THE IMPORTANCE OF JUDICIAL INDEPENDENCE
Remarks by
Sandra Day O'Connor
Associate Justice, Supreme Court of the United States before the
Arab Judicial Forum, Manama, Bahrain
September 15, 2003
ALEXANDER HAMILTON, one of the Framers of the United States Constitution, wrote in The Federalist No. 78 to defend the role of the judiciary in the constitutional structure. He emphasized that "'there is no liberty, if the power of judging be not separated from the legislative and executive powers.' … [L]iberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments." Hamilton's insight transcends the differences between nations' judicial systems. For only with independence can the reality and the appearance of zealous adherence to the Rule of Law be guaranteed to the people. As former U. S. President Woodrow Wilson wrote, government "keeps its promises, or does not keep them, in its courts. For the individual, therefore,… the struggle for constitutional government is a struggle for good laws, indeed, but also for intelligent, independent, and impartial courts." Let us keep in mind the importance of independence to the effective functioning of the judicial branch.
The principle that an independent judiciary is essential to the proper administration of justice is deeply embedded in Arab legal institutions. Virtually every Arab constitution guarantees judicial independence. For example, the Constitution of the Kingdom of Bahrain provides, in article 104, that "The honor of the judiciary, and the probity and impartiality of judges, is the basis of government and the guarantee of rights and freedoms. No authority shall prevail over the judgment of a judge, and under no circumstances may the course of justice be interfered with. The law guarantees the independence of the judiciary …" Article 65 of the Egyptian Constitution provides: "the independence and immunity of the judiciary are two basic guarantees to safeguard rights and liberties." Jordan's Constitution, in article 97, proclaims that "Judges are independent, and in the exercise of their judicial functions they are subject to no authority other than that of the law."
We see the same fine notions embodied in the six Bangalore Principles of Judicial Conduct, developed under the auspices of the United Nations to further the prospects of strengthening judicial integrity. The very first principle reads: "Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects." The Cairo Declaration on Judicial Independence, formulated in the Second Arab Justice Conference in February 2003, "agree[d] that an independent judiciary is the main pillar supporting civil liberties, human rights, comprehensive development processes, reforms in trade and investment regimes, regional and international economic cooperation, and the building of democratic institutions."
This principle also undergirds the place of the judiciary in the United States. The Founders of the United States recognized that it is essential to the effective functioning of the judiciary that it not be subject to domination by other parts of the government. To accomplish this goal, the United States Constitution established an independent federal judiciary by separating the law-making function of the legislative branch from the law-applying role of the judicial branch. This separation of the legislative and judicial powers has proven essential in maintaining the Rule of Law. When the roles of lawmaker and judge are played by different state actors, the danger of government arbitrariness is greatly diminished. When the power to make laws is separated from the power to interpret and apply them, the very foundation of the Rule of Law—that controversies are adjudicated on the basis of previously established rules—is strengthened.
An independent judiciary requires both that individual judges are independent in the exercise of their powers, and that the judiciary as a whole is independent, its sphere of authority protected from the influence, overt or insidious, of other government actors. In the words of the Bangalore principles, judicial independence has both "individual and institutional aspects."
Addressing first the independence of individual judges, two avenues for securing that independence reveal themselves: First, judges must be protected from the threat of reprisals, so that fear does not direct their decision-making. Second, the method by which judges are selected, and the ethical principles imposed upon them, must be constructed so as to minimize the risk of corruption and outside influence.
In the United States, protection from reprisals is achieved primarily by keeping the positions and salaries of judges beyond the reach of external forces. The U.S. Constitution provides that federal judges hold office "during good behavior." This is understood to mean for life, absent the most serious misconduct. The Constitution also assures that the compensation of federal judges may not be reduced while they are in office. Together, these provisions ensure that judges will not be afraid to enforce the law as they see it. Security in pay and position frees judges to exercise their best legal judgment in applying the law fairly and impartially to the parties before them. The Kingdom of Bahrain has taken a similar approach to ensuring that the members of the new Constitutional Court will be secure in their positions, by providing in Article 106 of the Constitution that the Court's members "are not liable to dismissal" during the period of their service.
Steps must also be taken to ensure that judges exercise their powers impartially and not according to any personal interest or outside influence. Judges must not be influenced by bias toward or against particular litigants, nor by having a personal stake in the outcome of a particular case. Judges will never win the respect and trust of the citizens if they succumb to corrupting influences. Whenever a judge makes a decision for personal gain, or to curry favor, or to indulge a personal preference, that act denigrates the rule of law. The selection of judges and the ethical principles guiding their conduct must be managed with these concerns at the fore.
Selection of judges according to the candidates' merit is, naturally, key to ensuring that a judge will act impartially. Considerations other than merit motivating a political actor to appoint a judge (or voters to elect a judge) are likely to be the very considerations that will prevent a judge from deciding cases fairly and without bias. Recognizing that these interests are served by drawing from the largest possible pool of meritorious candidates, the Beirut Declaration of the First Arab Conference on Justice recommends that "[t]he election of judges shall be free of discrimination on basis of race, color, sex, faith, language, national origin, social status, birth, property, political belonging, or any other consideration. Particularly when electing judges, the principle of equal opportunity must be followed to guarantee that all applicants for a judicial position are objectively assessed." In addition, the Declaration recommends that "[n]o discrimination is permitted between men and women with respect to assuming the judicial responsibility." Heeding these recommendations will serve not only the need to choose each candidate on merit, but will temper any institutional bias that might arise if the judiciary were entirely homogenous.
Adherence to the principles of judicial independence is not without difficulties. A particularly troubling issue is the tension that arises, once a judge is appointed, between independence from political pressure and independence from the taint of personal interest. Protection from influence exerted by other branches of government, and even by other judicial bodies, such as through life tenure and salary protection, entails to a large degree protection from discipline. Certainly, if a judge fails to adhere to the most fundamental requirements of independence—by taking bribes, for example—removal will be warranted. But short of such acts, discipline is difficult.
In the United States, maintaining a fair and independent judiciary has been accomplished with remarkable success through self-administered ethical norms. In the words of former Chief Justice Harlan Stone, "the only check upon our own exercise of power is our own self restraint." Every U.S. state and the federal judiciary has a code of conduct that promotes adherence to the highest ethical norms. The very first canon of the Code of Conduct for federal judges admonishes judges to "uphold the integrity and independence of the judiciary." As the Code of Conduct explains, "[a]n independent and honorable judiciary is indispensable to justice in our society."
In addition to placing tangible restrictions on judges' conduct, such as by prohibiting judges from deciding a case in which he or she has a personal interest, the Code of Conduct recognizes the importance of perceptions of the judiciary. A perception of corruption, bias, or other unethical traits can be almost as harmful to society's confidence in its legal system and its respect for the rule of law as the reality of those traits. Judges must not only avoid impropriety, but also the appearance of impropriety, if public confidence in the judiciary is to be maintained. Thus, the Code of Conduct for federal judges provides that judges should refrain from conduct that would create a perception that the judge's ability to carry out his or her judicial responsibilities with integrity, impartiality, and competence is impaired. By insisting that judges establish, maintain and enforce the highest standards of conduct, judicial codes of ethics are designed to ensure impartiality and that every case receives a fair hearing.
The Cairo Declaration urged governments in the Arab region to "[a]dopt a professional code of ethics consistent with the noble mission of the judiciary." A simple and attractive way to do so is to adopt the Bangalore Principles, which are a well-considered set of ethical norms. They are organized around six core values: independence, impartiality, integrity, propriety, equality, and competence. Concrete and detailed instructions give practical content to each of the values. I believe that the Principles, where adopted, will play as effective a role as the various Codes of Conduct have done in the United States.
I have so far been discussing mechanisms to ensure that individual judges will be able to perform their work free from outside influence. But an independent judiciary also requires protection from more systemic influence from other parts of government. A fundamental aspect of this institutional independence is ensuring that the judiciary receives adequate funding. Just as salary protection is necessary to individual judges' independence, overall financing issues can influence the work of the judiciary as a whole. The Beirut Declaration recommends that "[t]he state shall guarantee an independent budget for the judiciary, including all its branches and institutions. This budget shall be included as one item into the state budget, and shall be determined upon the advice of the higher judicial councils within the judicial bodies." The Cairo Declaration urged governments to "guarantee the financial independence of judiciaries." Ensuring adequate and unconditional financing, in accordance with these Declarations' recommendations, is a crucial step in insulating the judiciary from improper influence.
A more complicated issue is that of the interplay between executive officials and the judiciary. I mentioned earlier the tension that exists between independence from other government actors on the one hand and, on the other, ensuring that judges do not compromise their own independence by succumbing to personal bias or corrupting influences. In the United States, we are more solicitous of the former concern, and leave the latter mostly up to the judiciary's self-regulating ethical principles. Different circumstances might of course require that the balance between the two be struck elsewhere. Care must always be taken to ensure, however, that the independence of the judiciary not be compromised by acts taken under the guise of disciplining wayward judges.
Judicial independence is not an end in itself, but a means to an end. It is the kernel of the rule of law, giving the citizenry confidence that the laws will be fairly and equally applied. Nowhere is this interest more keenly exposed than in the judicial protection of human rights. Judicial independence allows judges to make unpopular decisions. Federal judges in the United States have at times been called upon to stand firm against the will of the majority. For instance, the 1954 Supreme Court decision in Brown v. Board of Education, which declared that separate educational facilities for children of different races are inherently unequal, provoked a firestorm of criticism in much of the country. The decision, however, was a crucial moment in the recognition of civil and political rights in the United States.
Judicial independence also allows judges to make decisions that may be contrary to the interests of the other branches of government. Presidents, ministers and legislators at times rush to find convenient solutions to the exigencies of the day. An independent judiciary is uniquely positioned to reflect on the impact of those solutions on rights and liberty, and must act to ensure that those values are not subverted. Independence is the wellspring of the courage needed to serve this rule of law function.
Every country will place its own distinct stamp on the legal system it creates, but some principles transcend national differences. The importance of a strong and independent judiciary is one such principle. But, while it is easy enough to agree that judicial independence is essential in order to uphold the rule of law, more challenging by far is the task of putting these precepts into practice.
Sandra Day O'Connor was nominated to serve on the U.S. Supreme Court by President Ronald Reagan. She took her seat September 25, 1981.