Tag: judicial independence

Tunisian president clamps down on independent judiciary

This past weekend, Tunisian President Kais Saied issued a decree dissolving the country’s High Judicial Council and replacing it with a handpicked “Temporary Supreme Judicial Council.” The move gives Saied the power to remove any judge for “failing to do his professional duties” — i.e., any reason Saied comes up with — and further prohibits the judiciary from going on strike in protest of the changes.

Middle East Eye explains:

Saied’s relations with the judiciary have been on edge since he consolidated power last summer.

In July 2021, Saied, who won the presidential election in 2019 as an independent candidate, suspended parliament, dismissed the prime minister and assumed vast executive powers. He has been ruling the country by decree for months, bypassing the powers granted to him in the constitution. His power grab measures were labelled as a coup by critics and opposition groups, a charge that Saied rejects.  

The CSM – a body meant to remain free from political interference – was one of the last institutions in the country to remain outside his control. The council was established in 2016, after independent members were elected to it; their role is to oversee the appointment of judges, promotions, and disciplinary proceedings.

But over the past few months they have come under increasing scrutiny from the president. 

On multiple occasions, Saied has accused the council of failing to resolve high-profile cases, including the political assassination of left-wing leaders in 2013.

Saied accused the council of appeasing political forces within the country, namely Islamist-leaning factions like Ennahda, the biggest party in the suspended parliament.

In December, the Tunisian Association of Judges raised the alarm, saying the president’s ongoing campaign against the judiciary was turning the public against them. At the same time, cases accusing judges of wrongdoing started to emerge. At least a dozen judges were placed under house arrest as a result. 

Among them is Bechir Akremi, former general prosecutor of the Tunis Court of First Instance, who was placed under house arrest days after Saied announced his power grab in July. 

Akremi was accused of deliberately concealing important files regarding the 2013 assassinations of Tunisian leftist leaders Chokri Belaid and Mohamed Brahmi. He was also accused of being heavily influenced by the Ennahda party. In January, Akremi’s case was dropped on appeal, over technicalities, much to the displeasure of Saied.

“Unfortunately, some judges in the courts have manipulated this case,” Saied said last week. “This is not the first trial where they have tried to hide the truth for years.”

Judge Akremi’s case has become emblematic of the clash of power between Saied and the judiciary. Opposition groups warned Saied was trying to use the high-profile cases of political assassination as a guise to expand his powers and crush opponents. 

The move in Tunisia is reminiscent of the recent attacks on judicial independence by authoritarian regimes in Poland and Romania. And the moves are drawing thousands to protest in favor of judicial independence. Many fear the decree will open the door to sacking judges for purely political reasons.

This does not look good. It will be worth watching carefully.

Roberts to Congress: Thanks, but we’ve got it all under control

For 2022, the Chief Justice leans into an alternative view of judicial independence. Will it be enough to keep Congress at bay?

Chief Justice Roberts’s 2021 Year-End Report on the Federal Judiciary, dropped (as always) on New Years Eve, struck a more substantive and somewhat edgier tone than in years past. The Chief Justice identified three particular areas of focus for the Judicial Conference of the United States in the coming year: addressing financial disclosure and recusal obligations for federal judges, monitoring new mechanisms for reporting and stopping workplace harrassment, and preventing undue forum shopping in patent cases.

All three of these issues have been the subject of regular, and sometimes intense, Congressional scrutiny in recent years. But the Chief Justice’s report largely rejects the prospect of legislative fixes. Rather, consistent with the federal courts’ approach to the workplace harrassment scandal when it first broke in 2017, Roberts assures his readers that the Judicial Conference is willing and able to handle each of these issues internally. 

It’s not to see why the Chief Justice would go this route. As this blog has routinely described, the federal courts (like all courts, and indeed all organizations) operate under constant pressure from their external environments. Neoinstitutional theory identifies three types of pressure: coercive (the need to comply with legislation and other government mandates), mimetic (the need to be in line with similar institutions in order to maintain legitimacy), and normative (the need to adhere to social and professional norms). The federal courts face all three types of pressure, but are particularly susceptible to coercive and normative pressures. If the federal judiciary is not seen as ethical and apolitical, it will face Congressional action and lose legitimacy with the bar, the media, and the public. 

There is no question that the pressure has been turned up in recent weeks. The Wall Street Journal‘s expose on federal judges who failed to recuse from cases in which they held a financial stake was a significant blow to the judiciary, and has invited Congressional hearings. Some in Congress have used the scandal as an opportunity to resurrect additional transparency proposals, including courtroom cameras and free PACER access. And, of course, the progressive effort to pack the Supreme Court looms in the background, along with the ongoing politicization of judicial confirmation hearings and the Supreme Court’s forthcoming decisions on abortion and gun rights. It is fair to say that the federal courts are currently facing more external pressure and scrutiny than at any time since the 1960s. Continue reading “Roberts to Congress: Thanks, but we’ve got it all under control”

El Salvador’s authoritarian regime ousts country’s top judges

Disturbing news over the weekend from El Salvador, where authoritarian president Nayib Bukele and the ruling Nuevas Ideas party removed five judges from the country’s supreme court. The judges were immediately replaced with new judges loyal to the regime.

The move drew significant international criticism, including a warning from U.S. Secretary of State Antony Blinken about the necessity of an independent judiciary in a democracy. On Twitter, Bukule responded, “We are cleaning house … and this doesn’t concern you.”

When autocrats seek to consolidate their power, their first move is often to undermine or replace the judiciary. Just as the citizens of Venezuela or Poland.

EU sues Poland over 2019 judicial law

Poland’s ruling Law and Justice Party (PiS) has been working assiduously to forge a politically subservient judiciary since 2017, when it first passed legislation to purge certain judges and install others favorable to its policies. These policies have been regularly condemned by Poland’s neighbors, and have already led to lawsuits. Now the EU is taking the next step: suing the Polish state in the European Court of Justice, arguing that the most recent round of changes to the Polish legal system undermine judicial independence.

Deutsche Welle explains:

At issue is the Polish law affecting the judiciary that came into force in February last year.

It prevents judges from referring questions of law to the ECJ. It also created a body that rules on judges’ independence without regard to EU law.

The bill also oversaw the creation of a “disciplinary chamber” to oversee Polish supreme court judges. This chamber — criticized for its close ties to the government — has the power to lift their immunity, allowing for judges to face criminal proceedings or cuts to their salaries.

One judge, Igor Tuleya, faced suspension and a 25% salary cut in November. He was among the justices to resist the changes to the legal system.

The Commission wants the ECJ to suspend the 2019 law as well as the disciplinary chamber and the decisions it has made concerning judges’ immunity, “to prevent the aggravation of serious and irreparable harm inflicted to judicial independence and the EU legal order.”

Poland has denied any breach of judicial independence, and challenges the EU’s power to regulate its internal judicial affairs.

Another chapter in a distressing saga.

Concerns about India’s judiciary remain unresolved

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.

Dutch court raises official doubts about legitimacy of Polish judiciary

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?

An interesting overview of the Japanese judiciary

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.

 

Thai judge shoots himself in open court in defense of judicial independence

The global media is starting to report on a horrific incident that took place in a Thai courtroom at the beginning of October. Judge Khanakorn Pianchana had just announced the acquittal of five criminal defendants accused of murder when he grabbed a handgun and shot himself in the chest. In a 25-page document explaining his actions, Judge Khanakorn claimed that he had been under political pressure from the ruling authorities to convict the defendants of murder, even though the evidence against the defendants was insufficient and obtained primarily through improper interrogation and detention measures.

Judge Khanakorn survived the shooting and is now recuperating from his injuries. But the incident has shaken Thailand. One issue is why he would take such a drastic step as to attempt suicide in the courtroom. Khanakorn himself explained that he could not ethically convict the suspects without adequate proof, but he knew his career would be destroyed if he exonerated them. Others, however, have postulated that Judge Khanakorn is suffering from extreme depression and related issues that prompted him to try to take his own life.

In any event, it is a stunning incident, and a sad moment for the judge and for the administration of justice.

 

The Importance of the Commitment to Judicial Accountability in Massachusetts

A guest post by Lawrence Friedman

In retrospect, the contretemps at summer’s end between the District Attorney’s office and a municipal court judge in Boston looks like a case study on the importance of effective accountability mechanisms in a judicial system. The dispute between prosecutors and Judge Richard Sinnott arose following the arrest of counter-demonstrators during the Boston Straight Pride Parade. Sinnott refused to accept an entry of nolle prosequi – the abandonment of a charge – in respect to certain defendants accused of disorderly conduct, on the ground that doing so would violate a Massachusetts statute that protects victims’ rights. The judge also ordered that a defense attorney arguing in favor of accepting the nolle prosequi be handcuffed and removed from the courtroom.

In addition to attracting a great deal of media attention, Judge Sinnott’s actions came in the wake of both a failed effort to amend the method of judicial selection in Massachusetts, and the release of the Boston Bar Association report, “Judicial Independence: Promoting Justice and Maintaining Democracy,” which defended the Commonwealth’s system of judicial selection through gubernatorial appointment with approval by the governor’s council. The responses to Sinnott’s denial of the Commonwealth’s entry of nolle prosequi and detention of a defendant’s lawyer illustrate ways in which real accountability is possible without abandoning judicial tenure. (Full disclosure: I was a member of the working group that drafted the Boston Bar Association report).

The Massachusetts legislature rejected a recent proposal to amend the constitution to provide that judges be reviewed every seven years, an initiative aimed at ensuring judicial accountability, according to one of the sponsors, for those judges who “make poor legal decisions.” The Boston Bar Association report, on the other hand, highlighted the existing mechanisms through which judges can be held accountable within the existing system. These mechanisms include the appellate process, an enforceable code of judicial conduct, and the promotion of transparency. Each of these mechanisms has worked in the case of Judge Sinnott.

Continue reading “The Importance of the Commitment to Judicial Accountability in Massachusetts”

Poland’s new “Disciplinary Office” is another political threat to judges

The relentless threats to the Polish judiciary from the state’s ruling “Law and Justice” party have taken yet another distressing turn. Just Security reports on the state’s new Disciplinary Office for Common Court Judges, designed to control and punish individual judges who stand up for the rule of law. As the article notes:

Together with the politicization of the Disciplinary Chamber, the message is clear for all members of the judiciary: follow the party line or face the consequences. Indeed, there are early indicators that most of the disciplinary actions taken against judges so far have targeted judges who have been outspoken on issues of judicial independence and the rule of law.