The Quality Of Judges
| Author | Sandra E. Oxner |
| Profession | President of the Canadian Institute for the Administration of Justice |
| Pages | 307-378 |
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The Honorable Judge Sandra E. Oxner is a retired judge of the Nova Scotia Provincial Court, Canada, where she served for 25 years. She is a past president of the Canadian Institute for the Administration of Justice, chaired the education committee of the Commonwealth Magistrates' and Judges' Association, and is the founding and current president of the Commonwealth Judicial Education Institute. She has organized or taught in judicial education programs in Canada; the United States; England; Australia; East, South and West Africa; the Caribbean; Asia; Yemen; China; and Russia. Judge Oxner has been active in judicial reform as president of the Canadian Association of Provincial Court Judges, the Canadian Institute for the Administration of Justice, and the Commonwealth Magistrates' and Judges' Association, and as adviser to the World Bank, the Asian Development Bank, the Inter-American Development Bank, UNDP, CIDA, USAID, and the Ford Foundation. She is an officer of the Order of Canada. Her publications include Evaluation of Judicial Education, Educatus (June 1999); Judicial Education and Judicial Reform in The Judiciary in Africa (Juta & Co. Ltd. 1997); and Judicial Education in the Commonwealth (Report of the Tenth Triennial Meeting of the Commonwealth Magistrates' and Judges' Association 1994). Without further attribution, the author draws substantially on the second publication listed. This article is based on a paper delivered by the author at a conference on Empowerment, Security, and Opportunity through Law and Justice held in St. Petersburg, Russia, sponsored by the World Bank and the Russian Federation (July 2001).
Page 307
The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.1
Judges decide. The settings in which they must render decisions are varied and frequently complex. In constitutional democracies in which a charter of rights de- fines the rule of law, the courts must measure legislative and executive actions against the state's constitutional authority. In jurisdictions which are not constitutional democracies, courts have the role of protecting the citizen from improper executive encroachment on their civil and human rights and implementing domestically international human rights treaties to which their country is a party. Judiciaries are also important state actors " a branch of government that serves generally to support the authority of the state when it acts within its constitutional powers.2
The judiciary has become a more powerful and visible branch of government. Reasons for this increased presence include: more state intervention in life; increased technology " from motor cars to e-commerce " giving rise to more Page 308 disputes to be resolved; the global community, which has given us global crime and crime detection, money laundering, and international drug traffic; the rise of human and civil rights advocacy; class and public interest actions; a more iconoclastic public demanding accountability of all public office holders; and a changed judicial role in many jurisdictions: from interpreting the law under the principle of parliamentary sovereignty to judicial policy making in constitutional democracies with charters of rights.3 In countries of the civil law tradition, the trend from judge as passive referee to a more powerful force is seen in the "orality movement."4Thus the quality of judges is a vitally important aspect of the modern judicial system.
If the judiciary is perceived as inferior or even irrelevant because of a reputation of incompetence, corruption, inefficiency or an inability to bridge the gap between laws and justice; because the transaction costs are too great; because of other access issues such as language or distance; because it is illegitimate5 as unrepresentative of the community, then the citizens will find alternate means of resolving civil disputes and protecting values, persons, and property. In such instances, differences among citizens " and sometimes between citizens and the state " will be settled outside of the formal justice system. Some will be illegal and socially destructive. Others, like traditional community-based extra judicial dispute settlement methods, may provide a useful social service. All may pose a threat to the status of the formal judiciary and lessen its ability to perform its important functions. The social contract will be weakened, and the courts will have a lesser opportunity to strengthen the state. The faith of the community in the courts will diminish, further weakening the judicial branch and lessening its ability to attract necessary state funding. In sum, a high-quality judiciary is indispensable to a well- functioning social order.
This article reviews the following as determinants of quality that would need to be taken into account in any meaningful judicial reform effort: judicial selection, training, remuneration, evaluation, and discipline. Because in too many countries high levels of corruption have perverted the system, this article reviews the nature and causes of corruption and offers a remedial set of measures.
Page 309
Some progress has been made in determining the appropriate parameters of judicial independence in a democracy and determining minimum standards of judicial independence against which to measure legislative, executive, and judicial performance.6 Since the early 1980s there has been a movement to develop the concept of judicial independence (and the integrity it protects) at the international level by the enumeration of its key features.7 This began with the United Nations Draft Principles on the Independence of the Judiciary (1981) ("Siracusa Principles"), the International Bar Association's Minimum Standards of Judicial Independence (1982) ("New Delhi Standards"), the Montreal Universal Declaration on the Independence of Justice (1983) ("Universal Declaration"), U.N. Basic Principles on the Independence of the Judiciary (1985), Procedures for the Effective Implementation of the Basic Principles on the Independence of the Judiciary and the Draft Universal Declaration of Justice (1989) ("Singhvi Declaration").8
Following on these came the Beijing Statement of Principles of the Independence of the Judiciary in the Law Asia Region 1995,9 the Universal Charter of the Page 310 Judge by the International Association of Judges 1999,10 the European Association of Judges Charter 199911 and the Commonwealth Latimer House Guidelines on Judicial Independence 1999.12
An analysis of seven of these international standards on judicial independence may be found in chart A in the appendix. They identify, among other issues, the following key factors: security of tenure; an impartial appointment process based on objective facts and factors, including integrity, ability, and experience; an adequate and protected salary; freedom from transfer; freedom from interference from superior judicial officers in decision-making outside the appellate process; objective and transparent assignment of cases; protection from civil liability; physical security; executive support for judgment enforcement; absence of retroactive legislation; protection from abolition of courts; and sufficient budget to provide reasonable resources for the judges to do their work.13
A comparison of the standards reveals that the more recent Beijing Principles take more account of judicial accountability " responding to a more pressing need in 1995 than in the 1980s. It also shows how...
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