Dommeres uavhengighet i 2022

The term judicial independence describes the autonomy of the judge vis-à-vis the state. Its conceptual twin is impartiality which requires that a judge may not favour any party. A judge who is not independent and not impartial is biased and must recuse himself. Dictatorial systems do not know judicial independence.

In the national context, there are essentially two systems of appointing judges worldwide: lifetime appointment or election for a fixed term with the possibility of re-election. Judges with lifetime mandates are appointed by a special body such as parliament, or the government in most European countries and in many U.S. States. In Norway, the justices of the Supreme Court are appointed for lifetime by the King who acts on the advice of the country’s Judicial Appointments Board. The judges of the U.S. Supreme Court are even appointed for full-life terms.

Fixed term = increased democratic legitimacy

Appointment for life guarantees independence, according to general opinion. Life terms also entail an accepted “moral hazard” because such judges do not run any risks. In Switzerland and in some U.S. States, however, judges are elected for a renewable fixed term. This is problematic from the point of view of independence, but it increases democratic legitimacy. Moreover, it is possible to get rid of an unsuitable judge.

At the Swiss Federal Supreme Court, judges are elected by the Federal Parliament. Each political party is entitled to the number of judgeships that corresponds to its strength in the Parliament.

I have always been critical of this system, but perhaps it is more honest than certain foreign legal systems where political affiliation is taken into account in a non-transparent way.

The EU-screening

In international and supranational courts, judges are appointed by the governments involved for a fixed term; at the ECJ and EFTA Court, for six years, with the possibility of reappointment, something which compromises independence.

At the European Court of Human Rights, judges are appointed for a single, non-renewable, nine-year term. Different countries have different expectations of their intended judges at international and supranational courts. Certain governments choose candidates from whom they expect their concerns to be understood.

In some systems, corrective mechanisms have been introduced. For example, a panel has been created in the EU to screen proposed candidates for independence and suitability. At the European Court of Human Rights, judges are selected by the Parliamentary Assembly of the Council of Europe from a list of three drawn up by governments. An expert committee scrutinizes the candidates beforehand.

Three recent incidents should be noted

(1) In the U.S., Republicans succeeded in installing a clear majority of justices of their provenance on the Supreme Court, which promptly overturned the 1973 Roe v Wade abortion precedent.

(2) In Germany, Stephan Harbarth, a prominent CDU member of parliament and business lawyer close to Chancellor Merkel, became President of the Federal Constitutional Court in controversial circumstances. The court subsequently waved through massive encroachments on fundamental rights by politicians in connection with COVID without much ado. It even ruled that judges who attended a dinner with Mrs. Merkel where COVID was discussed while a case was pending were not biased.

(3) In the EEA/EFTA, the EFTA Surveillance Authority refused to open infringement proceedings against the three EEA/EFTA States which continue to resist the setting up of an expert panel following the EU model.

Judicial independence needs eternal vigilance

In each of these cases, the reputation of the judiciary has been damaged. The U.S. Supreme Court should have taken into account the fact that Roe v Wade was ”the law of the land” for almost fifty years and should have been aware of the dangers of undermining precedent. Instead, it has engaged in pure politics, only poorly masked by legal arguments.

Commenting on the first major COVID ruling from Karlsruhe, “Neue Zürcher Zeitung” (“NZZ”) journalist Fatina Keilani aptly observed: “Only one player can still rely on the Federal Constitutional Court: the Federal Government.” Of course, this shift in power may spill over into economic law. The absence of an expert panel in the EEA/EFTA means, in effect, that governments can second a long-serving bureaucrat or other figure loyal to the state to the EFTA Court.

In Switzerland, the so-called “Justice Initiative”, under which federal judges would no longer have been elected by parliament but by lot, was clearly rejected by the voters and the cantons. The initiative was too radical, but it has triggered a discussion. In any case, the first thing to be done is to prohibit federal judges from being obliged to pay a percentage of their salary to their parties (“mandate tax”).

Fair, principled, open justice is at the core of democracy. Ensuring this is equally important in the national and in the international and supranational context. A judge whose independence or impartiality is at doubt may taint the image of the judiciary as a whole. Because the issue of judicial independence is timeless, there must be eternal vigilance.