Dissenting Opinion and Judicial Independence

AuthorJulia Laffranque
Pages162-172

Julia Laffranque

Dissenting Opinion and Judicial Independence

1. Introduction

The stability and effectiveness of judicial power in implementing the rule of law is guaranteed by the independence of the courts and the judges. Independence of the courts has been an object of legal and political debate in Estonia for quite a while, especially in connection with Estonia's aspirations towards membership of the European Union. The subject has been covered in various studies2. It is inevitable, though, that the studies cannot deal in detail with all the aspects of the independence of the courts, and focus mainly on the institutional independence of the courts.

According to § 146 of the Estonian Constitution3, the courts shall be independent in their activities and shall administer justice in accordance with the Constitution and the laws. Independence of the judges is guaranteed with the procedures for the administration of justice established by laws and with the secrecy of deliberations in the process of making the judgment. But how is the latter in conformity with the possibility guaranteed in a collegial court to judges who have remained in the minority in the voting to add, on certain conditions, their dissenting opinion to the majority opinion of the court? Does the dissenting opinion undermine the authority of the court and violate the principle of secrecy of deliberations, or does it strengthen the court's reputation and make the administration of justice more transparent? Is it in conflict with the principle of the independence of a judge, or does it, on the contrary, add to the independence of a judge?

Until now, legal literature in Estonia, with some exceptions4, has dedicated regrettably little attention to the institute of judicial dissent. This gap in the Estonian legal doctrine needs to be filled also because recently the topic has gained currency in different European countries (discussions on the introduction of the dissenting opinion in the Italian and French legal orders) as well as in the European Court of Justice where expressing of the dissenting opinion is not allowed5.

The present article deals, from the legal point of view, with the dogmatic, historical, comparative and political aspects of the dissenting opinion.

2. Judicial dissent
2.1. Definition of the dissenting opinion - what is a dissenting opinion?

An opinion in the administration of justice is understood as the judge's or court's position on a certain legal issue or with regard to a pending case, which also provides an explanation of the reasoning behind the position. The opinion of the majority of the court is drawn up as the court judgment. The minority opinion, or the dissenting opinion or dissenting vote (German abweichende Meinung, Sondervotum, French opinion dissidente), is the opinion expressed by one judge or jointly by several judges who disagree with the decision reached by the majority in the case. Such a separately expressed opinion can differ from the majority opinion for its reasoning, or reasoning and the conclusion6. Anglo-American legal literature distinguishes between the dissent and the dissenting opinion. Dissent in the administration of justice can mark the direct disagreement of one or several members of the bench with the majority opinion7. A dissent by a judge can, but does not need to, give rise to a dissenting opinion, i.e. formulating of the disagreement as a dissenting opinion. In Germany, in the Federal Constitutional Court (Bundesverfassungsgericht, BverfG), distinction is made between the substance of the dissenting opinion (abweichende Meinung) and its presentation as an opinion, i.e. its procedural form (Sondervotum)8. The concurring opinion (German abweichende Meinung nur in der Begründung, French opinion concordante) is an opinion where the judge agrees with the result of the judgement but not with the reasoning.

2.2. History and reasons of the dissenting opinion - where and why the dissenting opinion originated Why would a judge maintain a dissenting opinion?

Roots of the dissenting opinion can be found in common law countries. England, where the results of reaching the judgement are public, has two legal systems: continental law, which does not recognise dissenting opinions by judges, and common law, which allows not only dissenting opinions but in all court cases also the individual expression of each judge's opinion. The first, the continental system, included for a long time the Judicial Committee of the Privy Council where the dissenting opinion did not occur for historical reasons9. However, the House of Lords is part of the common law system. The House of Lords (the same applies to the Court of Appeal) presents not only one judgment but makes collective judgments. Namely, judges in the collegial common law courts in England decide seriatim (Latin: separately, individually, one after another), so that each judge says in an order how he would decide the case at hand10. This makes adjudication extremely complicated and it is often difficult to understand what the court's final opinion is.

Such a style of decision-making was initially also adopted in the United States, but it was exactly in the US where at the end of the 18th century the decision-making seriatim was abandoned, and under the Supreme Court Chief Justice Marshall (Chief Justice 1801-1835) the tradition of the opinion of the court was started. Votes of all the judges who participated in making the judgment were added up and the opinion was formed. Judges who maintained a different opinion could add to the opinion of the court their dissenting opinion or concurring opinion, which was also published11.

In common law countries, the dissenting opinion became quickly a completely normal part of the decision-making process. It was accepted that all judges cannot be of the same opinion in collegial decision-making and the openness of the administration of justice includes the publication of the dissenting opinion. Rupp sees the roots of the dissenting opinion, on the one hand, in the fact that Anglo-American judges are not "career judges" like judges in continental Europe who begin from the first instance in order to reach the highest court, and, on the other hand, in the fact that the tradition of public debate belongs among the fundamental building blocks of the organisation of state in the common law (legal) system12. The existence or non-existence of the dissenting opinion is connected with the different visions of the lawyer's qualification, principles of the administration of justice and the style of court judgments in the continental European and common law systems. In common law countries, the court judgment is a result of public debate. In continental Europe, however, the decision of collegial courts is anonymous, and the secrecy of deliberations is not subject to disclosure. There is fear that the disclosure of the dissenting opinion may endanger the judge's independence13. Common law countries, on the other hand, consider the disclosure of the judge's dissenting opinion to be the main criterion of the independence of a judge14. However, it is impossible to draw a strict line between the development of the common law and continental European legal traditions. Openness of the administration of justice was known not only in England but also elsewhere. According to Feuerbach15, the Germanic tribes in Germany administered justice publicly, thus in principle also not hiding dissenting opinions although they were not directly favoured16. Later, as the law became more complicated and Roman law was recognised, the old Germanic traditions of the administration of justice were replaced with the canonical procedure characteristic of collegial courts equipped with professional advisers, where the deliberations took place hidden from the public and the secrecy of deliberations applied17.

In addition to the question about how the dissenting opinion originated historically, we also need to answer the question why a judge would maintain a dissenting position and decide to express it as a dissenting opinion.

The dissenting opinion can, on the one hand, derive from the judge's personality, the character differences of the judges on the bench, and, on the other hand, from the organisation of decision-making - the course of deliberations18. The dissenting opinion can be knowingly directed at changing the court practice in the future and drawing the public attention to it. It is good if the dissenting opinion is impelled by the need to make "the right judgment" and not by the judge's desire to gain prominence.

2.3. Comparative review of the dissenting opinion in courts of other countries

Dissenting opinion and its disclosure is known mainly in the countries of the Anglo-American legal family - for example, England together with Wales and Northern Ireland, Ireland, the United States, Canada, Australia, New Zealand and such countries affected...

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