JUDICIAL INDEPENDENCE VS. JUDICIAL ACCOUNTABILITY JUDLITY JUDICIAL SELECTION MODELS FOR CONSTITUTITUTIONAL COURTS

A COMPARATIVE ANALYSIS

Abstract

In March 2006, the New York Times reported that a man in Afghanistan was facing a death sentence for the crime of apostasy, converting from Islam to Christianity. The United States Secretary of State reportedly called the President of Afghanistan to urge a “favorable resolution.” Meanwhile, the President of the Afghanistan Supreme Court expressed his intention to maintain his judicial independence and resist whatever interference with the resolution of the case. 

For our juridical culture it is impossible to conceive that a person would face a death sentence for a personal view concerning religion. But how do you feel about a judge who claims his independence of judgment under the law in such a case? Judicial independence is generally viewed as an essential feature of liberal democracy; thus, don’t we want judges to exercise their independent judgment in interpreting and applying the law? The answer to this question is ambiguous. Yes, we want judges to exercise their independent judgment but so long as they are not too independent. Indeed, judges should be accountable to the public, especially to democratic institutions. Actually, as the role of courts has increased around the world, country after country has begun to face what Professor Alan Paterson succinctly described as a «conundrum of the apparently insoluble tension between judicial independence and judicial accountability».

Indeed, rarely these two principles find the right balance and it is evident in several contexts especially if you look models and procedures to select Constitutional and Supreme Court Judges. Indeed, often the way judges are recruited is not exclusively an administrative datum which affects only social and professional composition of the bench but it is an element which affects also the relationship that the judiciary establishes with other political actors, first of all, the people and the political institutions. As Herbert Kritzer said, with regard to the United States: «we are fundamentally conflicted about the role of law in politics and the role of politics in law, and that is evident in our ambivalence toward the way we choose and retain judges».

Usually when we refer to Supreme and Constitutional Courts, we speak about judicial review, rarely we study Courts’ structure and the way this structure could influence their functioning. Indeed, judicial selection procedures for constitutional judges contain norms which convey important values: values which are able to influence both Courts’ status and role in the constitutional order. The consequence is that Judicial selection process is not a neutral procedure: norms which refer to judicial selection, like all the positive norms of the system, convey a value. As J.H.H. Wailer said: «it is evident that there is not a neutral standing between two options».The method to select the judiciary is so rooted in a broader context which involves various individuals, groups and political institutions which can influence Judicial independence. Indeed, in economics, judicial recruitment would be defined as an “endogenous” variable, i.e. a variable which is a function of other variables.

In this paper who wrote makes a comparative analysis of judicial selection procedures for Constitutional Courts in five well known countries: three (France, Italy and Germany) belonging to civil law tradition and two (United States and United Kingdom) belonging to common law tradition. Indeed, we are going to talk about a “sample group” of countries which are able to make easier the analysis of the relationship between Judicial independence and accountability in Judicial selection.

Indeed, the most part of the countries in the world select Constitutional Judges through political procedures: however none of them choose “direct” democracy model. Indeed, normally they choose intermediate models which substantially reflect one of these two principles: independence or accountability. The content of these two principle could appear obvious but it is not. Indeed, on the one hand, it is important to consider that when we refer to “Judicial independence” we comprehend both external and internal independence: in fact, as everybody knows, the first one regards to the independence of judges from the other constitutional powers; the second one, the independence of judges from the other judges. On the other hand, when we refer to “Judicial accountability” we must also consider that it is something different from judicial “responsibility”: the last one generally arises from the violation of norms (especially in meeting debts or payments). It is perfectly sharable and non always final. On the contrary, accountability can never be shared, indeed it affects in some way ethics and governance (for this reason it is often called “ultimate responsibility”). Finally, accountability is related to an “account-giving relationship” between individuals: in this context, a judge should be accountable not only to written norms, but also to people and society so to democratic institutions.

These two principles, independence and accountability, usually have an instrumental nature: indeed, they are pursued because of their capacity to give legitimacy to Courts. However, it often happens that from pillars of courts’ legitimacy they became “absolute” principles. The risks are, with regard to judicial independence, to have Courts too much separate from political context and political institutions; with regard to accountability, instead, the relevant risk is to have Court too much politicized (so susceptible to be influenced by political parties). These situations often determine political crisis and institutional antagonisms.

In this paper, we suggest to find out the instruments to face such institutional crisis, often caused
by these absolutisms, in the rules of Constitutional Courts’ composition and selection. Indeed, we think that these rules could have a crucial role to increase Courts’ legitimacy, especially with regard to the other constitutional bodies. For these reasons, is necessary to analyze carefully these six elements: legal sources and transparency in judicial selection, number of Judges, professional requirements and Justices’ professional background, tenure in office, authorities involved in judicial nomination, Dissenting and Concurring opinion.

In all the countries analyzed, the full consideration of these elements would give fundamental information to understand the relationships between constitutional justice and form of government.