of suspension to six months, and ordered that the suspended officials be paid during that period.</p>
<h2>Weaknesses remain</h2>
<p>But the judgment didn’t address other weaknesses. In particular, it left untouched the process of appointing its head. Under the National Prosecutions Act, the choice of the National Director of Public Prosecutions remains within the sole discretion of the President. The National Prosecutions Act does set out certain prerequisites, such as legal qualifications. The national head of prosecutions is also required to be a “fit and proper” person. </p>
<p>But the President is not required to consult with anybody on his choice or to justify his decision. </p>
<p>This explains why the removal of Abrahams hasn’t triggered widespread relief. Nobody knows – or has any say in – who will be appointed next.</p>
<p>Civil society has taken up this issue in the wake of a string of disastrous appointments. It’s suggesting that the head of the prosecutions authority should be chosen in an open, consultative manner. </p>
<p>The court provided no guidance on this. Nor did it tell South Africans what qualities the country’s chief prosecutor should have.</p>
<p>It consciously stopped short of commenting on Abrahams’s performance, noting merely that nothing had been brought to the court to suggest that he was not fit and proper to hold the post. </p>
<p>It was, nevertheless, not prepared to retain him in the position because he owed it to an abuse of power by Zuma. As the rule of law required a “cleansing” of the National Prosecuting Authority from all abuses of power, such a benefit could not be allowed to continue.</p>
<p>The only substantive guidance that the judgment offered on the qualities of the national director can be found in its response on what should happen to Nxasana. Although the judges were split on whether he should be allowed to return to his previous position, there was no dispute over the fact that he had allowed himself to be bought out of his office. In so doing he had acted in a way that was unworthy of the position he held.</p>
<h2>A clean page</h2>
<p>The court decision presents a clean page for the National Prosecuting Authority. It allows for the appointment of a new National Director of Public Prosecutions who might clean up the institution and return it to effective functioning. This, however, is far from a certainty.</p>
<p>The court’s judgment protects the independence of the new head of prosecutions and his or her deputies by removing some potential for fear, favour or prejudice. But it provides no guarantees that the new prosecutions boss and the National Prosecuting Authority will be impartial and competent and conduct themselves with integrity. </p>
<p>For that, further civil engagement and structural reform is needed.</p><img src="https://counter.theconversation.com/content/101697/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cathleen Powell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
An effective, accountable National Prosecutions Authority needs at least two things: structural independence and competent personnel with expertise and integrity.
Cathleen Powell, Associate Professor in Public Law, University of Cape Town
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/99486
2018-07-06T16:09:26Z
2018-07-06T16:09:26Z
Poland’s judicial purge another step toward authoritarian democracy
<figure><img src="https://images.theconversation.com/files/226497/original/file-20180706-122274-yxhbs4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Crowds protesting the forced retirement of judges, in front of Poland's Supreme Court building, Warsaw</span> <span class="attribution"><span class="source">AP/Czarek Sokolowski</span></span></figcaption></figure><p>Since the elections of 2015, Poland has been ruled by the Law and Justice Party (Prawo i Sprawiedliwość, or PiS), a far-right nationalist group that has transformed the country beyond recognition. </p>
<p>Poland <a href="https://www.economist.com/special-report/2014/06/26/the-second-jagiellonian-age">had once been lauded</a> as the great post-communist success story, with solid democratic institutions and a booming economy. Now, under PiS rule, Poland is steadily becoming an <a href="https://www.theatlantic.com/international/archive/2018/02/poland-holocaust-law/552842/">authoritarian, xenophobic pariah</a> among democratic nations. </p>
<p><a href="https://www.ft.com/content/ef3b5420-7f60-11e8-bc55-50daf11b720d">This week</a>, the regime passed another milestone on the path toward establishment of a one-party state. </p>
<p>If all goes as PiS leaders have planned, <a href="https://wamu.org/story/18/07/03/polands-government-forcing-supreme-court-justices-to-step-down/">about 40 percent</a> of the country’s judges will be forced out of office. They will be replaced by people loyal to the government and subject to dismissal at any time. PiS couched its takeover in the form of an order lowering judges’ retirement age. Every judge over age 65 will now be dismissed except for those who are approved for continued service by the current regime.</p>
<p>This amounts to a political takeover of the independent Polish judiciary.</p>
<h2>Questionable rationale</h2>
<p>On July 4, Polish Prime Minister Mateusz Morawiecki <a href="https://www.politico.eu/article/polish-pm-mateusz-morawiecki-to-eu-dont-lecture-us/">appeared before the European Union parliament</a> to defend the impending judicial purge. He argued that it was necessary because of the continued presence of judges whose careers date from the communist era. </p>
<p>This justification shouldn’t be taken seriously: <a href="https://oko.press/dekomunizacja-sadu-najwyzszego-propagandowy-wybieg-pis-zeby-przejac-kontrole-nad-sn-paru-sedziow-powinno-sie-nim-znalezc/">Only a few hundred judges</a> out of around 10,000 began their careers on the bench prior to the fall of communism in 1989. Those judges were long ago screened to weed out those who had issued politically motivated rulings. </p>
<p>And while it is true that there have been episodes of <a href="http://wyborcza.pl/1,76842,12285623,Marcin_Plichta__szef_Amber_Gold__ma_szesc_wyrokow.html">corruption</a> in the Polish judiciary, there is no evidence to suggest that such incidents are more common here than anywhere else. In any case, the purge does not entail any attempt to investigate and sanction those guilty of corruption: It is a thorough removal of an entire cohort of judges.</p>
<p>EU officials have challenged PiS from the start, but their power to issue concrete sanctions is limited. Any meaningful steps can be vetoed by a single dissenting vote. Hungary’s equally authoritarian ruler, Viktor Orbán, has promised to <a href="https://www.ft.com/content/b1bd2424-6ed7-11e7-93ff-99f383b09ff9">defend his Polish allies</a>.</p>
<h2>Who are the enemies?</h2>
<p>When dealing with domestic audiences, those flimsy arguments about removing hidden communists are less central to PiS rhetoric. Two other issues are emphasized instead. </p>
<p>First is the claim that even though few communist-era judges remain, a larger percentage of them have <a href="http://www.empik.com/resortowe-togi-marosz-maciej,p1167479245,ksiazka-p?gclid=CjwKCAjwg_fZBRAoEiwAppvp-QkGw2c77C1t3MfCuRe0RsvfLO6GdYqlpj14JqHVWOJn8BqlmmlFDhoCoCsQAvD_BwE&gclsrc=aw.ds">parents who served during the Polish People’s Republic</a>. In other words, PiS supporters argue that the supposed disrepute of one generation should be passed on to the next. </p>
<p>This argument is central to understanding the worldview of PiS. While many Poles opposed communism because it was authoritarian, others were more disturbed by the perception that it was not national, not truly Polish. </p>
<p>This belief is grounded in a long tradition of nationalist thought that I have <a href="https://global.oup.com/academic/product/when-nationalism-began-to-hate-9780195151879?cc=us&lang=en&">written</a> <a href="https://books.google.com/books/about/Poland_in_the_Modern_World.html?id=jEKMAgAAQBAJ&printsec=frontcover&source=kp_read_button#v=onepage&q&f=false">about</a> <a href="https://global.oup.com/academic/product/faith-and-fatherland-9780195399059?cc=us&lang=en&">elsewhere</a>. That tradition, which dates back at least a century, equated Polishness with a narrow concept of a religiously and ethnically homogeneous nation locked in an unending struggle for survival with every other nation. </p>
<p>Among those real and (mostly) imagined national enemies were Germans, Russians and above all Jews. The latter two were commonly lumped together within paranoid conspiracy theories about a <a href="http://www.hup.harvard.edu/catalog.php?isbn=9780674047686">“Judeo-Bolshevik”</a> menace.</p>
<p>The overt expression of this anti-Semitic worldview has faded somewhat from public life, though sadly, <a href="https://dorzeczy.pl/8786/Zydokomuna-czy-chamokomuna.html">it hasn’t disappeared</a>. </p>
<p>More common today is a less explicit conviction among supporters of PiS that an unspecified “they” still control the country behind the scenes, passing their authority down from generation to generation. In PiS rhetoric, these enemy elements are often referred to as <a href="https://wpolityce.pl/media/213615-czy-polskojezyczne-media-media-naprawde-sa-polskie-szokujaca-analiza-rynku-prasowego">“Polish speakers”</a> <a href="https://www.salon24.pl/u/sopoty/784662,polskojezyczne-i-antypolskie-media-probuja-namieszac">rather than genuine Poles</a>.</p>
<p>Within this ideological framework, some individuals with known <a href="https://wiadomosci.wp.pl/akcja-piotrowicze-kto-z-pis-nalezal-do-pzpr-6067060569051777a">links to the old communist state apparatus</a> are welcomed into the new regime, as long as they demonstrate their Roman Catholic bona fides and their devotion to the PiS worldview. The issue is not whether one is specifically implicated in the political oppression of the communist era, but whether one belongs to “them.” </p>
<h2>Authoritarian democracy</h2>
<p>The second dispute at the core of the judicial purge involves the very nature of the Polish state.</p>
<p>First, some history. Communist rule came to an end in 1989 thanks to the so-called “<a href="https://quod.lib.umich.edu/j/jii/4750978.0006.301/--1989-polish-round-table-revisited-making-history?rgn=main;view=fulltext">Round Table accords</a>,” a negotiated settlement with the leaders of the democratic opposition and the <a href="https://www.britannica.com/biography/Lech-Walesa">Solidarity union movement, led by Lech Wałęsa</a>. It would take until 1997 for a new constitution to be prepared, but the basic outlines of a liberal parliamentary system were established in that agreement.</p>
<p>One of the principles enshrined in those <a href="http://okragly-stol.pl/wp-content/uploads/2014/04/01_stanowisko_polityka.pdf">1989 accords</a> was that “the separation of power into legislative, executive, and judicial branches shall constitute the basic principle of democratization at all levels of government.” </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/226499/original/file-20180706-122265-rdopwj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/226499/original/file-20180706-122265-rdopwj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/226499/original/file-20180706-122265-rdopwj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/226499/original/file-20180706-122265-rdopwj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/226499/original/file-20180706-122265-rdopwj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/226499/original/file-20180706-122265-rdopwj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/226499/original/file-20180706-122265-rdopwj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Round Table talks, 1989.</span>
<span class="attribution"><span class="source">AP photo</span></span>
</figcaption>
</figure>
<p>Although this might seem legalistic and abstract, it was essential. The authors of this text were affirming that democracy required more than just an elected government. It was necessary to ensure that power was distributed broadly, so that no one could use a democratic mandate as an excuse to violate basic civil or human rights. </p>
<p>The phrase “checks and balances” might be a cliché, but Poles, as they threw off a dictatorial regime, knew all too well how important this principle was. </p>
<p>PiS rejects the Round Table accords and the entire system built upon them. They <a href="http://porterszucs.pl/2016/02/05/pis-in-their-own-words">claim</a> that the post-1989 system was too weak to root out all the remnants of communism. They say that the separation of powers allowed hostile forces to establish centers of authority that limited the democratic will of the people. </p>
<p>Again and again, PiS politicians repeat their conviction that national sovereignty must be unified, and not fragmented among separate judicial, legislative and executive authorities. Such a distribution of power, <a href="https://wpolityce.pl/polityka/328974-top-10-przykladow-zobacz-jak-kasta-sedziowska-lamie-prawo-i-kala-godnosc-togi">they argue</a>, allows each branch of government to act like a separate “caste,” blocking the national majority. </p>
<p>As one government supporter <a href="https://oko.press/kornel-morawiecki-dobro-narodu-ponad-prawem-sejm-uniewaznia-wybor-sedziow-tk-kronika-skorzynskiego-21-27-listopada-2015-r/">once put it</a>, “the will of the nation stands above the law.” </p>
<p>The founder and leader of the movement, Jarosław Kaczyński, dismisses the idea that legal constraints should limit what “the <a href="http://wiadomosci.dziennik.pl/opinie/artykuly/538883,suweren-temat-roku-tematroku-tematroku2016-glosowanie.html">sovereign</a>” can and cannot do. </p>
<p>The government’s spokespeople are adamant that they believe in democracy. But their understanding of this term appeals to a tradition of <a href="https://freedomhouse.org/report/modern-authoritarianism-illiberal-democracies">authoritarian democracy</a>, where the government represents the singular will of the people, unchallenged by legalistic divisions of power. </p>
<p>This helps explain the repeated claims by PiS supporters that the “Polish people” should be able to determine their own affairs without interference – whether from EU institutions or unelected Polish judges. </p>
<p>The ruling party is supported by <a href="https://www.wnp.pl/parlamentarny/sondaze/">fewer than 40 percent</a> of the population and <a href="https://oko.press/76-proc-polakow-chcialoby-zeby-politycy-zadnego-wplywu-powolywanie-sedziow-pis-chcialo-inaczej/">an overwhelming 76 percent</a> want the judiciary to remain independent from government oversight. Evidently, that fact is irrelevant. </p>
<p>In the PiS worldview, the sovereign must speak with one voice, and that voice belongs to them.</p><img src="https://counter.theconversation.com/content/99486/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brian Porter-Szücs does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
With its attempt to purge the country’s courts of 40 percent of its judges, Poland’s right-wing ruling party passed another milestone on the path towards establishment of a one-party state.
Brian Porter-Szücs, Professor of History, University of Michigan
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/89721
2018-02-02T11:49:04Z
2018-02-02T11:49:04Z
If you’re not sure why what’s happening in Poland matters so much, here’s what you need to know
<p>The Polish government continues to <a href="https://www.theguardian.com/world/2017/dec/20/eu-process-poland-voting-rights">clash</a> with the EU over its attempts to revamp its domestic legal system, most recently bringing in legislation that threatens the independence of the courts. </p>
<p>This is just the latest episode in a wider series of reforms through which the populist right-wing government (the Law and Justice party) has consolidated its powers – including tightening its controls on the civil service, and introducing legislation to <a href="http://www.bbc.co.uk/news/world-europe-35257105">control the media</a>.</p>
<p>The latest piece of legislation, which was signed off by president <a href="http://www.bbc.co.uk/news/world-europe-42420150">Andrzej Duda</a>, is the most controversial yet. It permits the government to play a significant role in shaping the judiciary. Politicians will even be able to choose members of the judiciary council – the body responsible for appointing judges.</p>
<p>At the heart of the disagreement between Poland and the EU is a disagreement about the separation of powers. The separation of powers is a liberal doctrine, which the EU takes very seriously. It was developed initially by political thinkers such as <a href="https://plato.stanford.edu/entries/locke-political/">John Locke</a> and <a href="https://plato.stanford.edu/entries/montesquieu/">Montesquieu </a>.</p>
<p>The doctrine is concerned with how the state’s power should be distributed. It holds that the three arms of the state – the executive, the judiciary and the legislature – should, to a greater or lesser extent, be kept separate. That way, they are able to hold one another to account. </p>
<p>The legislature creates the law, the executive puts the law into force and the judiciary interprets and applies the law in the courts. For Montesquieu, who presents the most detailed formulation of the separation of powers, this compartmentalisation of state power is essential if governments are to be accountable. And this is important, he believed, because only accountable governments protect the liberty of citizens. </p>
<p>This theory about the separation of state power went on to have a formative effect on the development of modern day democracies. And it’s this vision of the tripartite separation of state power that is essential to the <a href="http://europa.eu/rapid/press-release_IP-17-5367_en.htm">EU’s argument against the Polish reforms</a>.</p>
<p>If Montesquieu is right that unaccountable governments curtail liberties, then the reforms in Poland should worry us. By allowing the ruling party to reform – and to thereby shape – the judiciary, the separation of powers is not being respected in Poland. Suddenly, the government has a significant say over who applies and enforces the laws they create. Suddenly, the government has discretion over who holds them to account. Suddenly, it looks as though the government is not very accountable to anyone at all.</p>
<p>And yet, we might also think that Montesquieu – and with him the EU – is wrong on this. </p>
<p>We may, for example, worry about how the doctrine sits in relation to democracy. For what the doctrine asks of us is to set limits on the power of democratically elected governments. The doctrine permits unelected judges to stop elected governments from doing the things that a majority of people have elected them to do. As such, the doctrine recommends curtailing the will of the people. The doctrine, in short, is undemocratic. And, indeed, these complaints form the substance of the response to the EU from Poland, and those (like Hungary) who have rallied <a href="http://www.dw.com/en/hungary-will-block-punitive-eu-action-on-poland/a-41903647">in support</a>.</p>
<p>The separation of powers looks to be at once an important means to secure liberty from arbitrary rule, while being at the same time a doctrine that is fundamentally undemocratic. At the core of the disagreement between Poland and the EU is this deeper ideological disagreement about the nature and composition of liberal democracy.</p>
<h2>Lessons from history</h2>
<p>I want to briefly give two reasons as to why we should take the doctrine of the separation of powers seriously – and why the Polish reforms are thus so troubling.</p>
<p>The first reason is historical precedent. Our historical experience of governments taking (or granting themselves) control of the judiciary (and thereby violating the separation of powers) is not a happy one. </p>
<p>Take Argentina in the late 1970s. The right-wing junta there engaged in <a href="https://www.theguardian.com/world/2008/may/19/argentina-human-rights">“forced disappearances”</a>, against communists and other opponents. It arrested them arbitrarily, detained them en masse without trial and submitted them to torture and killing. To implement this policy without challenge, the junta restaffed the judiciary with members who were sympathetic to its aims, and who were forced to swear an oath of loyalty to the regime. It was through violating the separation of powers that the Argentine government was able to act unaccountably, to cement its rule and to license violent and oppressive policies.</p>
<p>The second reason is that the threat of majoritarianism – something which is inherent to democracy – should worry us. Majoritarianism occurs when a majority-supported government legislates in ways that suppress or otherwise harm a minority. The separation of powers is designed to prevent the iniquities of majority rule. And, along with other core, legally institutionalised, liberal measures such as free speech, judicial review, legal representation and fair trial, it forms the sometimes very thin protective layer between the state and the citizen. Without these measures, an untrammelled government, particularly in our populist political climate, becomes a very real, oppressive threat.</p>
<p>History tells us (as it no doubt told Locke and Montiesqueu) that it’s correct to think that unaccountable governments suppress citizens, and worse. And their doctrine of the separation of power gives us a plausible and effective remedy which we know works to restrict state power and protect liberty. Both the lessons of history, and the very real concern we should have about omnipotent, unrestricted majority legislatures, show us that the doctrine – developed through trial and error in the emerging constitutional democracies of 17th and 18th century Europe and America – is still essential to accountable, liberty-respecting governance.</p>
<p>This is a lesson the Polish government should not take lightly.</p><img src="https://counter.theconversation.com/content/89721/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas Hancocks does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Reforms to the judiciary are a threat to democracy – and that affects us all.
Thomas Hancocks, Teaching Fellow/ Consultant in Applied Ethics, University of Leeds
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/84242
2017-09-22T00:37:12Z
2017-09-22T00:37:12Z
In Trump’s America, is the Supreme Court still seen as legitimate?
<figure><img src="https://images.theconversation.com/files/187027/original/file-20170921-8242-br8aby.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">U.S. Supreme Court Justice Ruth Bader Ginsburg.</span> <span class="attribution"><span class="source">AP Photo/Charles Rex Arbogast</span></span></figcaption></figure><p>On Oct. 10, the U.S. Supreme Court <a href="http://www.scotusblog.com/2017/07/court-releases-october-calendar/">is scheduled to hear arguments</a> about the constitutionality of President Donald Trump’s travel ban. The justices may rule that Trump has exceeded his constitutional authority, or <a href="http://www.pbs.org/newshour/rundown/supreme-court-justices-avoid-issuing-verdict-trumps-travel-ban/">they may dodge the issue entirely</a>, saying that the travel ban’s scheduled Sept. 24 end date takes the decision out of the court’s hands.</p>
<p>Regardless of the Supreme Court’s decision, some Americans will agree and others will not. And whatever the decision, the court will expect the president to comply with its ruling. Political leaders usually follow court decisions they disagree with out of a <a href="http://www.annualreviews.org/doi/abs/10.1146/annurev.psych.57.102904.190038">sense of duty</a>: They believe the Supreme Court’s decisions deserve respect because obedience to the law is an essential feature of democracy. Political scientists call this belief “legitimacy.” </p>
<p><a href="http://www.annualreviews.org/doi/abs/10.1146/annurev-lawsocsci-110413-030546">Research</a> suggests that <a href="http://www.annualreviews.org/doi/abs/10.1146/annurev-lawsocsci-110413-030546">the U.S. Supreme Court’s legitimacy is high</a> and <a href="http://onlinelibrary.wiley.com/doi/10.1111/ajps.12107/abstract">holds steady</a>, even when it makes decisions the public dislikes.</p>
<p>But is this true in the midst of our current political turmoil? </p>
<p>We set out to find the answer. Here’s what we found.</p>
<h2>The Supreme Court’s broad support</h2>
<p>We asked a representative sample of Americans about the U.S. Supreme Court’s legitimacy in a recent <a href="http://democracyinstitute.la.psu.edu/documents/PollReportJusticeReappointmentfinal.pdf">Penn State McCourtney Mood of the Nation Poll</a>. Specifically, we asked citizens about what they would want to do if the Supreme Court began making many unpopular decisions.</p>
<p><iframe id="b5RD4" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/b5RD4/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>Only a few Americans would want to eliminate the Supreme Court altogether. About 20 percent would endorse narrowing the scope of the court by limiting the types of cases it is able to decide. And about 32 percent felt that even if the court made unpopular decisions, we should leave it alone. The margin of error for these results was ± 4.2 percent. </p>
<p>The largest group of respondents – 44 percent – endorsed the idea that justices should be periodically reappointed rather than serving life terms. Reappointment procedures are already <a href="http://judicialselection.us/">used for many state supreme courts</a>, including those in New Jersey, South Carolina and Virginia. Women, African-Americans and Americans over 65 were especially likely to endorse periodic reappointment.</p>
<p>After respondents gave their answers, we asked them to explain their choices in their own words. These responses <a href="http://democracyinstitute.la.psu.edu/documents/PollReportJusticeReappointmentfinal.pdf">provide a richer</a> description of how ordinary citizens think about the judicial branch of our government.</p>
<h2>In their own words</h2>
<p>Citizens expressed concern about the Supreme Court’s accumulation of power and were mindful of its role in the system of checks and balances. Many who supported periodic reappointment focused on the inflexibility of current justices. Many characterized sitting justices as “old-fashioned,” “out of touch” and “unable to keep up with the times.” </p>
<p>Many mentioned the need for “new ideas” and more “open-minded justices.” A 52-year-old independent from Missouri summed it up this way: “No one should serve for life. In anything.”</p>
<p>A sizable number felt that the court’s decisions should fall more closely in line with public opinion on individual cases, illustrating a longstanding debate in the U.S. about the ideal level of political independence for the judicial branch. <a href="http://heinonline.org/HOL/Page?handle=hein.journals/emlj6&div=20&id=&page=&collection=journals">Research</a> on the Supreme Court appointment process suggests that periodic reappointment may satisfy these concerns. If each president is able to appoint a set number of justices, rather than waiting until there is a vacancy due to death or retirement, the court’s membership might better reflect the recent political climate.</p>
<p>Perhaps the most striking pattern in the answers we received is the lack of polarization. There was some modest difference – for example, Democrats were a little more likely to favor reforms of all kinds. However, supporters of reappointment and supporters of that status quo included large numbers of Republicans, Democrats and independents. </p>
<p>We see no evidence that Trump’s <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/02/04/trump-lashes-out-at-federal-judge-who-temporarily-blocked-travel-ban/?utm_term=.ce5038706e09">rhetoric</a> about judiciary legitimacy has created two hostile camps with widely differing views on the court. This is consistent with recent academic <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1740-1461.2007.00098.x/abstract">research</a> on the topic, suggesting the possibility that future public debates about judicial reforms can be multipartisan, reasoned and thoughtful.</p>
<p>Most importantly, the poll’s results show that the Supreme Court is broadly supported by the American people. Even at a point in history where support for <a href="http://news.gallup.com/poll/213944/americans-approval-congress-remains-low-steady.aspx?g_source=position4&g_medium=related&g_campaign=tiles">other</a> <a href="http://news.gallup.com/poll/217346/trump-job-approval-stabilizing-lower-level.aspx?g_source=POLITICS&g_medium=topic&g_campaign=tiles">political</a> <a href="http://news.gallup.com/poll/219320/seven-dissatisfied-governed.aspx?g_source=POLITICS&g_medium=topic&g_campaign=tiles">institutions</a> is low, we can expect that the vast majority of Americans will respect the court’s decisions on the controversial issues it faces this term.</p><img src="https://counter.theconversation.com/content/84242/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Nelson receives funding from the National Science Foundation. </span></em></p><p class="fine-print"><em><span>Eric Plutzer's research has been supported by the National Science Foundation, Russell Sage Foundation, Spencer Foundation, and Templeton Foundation.</span></em></p><p class="fine-print"><em><span>Michael Berkman has received funding from the National Science Foundation, Spencer Foundation, John Templeton Foundation.</span></em></p>
A survey asked Americans what they would do if the Supreme Court started making many unpopular decisions. Here’s what they said.
Michael Nelson, Jeffrey L. Hyde and Sharon D. Hyde and Political Science Board of Visitors Early Career Professor in Political Science and Affiliate Law Faculty, Penn State
Eric Plutzer, Professor of Political Science, Penn State
Michael Berkman, Professor Political Science and Director of McCourtney Institute for Democracy, Penn State
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/79487
2017-06-15T06:41:55Z
2017-06-15T06:41:55Z
Explainer: why three government ministers might face contempt of court charges
<figure><img src="https://images.theconversation.com/files/173899/original/file-20170614-15456-lmgphf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Greg Hunt is one of three Turnbull government ministers ordered to appear before Victoria's Supreme Court on Friday.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>Victoria’s Supreme Court <a href="http://www.abc.net.au/news/2017-06-14/ministers-called-to-court-to-defend-comments-on-judiciary/8618502">has ordered</a> three Turnbull government ministers to appear before it on Friday to explain why they should not be referred for prosecution for contempt of court. A journalist and newspaper editor who reported their remarks have also been ordered to attend.</p>
<p>The ministers – Greg Hunt, Alan Tudge and Michael Sukkar – <a href="http://www.theage.com.au/victoria/ministers-to-be-hauled-before-supreme-court-after-criticising-terror-sentencing-20170614-gwr6t0.html">had made comments</a> critical of what they saw as Victorian judges’ leniency when it came to sentencing terror offenders. Sukkar was quoted as claiming the judges’ approach “has eroded any trust that remained in our legal system”, and that:</p>
<blockquote>
<p>Labor’s continued appointment of hard-left activist judges has come back to bite Victorians.</p>
</blockquote>
<p>Hunt was <a href="http://www.theage.com.au/victoria/ministers-to-be-hauled-before-supreme-court-after-criticising-terror-sentencing-20170614-gwr6t0.html">reported as warning</a> that the courts:</p>
<blockquote>
<p>… should not be places for ideological experiments in the face of global and local threats from Islamic extremism.</p>
</blockquote>
<p>These comments were made in the context of Victoria’s Court of Appeal hearing appeals last week against the leniency of sentences imposed on three men convicted of terror-related offences. This included an appeal against the ten-year jail sentence <a href="http://www.theage.com.au/victoria/jail-sentences-for-men-guilty-of-terrorrelated-offences-too-lenient-court-told-20170609-gwnxtd.html">imposed on Sevdet Besim</a>, who was convicted of plotting to behead a police officer during the 2015 Anzac Day parade. The court had reserved its decision.</p>
<p>The judicial registrar, Ian Irving, <a href="http://www.theage.com.au/victoria/ministers-to-be-hauled-before-supreme-court-after-criticising-terror-sentencing-20170614-gwr6t0.html">has said in a letter</a> to Attorney-General George Brandis that the statements:</p>
<blockquote>
<p>… appear to intend to bring the court into disrepute, to assert the judges have and will apply an ideologically based predisposition in deciding the case or cases and that the judges will not apply the law.</p>
</blockquote>
<h2>What is contempt of court?</h2>
<p>Contempt of court is an offence designed to protect the proper administration of justice and uphold the court’s authority. </p>
<p>The power to punish contempt is part of the inherent jurisdiction of the state supreme courts. The <a href="http://www.austlii.edu.au/au/legis/vic/num_reg/sccpr2015n103o2015514/s75.11.html">penalty for contempt</a> may be imprisonment and/or a fine. However, the offence is unusual in that no maximum penalty applies.</p>
<p>The reported comments appear to potentially be an example of contempt by publication. There are two types of contempt by publication – <em>sub judice</em> contempt and scandalising the court.</p>
<h2>Sub judice contempt</h2>
<p><em>Sub judice</em> contempt refers to publications that interfere with a specific proceeding that is currently before the court. This would apply in this case if the comments are viewed as referring to last week’s Court of Appeal hearings. </p>
<p>For contempt to be found, the publication <a href="http://eresources.hcourt.gov.au/showbyHandle/1/233327">has to have</a>:</p>
<blockquote>
<p>… a real and definite tendency in practical reality to preclude or prejudice the fair and effective administration of justice.</p>
</blockquote>
<p>The Judicial Conference of Australia <a href="http://www.jca.asn.au/wp-content/uploads/2013/10/P18_01_49-Media-release-Grossly-improper-attack-on-Vic-judiciary-13-June-2017.pdf">has suggested</a> the ministerial remarks:</p>
<blockquote>
<p>… could be misinterpreted as an attempt to influence the Court of Appeal in determining the CDPP’s [Commonwealth Director of Public Prosecutions] appeal. </p>
</blockquote>
<p>This needs to be weighed against two key factors. </p>
<p>The first is the recognised defence of public interest, which surely must be given great weight in this case when the topic of discussion is as important as terrorism and national security.</p>
<p>It may have been prudent for the ministers not to have commented until after the reserved decision had been handed down. But, the unfortunate reality is that terrorism-related prosecutions are almost a continuous feature of the modern Australian legal landscape. </p>
<p>Punishing general comments about sentences for terrorism-related offences as contempt risks seriously curtailing public discussion about one of the most important issues presently facing both Australia and the world.</p>
<p>The second factor is that the relevant court proceeding was an appeal before judges, and not a trial by jury. Judges are expected to put prejudicial material to one side, and are not considered to be at risk of improper influence to the same extent as jurors. To find <em>sub judice</em> contempt in such a case would be unusual.</p>
<h2>Scandalising the court</h2>
<p>Scandalising the court is a more general form of contempt. It applies to publications seen as interfering with the continuing administration of justice by undermining public confidence in the courts. </p>
<p>A publication may be held in contempt <a href="http://eresources.hcourt.gov.au/downloadPdf/1935/HCA/34">if it</a>:</p>
<blockquote>
<p>… aims at lowering the authority of the court as a whole or that of its judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office.</p>
</blockquote>
<p>This is a jurisdiction that should only be exercised in exceptional cases. <a href="http://eresources.hcourt.gov.au/showbyHandle/1/233606">It is recognised</a> that “the good sense of the community is ordinarily a sufficient safeguard” against improper judicial criticisms.</p>
<p>The general comments that were made about judicial appointments and “ideological experiments” arguably fall into this category. Justice Robert Beech-Jones <a href="http://www.jca.asn.au/wp-content/uploads/2013/10/P18_01_49-Media-release-Grossly-improper-attack-on-Vic-judiciary-13-June-2017.pdf">described the comments</a> as “a slur on the character of the Victorian judiciary”. He noted that: </p>
<blockquote>
<p>… they should have never have been stated by any minister but especially by a minister in a government about a decision involving that government which is before the court. </p>
</blockquote>
<p>Criticising the ministerial comments as being incorrect or unfounded is one thing. But this response seems to go further, and comes dangerously close to suggesting that any ministerial criticism of judicial appointments inevitably risks undermining public confidence in the judiciary. </p>
<p>Scandalising the court is a contempt that should only be applied in exceptional cases. Anything less than this results in the judiciary being perceived as effectively exempted from criticism, which itself runs the risk of undermining public confidence in the justice system.</p>
<h2>What’s at stake?</h2>
<p>This case is extremely unusual. It is one thing to criticise the statements the ministers made – and the Judicial Conference of Australia was quick to do so. It is quite another for the court to threaten contempt proceedings. </p>
<p>It is obviously important to protect the institutional integrity and independence of the judiciary.</p>
<p>However, it is also important that the judiciary and judicial decisions are not immune from criticism – particularly when the issues concerned involve matters of such high public importance as Australia’s response to terrorism.</p><img src="https://counter.theconversation.com/content/79487/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lorraine Finlay is affiliated with the Liberal Party of Australia, being a member of the WA Division.</span></em></p><p class="fine-print"><em><span>Joshua Forrester receives an Australian Postgraduate Award.</span></em></p>
It is obviously important to protect the institutional integrity and independence of the judiciary – but the judiciary and judicial decisions should not be immune from criticism.
Lorraine Finlay, Lecturer in Law, Murdoch University
Joshua Forrester, PhD Candidate in Law, Murdoch University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/66372
2016-10-06T20:13:42Z
2016-10-06T20:13:42Z
Kenya’s new Chief Justice must press on with cleaning up the judiciary
<figure><img src="https://images.theconversation.com/files/140203/original/image-20161003-20205-1vew75h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A prison officer stands guard outside the Chief Magistrate's court in Nairobi. Safeguarding reforms is key mandate for the in-coming Chief Justice</span> <span class="attribution"><span class="source">Noor Khamis/Reuters</span></span></figcaption></figure><p>Kenya will soon have a new Chief Justice. Court of Appeal judge David Maraga was nominated by the Judicial Service Commission after a series of public interviews. He is expected to be <a href="http://www.nation.co.ke/news/1056-3402386-5j6sg8z/">confirmed</a> by the National Assembly, barring any last-minute scandal. That seems unlikely. </p>
<p>In a country where accusations of judicial corruption are frequently levelled, the press has enthused about Maraga’s <a href="http://www.standardmedia.co.ke/article/2000217063/maraga-is-the-antidote-judiciary-needs-colleagues-say/?pageNo=3">ethical reputation</a>.</p>
<p>Special mention has also been made of the <a href="http://www.the-star.co.ke/news/2016/09/22/the-bible-and-the-law-nominated-chief-justice-david-maraga-in-profile_c1425216">clean bill of health</a> he received from the judicial vetting process established four years ago to root out corruption and other misconduct in the judiciary. </p>
<p>The vetting process proved to be highly contentious. Judges have claimed that it violated their independence. Others have expressed concern that vetting may not have eradicated judicial corruption, in the light of new scandals that have emerged concerning judges of the <a href="http://www.nation.co.ke/news/Tribunal-recommends-removal-of-Justice-Joseph-Mutava/1056-3389746-format-xhtml-t4letf/index.html">High Court</a>, where a tribunal headed by Maraga recently recommended the removal of a judge. A Supreme Court judge was also hauled before a <a href="http://www.nation.co.ke/news/Tribunal-ends-Sh200m-bribery-probe-Tunoi/1056-3269652-f3eflaz/index.html">tribunal</a>.</p>
<p>If he becomes Chief Justice, Maraga will have the opportunity to build on the legacy of the vetting process, and to ensure that it is not misunderstood.</p>
<h2>What was the vetting process?</h2>
<p>Kenya’s 2010 Constitution required all judges and magistrates to undergo individual screening, referred to as “vetting”. The reason for this was that the judiciary was thought to suffer from systemic corruption. Even worse, perceptions that senior judges were too close to government seemed to have played a part in escalating the <a href="http://www.kas.de/wf/doc/kas_16094-1522-2-30.pdf">post-election conflict of 2007-2008</a>. </p>
<p>A Judges and Magistrates Vetting Board was <a href="http://www.nation.co.ke/News/Omollo+faces+panel+as+judges+vetting+starts++/-/1056/1333086/-/ms119g/-/index.html">convened</a> in 2012 and recently published its <a href="http://www.jmvb.or.ke/reports/">final report</a>. The board vetted 53 judges and 298 magistrates. It found 11 judges and 14 magistrates to be unsuitable for judicial office, leading to their removal from the judiciary.</p>
<p>Besides the logistical feat of screening so many judicial officers, the Kenyan vetting process has been an impressive achievement for two reasons.</p>
<p>The first is that it represents an innovative and balanced way for a state in constitutional transition to manage the risks of retaining existing judges who have come under generalised suspicion. This was done without losing all their skills and experience. In this, Kenya may have contributed a new model that will be useful to other transitional societies. </p>
<p>The second is the way in which the vetting process was developed. Both the legal framework and the implementation were shaped by intense bouts of negotiation and significant periods of collaboration. These occurred between politicians, judges, lawyers and civil society – groups which often don’t see eye to eye. </p>
<h2>A new model for transitional societies</h2>
<p>New democracies from Latin America to Eastern Europe have struggled to find effective ways of ensuring the integrity and competence of their judges. There is <a href="http://www.icj.org/icj-launches-new-practitioners-guide-on-judicial-accountability/">no single established model</a> for how to tackle this challenge. </p>
<p>In stable constitutional democracies, the investigation and disciplining of judges is usually left to bodies either wholly or substantially composed of judges. This is done to protect the institutional independence of the judiciary. But this approach breaks down when there are more than a few bad apples in the judiciary, a situation which sadly many transitional societies face. </p>
<p>This mistake undermined the credibility of Kenya’s earlier <a href="http://www.nation.co.ke/news/Judge-warns-against-repeat-of-radical-surgery-mistakes/1056-1034734-28uk5oz/index.html">“radical surgery”</a> in 2003 when then President Mwai Kibaki attempted to root out corruption in the judiciary. Both evidence-gathering and disciplinary hearings were entrusted to judicial bodies. To make things worse, the President and his newly appointed Chief Justice intervened in the process by publishing a “list of shame” before all the judges concerned had been shown the allegations against them. </p>
<h2>Opportunity for a new approach</h2>
<p>The opportunity for a new approach came in 2008. The <a href="http://www.klrc.go.ke/index.php/our-work/national-accord-and-agenda-four-commissions">National Reconciliation and Dialogue Agreement</a>, set up to address the post-election violence, identified both constitutional and judicial reform as objectives. </p>
<p>The drafting of a new constitution was delegated to a Committee of Experts, which finally recommended vetting as a middle route between dismissing all judges and allowing them all to retain their positions. The declared aim was to minimise the loss of experienced judges while ensuring those who were left were fit to uphold the new Constitution. </p>
<p>While the committee of experts was consulting on these issues, a judicial task force was also inquiring into the state of the judiciary and possible reforms. The task force backed a vetting process. Finally, the public voted <a href="http://www.bbc.com/news/world-africa-10876635">overwhelmingly in favour</a> of the draft Constitution in a referendum in August 2010.</p>
<p>It was left to Parliament to implement it, which MPs did by passing the <a href="http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/VettingofJudgesandMagistratesNo2of2011.doc">Vetting of Judges and Magistrates Act</a>. </p>
<p>The vetting <a href="http://www.jmvb.or.ke/board-members/">board</a>, though not a judicial body, was made up of three Kenyan lawyers, three representatives of civil society, and three serving or retired judges from other Commonwealth jurisdictions. This meant that the board had Kenyan legal expertise, the experience of Kenyans who had lived under the old judiciary and international judges who were not likely to be drawn into local vendettas. </p>
<h2>Climate of suspicion</h2>
<p>But the board still had to contend with a climate of suspicion from both the public and the judges. Only two chose to be interviewed in public. One of them was Maraga, who dramatically insisted on swearing an oath that he would never take a bribe. More importantly, the board rejected the few complaints that had been made against him and praised his dedication and efficiency as a judge and his work with rural justice providers and prisons.</p>
<p>All judges and magistrates received a written decision on their suitability from the board, which was also <a href="http://www.jmvb.or.ke/determinations/">published</a>. Decisions were based on the board’s assessment of each judge or magistrate’s work record, financial disclosure form, complaints received from the public and how the judge or magistrate dealt with questions posed by board members during the vetting interview. </p>
<p>The interaction between the board and the courts was fraught at times. There were numerous attempts by judges to challenge the legality of the vetting process. On several occasions orders were issued <a href="http://www.standardmedia.co.ke/article/2000066991/court-suspends-vetting-of-judges-for-14-days">suspending</a> the process. It took a courageous <a href="http://www.standardmedia.co.ke/article/2000140559/fate-of-sacked-judges-sealed-as-supreme-court-dismisses-appeal/?pageNo=2">decision</a> of the Supreme Court to end these challenges by referring to the clear constitutional words which shielded the vetting process from review in the courts.</p>
<p>A major challenge facing the board was the need for cooperation and support from other institutions. Information sharing was sometimes limited, and there was no special protection for whistle-blowers who wanted to reveal judicial corruption. The board developed its own impressive machinery for receiving and investigating complaints against judges and magistrates.</p>
<p>Complaints against 47 magistrates have now been forwarded to the Judicial Service Commission (JSC), because the Supreme Court ruled that they fell outside the vetting period. If Maraga is appointed Chief Justice then he will also chair the JSC. Dealing with these complaints will be an important item on the JSC’s agenda.</p>
<h2>The legacy of vetting</h2>
<p>Historians will have the last word about whether the board was effective in “restoring confidence in the judiciary”, its stated mission. The entire process clearly affected the reputation of individual judges. It certainly strengthened the credentials of some, such as Maraga, while exposing the misconduct of others. </p>
<p>It cannot be assumed that the vetting process uncovered every instance of judicial corruption or other wrongdoing prior to 2010. But it is an important step that direction. Maraga’s leadership will be essential to continuing this work.</p>
<p><em>The author assisted the Judges and Magistrates Vetting Board as a research consultant. All views and opinions expressed are his own and not those of the Board or any of its members.</em></p><img src="https://counter.theconversation.com/content/66372/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The author assisted the Judges and Magistrates Vetting Board as a research consultant. All views and opinions expressed are his own and not those of the Board or any of its members.</span></em></p>
Despite some criticism, the screening of 50-odd judges and nearly 300 magistrates was a remarkable achievement. But Kenya’s new Chief Justice has some cleaning up left to do.
Jan van Zyl Smit, Associate Senior Research Fellow, British Institute of International and Comparative Law
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/54184
2016-02-09T08:40:39Z
2016-02-09T08:40:39Z
How a country’s constitutional court can consolidate and deepen democracy
<figure><img src="https://images.theconversation.com/files/110585/original/image-20160208-2634-c5ka81.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">AIDS activists demand that the government of then-South African president Thabo Mbeki show a clear plan to fight the disease.
</span> <span class="attribution"><span class="source">Reuters</span></span></figcaption></figure><p>Twenty-two years after the end of apartheid, South Africa’s Constitutional Court is one of the few meaningfully independent public institutions left in the country.</p>
<p>Its decisions on <a href="http://www.cambridge.org/za/academic/subjects/law/constitutional-and-administrative-law/politics-principle-first-south-african-constitutional-court-19952005">political and social rights</a> in particular have helped to counteract the worst effects of the governing African National Congress’ <a href="http://www.theguardian.com/world/2014/may/09/anc-wins-fifth-election-south-africa-jacob-zuma">political dominance</a>. In this way it has contributed to the consolidation of South Africa’s democracy.</p>
<p>How has the court come to play this role?</p>
<p>Neither of the two main currents in the literature on the conditions for independent judicial decision-making really provides an explanation. </p>
<p>The first, called “the regime politics view”, holds that constitutional courts seldom deviate far from the ideological preferences of the dominant political coalition in a country. </p>
<p>While true of the <a href="http://www.supremecourt.gov/">US Supreme Court</a> for much of the last century, this theory does not travel well. It also fails to account for judicial agency – the capacity of constitutional courts to exert an independent influence on the political environment in which they operate.</p>
<p>The second, “tolerance interval theory”, stresses the capacity of constitutional courts strategically to build their institutional power. The problem with this theory is that it treats courts as ordinary political actors. But their independence self-evidently depends on maintaining a reputation for legally motivated action.</p>
<p>The South African experience suggests there may be a middle road between these two theories.</p>
<h2>Improving democratic processes in the ANC</h2>
<p>In the Treatment Action Campaign (TAC) <a href="http://www.saflii.org/za/cases/ZACC/2002/16.html">case</a>, for example, the court was able to enhance the quality of the ANC government’s internal democratic processes. That is significant because the ANC’s political dominance means the quality of democracy within the party is one of the major determinants of the quality of South African democracy more generally.</p>
<p>The case concerned a demand by a social movement that the government expand the pilot sites it had created for the prevention of HIV transmission between pregnant mothers and their infants.</p>
<p>As <a href="http://www.702.co.za/articles/4352/get-up-stand-up-meet-mark-heywood-co-founder-of-treatment-action-campaign">Mark Heywood</a> has shown, what lent the case its distinctive character was the way in which the <a href="http://www.tac.org.za/files/10yearbook/index.html">TAC</a> ran it from inside the ANC as a case that centrally concerned then-president Thabo Mbeki’s leadership style. In bringing its claim, the TAC was thus careful to enlist the support of the <a href="http://www.cosatu.org.za/">Congress of South African Trade Unions</a>, a member of the governing ANC-led <a href="http://www.anc.org.za/kids/main.php?id=14">alliance</a>. </p>
<p>In this sense, the successful outcome of the case is attributable to the applicant’s skill as a public impact litigator. But the court also played an active role.</p>
<p>The flexible review standard it had adopted in the earlier <a href="http://www.saflii.org/za/cases/ZACC/2000/19.html">Grootboom case</a> facilitated the TAC’s litigation strategy. And the diplomatic way in which Chief Justice Arthur Chaskalson worded the <a href="http://www.saflii.org/za/cases/ZACC/2002/16.html">court’s decision</a> did much to quell the executive’s resistance to the constitutionally required outcome.</p>
<p>The court’s role in improving the quality of the ANC’s internal democratic processes can also be seen in the <a href="http://www.saflii.org/za/cases/ZACC/2012/31.html">Ramakatsa case</a>. Here the issue was whether the ANC’s failure to respect its own procedural rules for the selection of delegates to a provincial party conference violated the constitutional right to political participation. </p>
<p>Before the TAC case, a credible argument might have been made that the right to participate in a political party’s activities could not be violated by internal procedural irregularities of this sort.</p>
<p>After the TAC case, it was clear that the quality of democracy in South Africa is as much about the right to have one’s voice heard within the party of one’s choice as it is about the right to join a political party. That doctrinal advance cleared the way for the court in Ramakatsa to uphold the appellants’ claim.</p>
<h2>An active player</h2>
<p>The TAC and Ramakatsa cases show that, while constrained by South Africa’s dominant-party regime, the Constitutional Court has not been an entirely passive actor in the drama of the country’s politics. In small, incremental steps, it has been able to expand the constitution’s reach into areas previously thought to be off-limits. </p>
<p>In this way the court has been able to counteract some of the more pernicious effects of the country’s slide into <a href="http://www.pprotect.org/library/investigation_report/investigation_report.asp">maladministration</a>, patronage politics and <a href="http://www.corruptionwatch.org.za/why-is-corruption-getting-worse-in-south-africa/">corruption</a>.</p>
<p>By carefully managing public perceptions of their appropriate role in national politics, the South African example suggests that constitutional courts may be able to expand the range of democratic rights that they are able to enforce.</p>
<p>This may, in turn, contribute to improvements in the functioning of the democratic system in ways that sustain the court’s democracy-strengthening capacity over time. In the best-case scenario, courts may be able to trigger a virtuous feedback loop, with each decision they take to protect the democratic system. This would enhance their capacity to continue doing so.</p>
<hr>
<p><em>This article is based on a longer paper, Constitutional Courts as Democratic Consolidators: Insights from South Africa after 20 years, published in the Journal of Southern African Studies in 2016.</em></p><img src="https://counter.theconversation.com/content/54184/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Theunis Roux does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
One of the remarkable achievements of South Africa’s Constitutional Court has been its role in improving the quality of the internal democratic processes within the governing ANC.
Theunis Roux, Professor of Law, UNSW Sydney
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/52009
2015-12-09T07:06:49Z
2015-12-09T07:06:49Z
What the Pistorius trials tell us about racism in South Africa’s judiciary
<figure><img src="https://images.theconversation.com/files/104873/original/image-20151208-32408-1jgfple.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Judge Thokozile Masipa during Oscar Pistorius' trial in the High Court. </span> <span class="attribution"><span class="source">EPA/Kim Ludrook</span></span></figcaption></figure><p>The state’s <a href="http://www.justice.gov.za/sca/judgments/sca_2015/sca2015-204.pdf">successful appeal</a> against the verdict in the Oscar Pistorius case brings the quality of work done by South African high court judges back under public scrutiny.</p>
<p>This is not a new phenomenon in South Africa. But underlying the debate is much more than the quality of the country’s judges. It is also about race and gender. South Africa’s judiciary remains dominated by men and has a higher proportion of white judges compared to the country’s <a href="http://www.justice.gov.za/docs/articles/20130510-dm-tranformation.html">race demographics</a>.</p>
<p>The public debate on the quality of High Court judges started receiving public attention in earnest during the <a href="http://constitutionallyspeaking.co.za/transcript-of-jsc-interview-with-justice-mogoeng-2009/">formal interviews</a> of the current chief justice, Mogoeng Mogoeng, in 2011. When he was nominated, his previous judgments as a High Court judge were thoroughly researched by various public interest organisations. The findings were <a href="https://www.issafrica.org/iss-today/is-the-appointment-of-justice-mogoeng-mogoeng-as-chief-justice-in-the-interest-of-the-people">damning</a>.</p>
<p>Questions were asked about how he became the judge president of the North West High Court division and how he eventually made it to the Constitutional Court.</p>
<p>Public law professor <a href="http://www.randomstruik.co.za/books/the-zuma-years/5128">Richard Calland</a> described the episode as:</p>
<blockquote>
<p>… a class warfare; a cultural clash between the epitome of the modern, progressive Constitution … and the reactionary, socially conservative world view of another place.</p>
</blockquote>
<p>Perhaps the debate about the quality of High Court judges after the high-profile Pistorius trial reflects a different cultural clash in South Africa. This is one in which the un-transformed legal profession all too often associates incompetence with black people. </p>
<h2>The need to defend Masipa speaks volumes</h2>
<p>Black lawyers are regularly stereotyped and their competence <a href="http://www.bdlive.co.za/national/law/2015/10/16/storm-over-lack-of-black-counsel-in-landmark-silicosis-case">questioned</a>. The differences in judicial opinion, similar to the outcomes in the Pistorius case, are elevated to unfortunate magnitudes to portray the transformation of the judiciary as inherently bad.</p>
<p>The Supreme Court of Appeal in the Pistorius decision was conscious of this point. It recognised that the successful appeal might generate adverse commentary about Judge Thokozile Masipa, the black female judge who heard the case in the High Court. In particular, it was clearly concerned about questions being raised about her abilities as a judge.</p>
<p>The Supreme Court emphasised that:</p>
<blockquote>
<p>… the trial judge conducted the hearing with a degree of dignity and patience that is a credit to the judiciary. The fact that this court has determined that certain mistakes were made should not be seen as an adverse comment upon her competence and ability … the fact that the appeal has succeeded is not to be regarded as a slight upon the trial judge who is to be congratulated for the manner in which she conducted the proceedings.</p>
</blockquote>
<p>This well-intended concluding paragraph is both ironic and unfortunate given the alarming way in which the court of public opinion <a href="http://www.foxnews.com/world/2014/09/16/oscar-pistorius-trial-judge-faces-criticism-threats-over-verdict/">disagreed</a> with Masipa’s initial judgement. </p>
<p>There is no doubt that social commentary at the time was also <a href="http://www.bdlive.co.za/opinion/columnists/2014/09/16/masipas-pistorius-ruling-puts-judicial-error-in-the-spotlight">racially prejudiced</a>.</p>
<p>It is unfortunate that the Supreme Court had to anticipate (rightly) the public discourse that might arise from its judgment, and that it felt the need to defend Masipa’s competence. </p>
<p>Had she been a white male whose decision was overturned, the Supreme Court would not have been compelled to defend him. His competence would not have come into question.</p>
<p>The Supreme Court’s concluding paragraph is a sad reflection of the fact that South Africa remains an inherently prejudiced society in which incompetency is associated with race.</p>
<p>It also puts the spotlight on transformation of the legal profession as a whole. Transformation is about creating conditions that are open, bias-free and non-hierarchical. It is also about removing prejudices so that talent can flourish, unhindered by assumptions often linked to race and <a href="http://www.wits.ac.za/files/25gim_578095001427098673.pdf">gender</a>.</p>
<p>Diversity is seldom debated as a pressing issue in the legal profession. The lack of diversity is usually only raised after interviews by the <a href="http://www.dgru.uct.ac.za">Judicial Service Commission</a> for the appointment of senior members of the judiciary. One of its roles is to ensure the transformation of the judiciary. How it balances the need for racial and gender diversity often comes under scrutiny. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/104876/original/image-20151208-32388-ftv6lz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/104876/original/image-20151208-32388-ftv6lz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=405&fit=crop&dpr=1 600w, https://images.theconversation.com/files/104876/original/image-20151208-32388-ftv6lz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=405&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/104876/original/image-20151208-32388-ftv6lz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=405&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/104876/original/image-20151208-32388-ftv6lz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=509&fit=crop&dpr=1 754w, https://images.theconversation.com/files/104876/original/image-20151208-32388-ftv6lz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=509&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/104876/original/image-20151208-32388-ftv6lz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=509&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Chief Justice Mogoeng Mogoeng, left, with President Jacob Zuma. The judge’s suitability as chief justice was questioned.</span>
<span class="attribution"><span class="source">Reuters/Siphiwe Sibeko</span></span>
</figcaption>
</figure>
<p>The commission has done fairly well in increasing the number of black judges. But the situation remains dire. There are currently only five female judges out of 24 at the Supreme Court and three female judges out of 11 at the Constitutional Court. </p>
<h2>What does transformation really mean</h2>
<p>The <a href="http://www.wits.ac.za/law/cals">Centre for Applied Legal Studies</a>, which is based at University of the Witwatersrand and uses law to protect human rights, has rightly affirmed that talent and diversity are not alternatives. Diversity after all is not inconsistent with talent and ability.</p>
<p>For a robust debate about the quality of High Court judges perhaps there first needs to be an understanding of three questions:</p>
<ul>
<li><p>What is meant by transformation?</p></li>
<li><p>What are the barriers to transformation?</p></li>
<li><p>How should these barriers be addressed?</p></li>
</ul>
<p>Transformation is often understood in the legal profession, as well as socially, as the appointment or promotion of black people to positions they would otherwise not qualify for. But as the centre’s report advocates:</p>
<blockquote>
<p>… transformation should be about the removal of barriers that hinder talented lawyers from opportunities to develop and gain skills to advance their careers.</p>
</blockquote>
<p>Barriers to transformation span across the different stages of a lawyer’s career. Black law graduates struggle to find jobs and have limited connections to established members of the profession. In addition, the cultural alienation in the legal profession affects the rise of black lawyers. The centre also identifies:</p>
<ul>
<li><p>covert racism;</p></li>
<li><p>briefing patterns that exclude black lawyers; and</p></li>
<li><p>the “trailblazer phenomenon”, in which a few black lawyers are used as the benchmark in assessing other black professionals.</p></li>
</ul>
<p>All these affect the rise of competent black lawyers to the bench.</p>
<p>Transformation of the judiciary is inextricably linked to the transformation of the legal profession. To settle the debate about the quality of High Court decisions, we first need to understand the barriers to transformation and then debate the various patterns that continue to entrench them. We must also be honest and accountable in our debate so that we can begin to find sustainable solutions.</p><img src="https://counter.theconversation.com/content/52009/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Fola Adeleke does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The debate about the quality of High Court judges after the Pistorius trials reflects a different cultural clash in South Africa – one in which incompetence is often associated with black people.
Fola Adeleke, Senior Researcher in Investment and Administrative Law, University of the Witwatersrand
Licensed as Creative Commons – attribution, no derivatives.