Almost three years ago, four justices of India’s highest court held a press conference to publicly air concerns about the administration of justice in that country. The press conference made international news, but it appears that it has not catalyzed significant change. At least, that it the view of this op-ed:
It appeared to have been alleged that in certain important matters the allocation of cases was done in a manner that could lead to desired outcomes.
If true, this was a profoundly serious charge.
There has been no change in this and the allocation is still being done by the Chief Justice at his own sweet will with no rational or transparent method.
There is still no transparency in the selection of judges.
The press conference by the judges was a historic first in the history of the judiciary anywhere in the world. It yielded no result and got reduced to a mere publicity event.
I wonder if this will get new traction in the coming year.
Chief Justice Frank Clarke, Ireland’s seniormost judge, will not be accepting the €5,200 (approximately $6,300) annual pay raise afforded to him by that country’s government. The Irish Independent explains that “The move is understood to have been a personal gesture by Mr Justice Clarke in recognition of the economic hardship caused by the pandemic. However, the disclosure is likely to put pressure on colleagues to signal a willingness to do likewise.”
The Irish government approved pay raises for all the country’s judges, as well as other government officials. The pay raises come wrapped in controversy, as the government has simultaneously refused to pay student nurses on the frontlines of the pandemic. The circumstances certainly create an awkward situation for judges, who presumably would like to take the pay hike but also want to avoid public blowback.
In October, I pointed out the childish posturing of Senate Democrats, who boycotted the Judiciary Committee’s confirmation vote for Justice Amy Coney Barrett and sent cardboard cutouts in their place. The stunt made a mockery of one of the Senate’s core responsibilities, and I suspect that it played at least a small role in the Democrats’ poor showing in November’s legislative races.
Unfortunately, such spectacles are not limited to the United States. Earlier this week, three right-leaning Israeli lawmakers boycotted the meeting of that country’s Judicial Appointments Committee, evidently believing that their absence would prevent a quorum and preclude the Committee from appointing two Israeli Arabs to judicial positions.
They were wrong. The law allows the committee to meet with any number of members present, as long as there are at least seven members on the committee roster. Because the boycotting politicians never resigned from the committee, the committee had the requisite number of members to move forward even in their absence. Ultimately, the committee appointed 61 judges, include one of the Arab candidates.
If there are good reasons to oppose a judicial nominee, by all means politicians should vote to oppose. But preventing the wheels of government from operating purely for partisan gain harms the judiciary and insults the public.
The Rwandan government has changed its system for recuiting judges, ending the practice of requiring judicial candidates to pass specific recuitment exams. Instead, judges will now be political appointees. Under the lew legislation:
judges shall instead be appointed by the High Council of the Judiciary upon recommendation by the Bureau of the Judiciary.
They will be appointed based on their integrity, expertise and excellence they are known of in their career, and in their normal private life, other than gauging their capacity on their level of passing recruitment tests.
I don’t pretend to know enough about Rwanda’s political or judicial system to opine on the motivations for the change. But if a state that traditionally has employed a career judiciary –with testing and training up of young judges up front — suddenly moves to a system of politically appointing judges as a capstone to their legal careers, it’s certainly noteworthy.
The Canadian nonprofit Democracy Watch has filed a new lawsuit in federal court in Toronto, alleging that the country’s method of choosing federal judges violates the Canadian Constitution. Specifically, Democracy Watch claims that the process consolidates too much power in the hands of the Minister of Justice and Attorney General of Canada, a single cabinet position which is politically appointed.
Under the current appointment process, provincial advisory committees (most of whose members are appointed by the justice minister) submit to the justice minister a list of candidates for each judicial opening. The justice minister then consults with other cabinet members and members of Parliament from the governing party. After consultation, the justice minister has the final choice for appointment.
This certainly sounds like the justice minister has enormous leverage, especially since there is no obligation to consult with opposing parties or to seek out views from outside the minister’s inner circle. In this respect, the process may preclude outstanding candidates from being considered, and therefore may have an effect on the overall quality of the judiciary. Whether this is truly a constitutional problem or merely a policy one, I cannot say. But the case will be worth following, both for the ultimate result and for how Canadian federal judges address delicate questions regarding the constitutionality of their own appointments.
Courts across the world are continuing to think creatively in light of the ongoing COVID-19 pandemic. Some Scottish courts will now be holding socially distanced jury trials in movie theaters, where the 15-person juries can spread out, watch the presentation of testimony and evidence on the big screen, and then deliberate in person.
This follows similar efforts in the UK and US to use large open spaces for trials, including fairgrounds and convention centers. While we all look forward to the day when trials are back in a proper courtroom, the efforts to keep the wheels of justice turning are surely praiseworthy.
Ha’aretz reports that Israel’s Courts Administration has been asking Google, Twitter, and other social media and search sites to scrub selected stories that appear to be critical of Israeli judges. While some of the stories are apparently incomplete or inaccurate, others appear to be straightforward mainstream media reports in which one or more judges is directly criticized for official actions. From the story:
“In some cases, the Courts Administration didn’t inform the relevant media outlets that it had requested an article’s removal. Moreover, it never informed the Justice Ministry that it was trying to remove such articles, and its legal adviser, Barak Lazer, did not mention this fact when he briefed the Knesset on the task force’s work in 2018.
The task force was formed by former Supreme Court President Asher Grunis due to an increase in online attacks on judges, particularly on social media. Its job was to ask social media companies to remove offensive posts. It also warned the people who wrote them that if the posts weren’t removed, the Courts Administration may take legal action against them.
A Courts Administration official said the task force contacts Google only if a judge complains; it doesn’t go looking for problematic content online. But a senior Justice Ministry official said that this did not make its conduct acceptable.”
No, it doesn’t. Wow.
No, it doesn’t.
I have been remiss in posting regularly about the assault by Poland’s ruling PiS party on the country’s judiciary. The problems began back in 2017, when President Andrzej Duda and his compatriots began intimidating and pressuring the state’s judiciary undet the guise of ferreting out the remnants of communism. The government’s efforts included a reform bill that gave the ruling party enormous power to select judges, an attempt at forced judicial retirement, and repeated acts of political intimidation.
The assault continued last year with the creation of a politically charged “Disciplinary Office” for judges whose rulings did not tow the PiS party line, and an effort by the deputy justice minister to blackball judges critical of the party.
Duda was elected to another term last month, and the capture of the state’s once-independent judiciary now appears to be sadly complete. The court system’s independence is now so in question that a Dutch court has refused to extradite a suspect back to Poland unless forced to do so by the European Union. A Reuters article provides more context:
Polish rule of law has become an increasing matter of dispute within the EU, as critics say the ruling nationalist government has undue influence over judicial appointments.
The International Chamber of Amsterdam’s District Court said it did not believe Polish courts were independent of government and it would not extradite the suspect until the EU Court of Justice told it to.
In April, the EU executive opened a case against Poland’s government over muzzling judges. That came after Poland had passed a new law making it possible to punish judges who criticize the system.
“These developments harm the independence of the Polish judiciary so much that it cannot operate independently of the Polish government and parliament,” the Dutch court said in a statement.
While Democrats are tactlessly trying to shame the Supreme Court and the President inanely attacks judges on Twitter, real problems of judicial independence are spreading around the world. Where is American leadership on this issue?
I am delighted to have a new essay up on JOTWELL, reviewing Amnon Reichman, Yair Sagy, and Shlomi Balaban’s recent article, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges. It’s a terrific look at the Israeli’s courts’ development of case management technology, and the impact of that technology on its judges, all told through a subtle organizational lens. A snippet from the start of the review:
Court systems are large, complex, diverse, and resource-dependent organizations, a condition that shapes their character and behavior. It is surprising, then, how often court leaders fail to account for the organizational perspective in their decisionmaking. Amnon Reichman, Yair Sagy, and Shlomi Balaban illustrate this phenomenon, showing how the visionaries behind Legal-Net, Israel’s cloud-based judicial management system, were plagued by their failure to place its development in a broader organizational context.
Reichman and his colleagues trace the Israeli courts’ development of Legal-Net over two decades. Their research reveals a court system brimming with confidence that technology could be used to regulate judicial behavior, but insufficiently appreciative of the challenges of technological integration. The first version of Legal-Net was a flop: complicated and ambitious, it was a poor fit with existing court culture. A subsequent version better accounted for the court system’s unique character, but court leaders failed to anticipate how significantly its implementation would affect that character. In fact, the authors explain, the introduction of Legal-Net “heralded a tectonic shift in the judiciary’s work culture and work patterns,” as judges tailored their behavior toward the system’s incentives and away from their traditional roles. Today, it seems, the Israeli courts work for Legal-Net as much as Legal-Net works for them.
Please read the whole thing!
I am no expert in the Japanese legal system, but I was intrigued by this article (in translation, from Nippon.com) which sets out some of the history and mechanics of the country’s judicial system. In particular, I was struck by how strongly the modern judiciary has been influenced by American occupation after World War II, both positively (adoption of the political question doctrine, overt commitment to judicial independence) and less positively (e.g., direct American interference in high profile cases in the immediate postwar years). I was similarly struck by the Japan’s embrace of bureaucratic approach to judging that is common in civil law systems across Europe and Latin America.
A good, relatively short read.