On the occasion of the 10th anniversary of the establishment of the Consultative Council of European Judges, the forum formulated an important document regarding so-called fundamental principles, which is being referred to as a magna carta of judges. The recommendations were duly adopted by the Committee of Ministers on November 17, 2010.
While by and large, the majority of these principles already form an integral part of our legal framework, other aspects are not too apparent and are worth commenting upon.
The issue regarding the assignment of cases has always proved to be a sore point in our juridical system. In this respect, the charter in question has quite a lot to say.
In clause 24 of the relative document, for example, we find the following: “The allocation of cases, within a court, should follow objective pre-established criteria in order to safeguard the right to an independent and impartial judge”.
Previously, the assignment of judicial work was the prerogative of the Minister of Justice. Justifiably, this practice was abrogated and now this important task has been justly assigned to the Chief Justice. The reshuffling of court work by the Executive branch of state had been viewed by many as undue interference in the judiciary. In truth, it must be pointed out there were instances in times gone by when the government would reassign judicial duties to suit its whims. Thus, this reform was welcome and fitting.
The opposition however, especially over the past few years, still had occasion to lament in certain instances the way cases were being allocated. A decision was taken to transfer certain sensitive and highly polarised cases to certain judges. Such cases include libel suits and cases of judicial review of administrative acts. The opposition had felt that, in such instances, there should not have been such an arbitrary selection because this could negatively affect confidence in the administration of justice and appear to be a kind of forum shopping.
Similar criticism was levied when one particular judge had been a priori excluded from hearing constitutional cases because this definitely goes against the spirit of the Constitution itself, which bestows authority on all civil courts to entertain such suits.
Moreover, it has lately come to public notice that a number of lawsuits pertaining to one particular plaintiff were curiously removed from those judges who were handling them and subjectively assigned to one particular judge. Unless there is some particular justification for all of this, the move seems to be unreasonable. In fact, this decision completely contradicts the provisions of clause 9 of the charter mentioned above. This states that “a case should not be withdrawn from a particular judge without valid reasons. A decision to withdraw a case from a judge should be taken on the basis of objective, pre-established criteria and following a transparent procedure by an authority within the judiciary”.
In this respect, the charter affirms it is only the presiding judges themselves who should be allowed to decide on their own whether to withdraw or otherwise from a particular case.
The said document deals primarily with issues regarding the independence of the judiciary. This principle is given priority throughout the whole charter. Interestingly, when emphasising the importance of this notion, it does not do so merely with regard to the Executive but speaks also of internal independence within the judiciary itself. It stresses that hierarchical judicial organisation should not undermine judicial independence and that superior courts should not address instructions to judges on the way they should decide individual cases, except in appellate rulings.
This, to my mind, resonates the principle that the Chief Justice should be generally considered primus inter pares and that the judicial organ of state should never be afforded too much executive powers. The said document in this respect makes it amply clear the remedy for judicial errors should lie only within an appropriate system of appeals and that the powers-that-be, coming from whichever pillar of state, should avoid criticism that would undermine the independence of or public confidence in the judiciary.
The magna carta of judges makes very interesting reading from a juridical perspective. As Shadow Minister for Justice, I will surely take the opportunity in future contributions to share my reflections on this vital document and examine those instances where our system would not be that compliant. The initiative behind the charter is, after all, to affirm the independence of the judiciary within the state. The charter makes it a point to ascertain that the independence of the judiciary secures for every person the right to a fair trial and, therefore, is not a privilege to judges but a guarantee of human rights and fundamental principles, allowing every person to have confidence in the justice system.
Dr Herrera is a Labour member of Parliament.