Tag: judicial independence

Another ill-advised effort to “fire” judges, this time in New Mexico

In the fall of 2006, a partisan group in Colorado tried to convince that state’s voters to adopt a ballot initiative that would retroactively remove five of the state’s seven supreme court justices. The justices’ offense? They were all appointed by the same Democratic Governor over a span of a decade. Proponents of the measure argued that the targeted justices had decided cases in a blindly partisan manner, notwithstanding all evidence to the contrary. An exhaustive and concerted effort by the state bar and other groups eventually stopped the initiative from passing, but the bad taste of populist politics remained.  In 2010, a group calling itself “Clear the Bench Colorado” again tried to remove four state supreme court justices by voting for non-retention. Again, the effort was unsuccessful.

Instrumental to countering these “clear the bench” messages has been the presence of a longstanding and well-respected judicial performance evaluation (JPE) program in the state. For nearly twenty years leading up the 2006 ballot initiative, state judges had been periodically evaluated by local commissions, and the evaluation results shared with the public leading up to each judge’s retention election. As I have documented in this article, the Colorado JPE process should be credited not only with convincing voters that their judges were highly competent and professional, but also that occasional controversial decisions needed to be placed in broader context in determining whether a judge should remain on the bench.

Unfortunately, the same trend is now infecting Colorado’s southern neighbor. A group calling itself “Clear the Bench New Mexico” is calling on voters to “fire” judges who have issued sporadic controversial decisions by voting to not retain them in office.

But maybe New Mexico’s JPE well-established can serve a similar heroic role. As set out here, the process takes a comprehensive look at the judge’s work twice during his or her term in office, focusing (as with other JPE programs) not on case outcomes, but on each judge’s capacity and commitment to providing a fair process. Individual evaluations are posted for each judge facing retention, and voters can read these evaluations and make up their own minds.

A common complaint about JPE is that retention voters rarely read the full evaluations. Many choose not to vote at all with respect to judges, and others vote haphazardly — focusing, for example, on the judge’s last name or perceived gender, or whether the judge is recommended by a lawyer friend. So there is much work to be done for the JPE process to meet its full potential. But surely it is a better way to inform the public than the half-baked wranglings of political partisans.

Head of Poland’s top judicial body claims new rules are unconstitutional, resigns in protest

Poland’s ruling party, the Law and Justice Party (PiS), recently implemented new rules that place judicial selection and retention in the hands of the legislature. The new rules are part of a larger set of deeply controversial set of judicial reforms that have virtually ostracized Poland from the rest of the European Union.

Now the head of the National Council on the Judiciary, Poland’s top judicial body, has resigned his position to protest the new rules, claiming that they violate the country’s constitution and infringe upon judicial independence. It is an important move, albeit a symbolic one, since the PiS has a dominant majority in the legislature and shows no signs of slowing its reform agenda.

Hong Kong magistrate endures racial slurs after sentencing politician for baton attack

Hong Kong magistrate Bina Chainrai sentenced a local politician to three months in prison for hitting a pedestrian with a baton during pro-democracy protests in 2014. Dozens of supporters of the politician responded after the sentencing by hurling insults and racial epithets at Magistrate Chainrai. On Wednesday, several members of the Hong Kong bar condemned the slurs and pledged support for an independent judiciary.

The tone of the condemnations, however, struck me as a bit odd. One group stated, “Any attack on judges for reasons unconnected to their decisions, irrespective of their nationality, sex or other personal attributes that they possess, are wholly unacceptable and must be strongly condemned.” Another said that “personal attacks on a judge for reasons unrelated to the judgment is an attack on Hong Kong’s judicial independence.”

I have added emphasis to both statements to make the problem clear. Personal attacks on a judge are plainly unacceptable when they are based on the judge’s race, gender, nationality, and so on. But equally inappropriate–at least from the American point of view–are personal attacks on a judge based on the substance of the judge’s opinion. It is fine to challenge a judge’s reasoning, or suggest that the opinion will lead to bad policy, but ad hominem attacks are never acceptable.

The United States is struggling through its own crisis of civility these days. The President has issued crude tweets about judges on several occasions. Some self-styled progressives cheered when Justice Antonin Scalia died in 2016. And a small cadre of academics are even trying to suggest that basic civility is a racist construct.

It’s sad to see the same problem infecting Hong Kong. Norms of civility must go hand in hand with the rule of law, in every nation and in every era. Critique judicial decisions, yes, but leave the personal attacks at home.

 

Romanian senate passes bill limiting judicial independence

Last week, Romania’s lower house passed legislation that would restrict the independence of its judiciary. Now the country’s senate has approved the same bill.  As Reuters notes,

The three bills jointly limit magistrates’ independence and set up a special unit to probe crimes committed by magistrates. This makes magistrates the only professional category with a prosecuting unit dedicated to investigating them.

The bill passed on the same day that the European Union decided to begin hearings against Poland for imposing restrictions on its judiciary.

EU exercises “nuclear option” against Poland for threatening judicial independence

This past summer, Poland passed legislation widely understood to limit the independence of its judiciary, and bring it into line with the desires of the ruling PiS (Law and Justice) party. On Wednesday, after months of pleading with the Polish government to reverse course, the European Union invoked Article 7 of its charter, which allows it to discipline member states for a “clear risk of serious breach” of the EU’s core principles — here, respect for the rule of law.  Article 7, known as the “nuclear option,” has never been triggered against a member state before.

There is a long process before discipline, if any, is invoked against Poland. But if 22 of 28 member states ultimately conclude that judicial independence is truly threatened, Poland could face EU sanctions or even loss of voting rights.

 

Romanian parliament passes controversial judicial reforms

Romania’s lower house has passed controversial legislation that will overhaul its justice system — legislation that has been widely criticized as threatening judicial independence and facilitating corruption.

From the Organized Crime and Corruption Reporting Project:

The [Romanian] legislation changes the manner in which magistrates are overseen and chief prosecutors are appointed—under the bill, the president has the right to vet prosecutors.

It also changes the source responsible for compensating for judicial errors from state funds to the judge responsible in sentencing. Experts claim this could possibly affect judges’ biases and tendencies in court rulings.

The lower house approved the bill with 179 out of 269 votes.

The European Commission and thousands of magistrates expressed concern over the legislation, saying it would allow political influence within the judicial system. Thousands of Romanians repeatedly protested against the proposed bill for its alleged power to hinder the fight against corruption. Demonstrations on Sunday drew over 10,000 people to take the streets of Bucharest, Cluj and other major cities.

“Justice, not corruption!” protesters chanted, according to ABC News.

The legislation is still pending in the upper house.

Canada’s Chief Justice emphasizes judicial independence in final press conference

Beverly McLachlin retired from the Supreme Court of Canada this week, after 28 years on the court and 17 years as its chief.  In her final press conference, Chief Justice McLachlin stressed the importance of shielding the judiciary from political interference.  From the National Observer:

“We have deep respect for our Charter of Rights and Freedoms among the people of Canada, and we have a public that values an independent judiciary, which is the best defence,” said McLachlin.

“If people stand up and say, ‘We can’t attack our judiciary, we want an independent judiciary,’ that is — in a democracy such as ours — the best way to preserve the rule of law and judicial independence.”

The Prime Minister’s statement on Chief Justice McLachlin’s retirement is here.

EU to Romania and Bulgaria: Not enough progress on judicial reform

This week, the European Commission issued its latest reports on the justice systems of two EU member states, Romania and Bulgaria. Both states have made slow progress in positively reforming their judicial systems, but  the Commission concluded that in both states, momentum for reform was lost in 2017.

Both countries have tried to put a positive spin on the report, noting they still have work to do. But they will be under renewed pressure to move closer to the Commission’s anti-corruption and transparency goals, especially in light of the significant threats to judicial independence that emerged in neighboring Poland earlier this year. The Commission’s mandate to monitor reform in both countries expires in 2019.

The full Commission reports can be found here.

 

Venezuelan judge seeks refugee status in Canada

The swirling political and financial chaos in Venezuela has been closely coupled with the ongoing desecration of judicial independence by President Nicolas Maduro’s regime.

Now the evidence of that desecration is starting to gush out.  Toronto’s Globe and Mail has published a story on Venezuelan judge Ralenis Tovar, who fled to Canada with her family in July and is now claiming refugee status there. Judge Tovar alleges that as a judge in Caracas, she was forced to sign arrest warrants for Maduro’s political enemies.  She further claims that the Maduro government tapped her phones and even attempted to kidnap her daughter from school.

From the Globe and Mail interview:

On her way home from work on Feb. 12, 2014, Ms. Tovar received a series of phone calls from an unknown number. Assuming it was an inmate, she didn’t answer. Then the president of Venezuela’s Supreme Court phoned and told her to pick up the calls. She did and was told to head back to the office.

Ms. Tovar said the court was surrounded by the National Guard and military intelligence officers when she arrived. She was greeted by four public prosecutors, who guarded her office’s door as she sat down.

She was given a folder with three arrest warrants inside. She said she didn’t recognize the first two names, but was shocked when she read the name on the third warrant: Leopoldo Lopez.

“I felt petrified because internally I knew what was the purpose of that warrant, which was to silence a political leader who was an obstacle for President Maduro,” Ms. Tovar said.

Given that it was 2 a.m., Ms. Tovar asked the prosecutors if she could review the warrant the next day. She said they laughed sarcastically and told her that if she didn’t sign it, she would end up like Maria Lourdes Afiuni, a Venezuelan judge who was allegedly raped in prison in 2010.

Terrified, Ms. Rovar signed Mr. Lopez’s arrest warrant.

Judicial independence and political freedom go hand in hand.  When one erodes, the other cannot be far behind.