Hello, and welcome to week 2. My name is Jan van Zyl Smit. I'm a Senior Research Fellow in the Bingham Centre. And one of my main research areas is the independence of the judiciary. By the end of this week, your objectives are to demonstrate an understanding of the importance of an independent judiciary to the Rule of Law. Explain how security of tenure and other protections judges enjoy are designed to strengthen the independence of the judiciary. Discuss the benefits and risks of different systems for appointing judges. In this lesson, I will talk about why independent judges are important for the Rule of Law. The next three lessons will be about how an independent judiciary works. And what a society needs to do to develop and maintain one. I will talk about the professional and personal standards we expect of judges in lesson 2, their job security and other protections in lesson 3, and how they're appointed in lesson 4. In week one, Michael explained the history and main concepts of the Rule of Law, stressing that every citizen and indeed all members of society have a stake in it. This week, we will be zooming in to discuss judges. Remember Michael's analogy with referees on the football field? I want to develop that analogy a bit further. One of the funny things about referees is that if they do their job well, people won't talk about them much. But how hard is it to do that job well and to earn and retain the trust of the players and supporters? Why are we so particular about who they are? For instance, requiring that international referees should not come from either of the countries whose teams are on the pitch? These questions are also relevant when we think about judicial independence. But we can't carry the analogy too far. Unlike in football, making arguments to a judge is encouraged in most court systems. At the Bingham Centre we talk about justice systems. That's not only to emphasise that the objective of trials and other court proceedings is to do justice in resolving disputes between private individuals, businesses, and other organisations and the State, it also highlights that there are many other activities that go on outside the courts that are relevant to the administration of justice. Including the work of the police, prosecutors, the wider legal profession, mediators, ombudsman bodies, human rights commissions, prisons and so on. Amid all these different roles, what is so interesting and important about judges and their independence? The first part is perhaps quite easy, judges are responsible for resolving disputes by applying the law to a case. In simple terms, they decide who wins or loses and the consequences could be huge from imprisonment to fines or damages awards or the setting aside of government policies or decisions and in some countries also laws. That's clearly interesting and important. The second part of my question is why does it matter if judges are independent? Imagine the counter argument, most of the justice system is paid for by our taxes, so why shouldn't judges be government employees reporting to the minister of justice? Or if we need more judges, maybe we can let big business sponsor some. I will leave you to think about these possibilities for a few moments. Imagine what it would be like if judges really were answerable to the minister of justice? In the former Soviet Union and the East European Communist States, people used to talk about telephone justice, and that phrase is still widely understood in the region today. What it means is that when a sensitive case came to court, for example, the trial of democracy activists, judges could expect a call from the minister to tell them what to do. Telephone justice is not compatible with the Rule of Law. If governments are able to influence judges, then they effectively place themselves above the law. Former Canadian Chief Justice, Beverley McLachlin, made this point in a panel discussion organised by the Bingham Centre last year on judicial independence and the Rule of Law. She said that without an independent judiciary, a society can have rule by law, in the sense that laws exist which people are required to obey. But for people to be able to seek redress themselves for breaches of the law, independent judges are needed. This brings in the classic separation of powers that Michael mentioned last week. The judiciary needs to be separate from the executive and legislative branches of government in order to ensure that government is not above the law. We will come back to the separation of powers in lesson 3 where we discuss the job security of judges. For similar reasons, the judiciary cannot be employed by or dependent on big business or other private interests who would be able to influence the judges and so shield themselves from the equal application of the law. Back to the separation of powers. When we talk about the separation of powers, the history of Western democracies such as Britain, France, or the United States is most often discussed. It's true that different models of the separation of powers exist in these systems. Think about the parliamentary system of government in the UK with the Prime Minister sitting in Parliament and answerable to it, in contrast to the presidential systems of France and the US. There are many other variations of the separation of powers in other parts of the world, as well as countries where, unfortunately, the powers are not separate because all government authority is concentrated in the hands of a single person who is effectively a dictator or perhaps a group of oligarchs or a one-party State. However, when we come to judicial independence, we find that it is a common feature of many of the different variations of the separation of powers and is essential to what makes the separation of powers an effective safeguard for the Rule of Law. Many examples could be given from outside of Western democracies, but I will leave you with just three. When Pakistan was under military rule by General Pervez Musharraf between 1999 and 2008, the Supreme Court repeatedly ruled against him, hastening the fall of his government and the return to democracy. After Kenya's 2017 presidential election, held against a background of previous violent election disputes and the torture and murder of the chief electoral IT officer, the Supreme Court found that proper vote-counting procedures had not been followed and nullified the results that showed a victory for the incumbent President Uhuru Kenyatta. In Brazil, since 2014, prosecutors and judges in the so called Lava Jato, or Car Wash, cases have uncovered a string of corruption crimes including the national oil company Petrobras and politicians from many different parties. These are all examples to my mind of judges acting bravely to ensure that government and powerful vested interests are not above the law. Other benefits of judicial independence for the Rule of Law, include legal certainty through resolving disputes and providing a fair trial which is an integral feature of international human rights treaties.
