A state which declares itself a legal state has to accept the role of the judiciary to maintain checks and balances on the executionof power by the legislative and executive branches. To control the latter, the judiciary is responsible for deliberating on the legality of any administrative action, and to control the former, to considerthe constitutionality of any legislation passed by parliament.
The judiciary in modern legalstates thus plays very important roles. Apart from ensuring legality, it is obliged to protect against the infringement on the rights andliberties of people by abuse of power by the state and to upholddemocracy.
Nevertheless, this intrinsic extensive function of the judiciary may bring about conflict with democratic principles. On one hand, a legal state or a liberal democracy calls on the judiciary to help to provide protection for the people's rights and liberties and to prevent the reckless execution of power by claiming the rule of the majority. On the other hand, once the judiciary attempts to control the execution of power by the state, it unavoidably has to confront the political legitimacy of the parliament and the government elected by people. However, the judiciary has no such political legitimacy.
How can we reconcile these conflicts?
Of course, if the checks and balances role of the judiciary is left out, that legal state will no longer be a decent legal state as it lacks an independent and neutral organization to check the execution of power by the state. It will be improper as well to propose election of the judiciary. This would cause the judiciary to lose its independence and in any of its actions it would constantly have to consider the votes it will gain. Thus, this method is not quite right.
One solution is perhaps to position the judiciary and urge them to perform their roles properly in compliance with the form of a legal state and democracy.
The independence of the judiciary
In general, the constitution of a liberal democratic state upholds the independence of the judiciary. For example, establishment of a court must be made possible by legislation from parliament; tribunals set up to rule on one particular case should not be possible; the transfer of a judge must be made with the consent of that judge; appointments and transfers as well as disciplinary action lie exclusively in the power of a judicial commission; the court must have independent budgetary management; judges should enjoy higher salaries and position allowances than those in other professions, etc.
The question might be raised if this independence of the justice comes with no accountability. Of course, in a democracy, no organization is left to exercise unrestrained and unaccountable power. But the accountability of the judiciary's is different from that of the legislature and the executive, which are genuinely a political apparatus. In other words, the judiciary shall not be subject to neither transfers order from political bodies nor censure debate. And the justices are not appointed directly by the people. On the contrary, the judiciary is held accountable by the reasons given to support its verdicts and by allowing public to criticize freely the verdicts.
It happens that clashes of power exercise occur between the legislature and the judiciary or between the executive and the judiciary. For example, some legal instruments enacted by the legislature may "cancel" the verdicts of the court. A case in point happened in France, during the Algerian Crisis. President de Gaulle and his government pushed through legislation to provide for the establishment of a special military tribunal in its territory in Algeria. This happened just after the Supreme Administrative Court had revoked the decree for the establishment of the special military tribunal.
Concerning personal behaviouror corruption, the Judicial Commission is authorized to supervise issues and may propose a process of removal from office.
The impartiality of the judiciary and the objectivity of verdicts
The judiciary needs to stand impartial and be free of bias. In a trial, all parties must be given equal opportunity to present their case. If a judge happens to have any conflict of interest in the case she or he is going to consider, then the judge has to withdraw as in the Latin saying "Nemo in propria causajudex". Therefore, it is also proper that judges not "play" politics by taking any position in the government, take part in drafting the constitution or any legislation, etc. If they have already taken such roles, they should not resume their roles as judge since it is possible that in future, they might have to rule in cases related to the matters where they were once involved.
The impartiality of a judge is reflected by the objectivity of the verdict. The accompanying reasons are based on a deliberation of the facts of a case and related laws, not personal political preferences, religious beliefs, or personal tastes. Therefore, a verdict should not be basedon any predetermined stance, but on the facts as presented in order tocome to a conclusion. Even if there are those who disagree with a verdict, or the consequences of a verdict, the objectivity of the verdict and its accompanying reasons still command their acceptance.
Any verdict must have been filtered through ajudge's deep consideration of related laws. The verdict must enshrine legality, integrity and clarity of the law at the same time. That the verdict supports the legality of a law helps to justify and command respect for the law according to the principle of the rule of law accepted in a legal state. That the verdict supports the integrity and clarity of a law lends credibility and consistency to the legal system and helps an individual to determine if his or her action, or an actionby another, is lawful.
It can be difficult to strike abalance between the two matters, and it is likely that we have to choose to lean to one side. And a judge is required to provide reasons why a verdict is inclined toward legality of the law, and then propose ways to strengthen the integrity and clarity of the law. Otherwise, he must give reason why he is inclined toward preserving the integrity and clarity of a law and then proposes ways to strengthen its legality. Therefore, any verdict that cites retro spective laws to incriminate an individual without sufficient legal reason is considered lacking in standards and unreasonable.
Trust in the judiciary by society
The credibility of and faith in the court, individually and organizationally, does not stem from the provisions regarding "contempt of court" or by claiming that judgments are delivered in the name of "His Majesty". On the contrary, it is brought about by the reasonableness of the reasons accompanying the verdict, its objectivity, independence, and the impartial and bias-free etiquette of the judge.
Apart from its legal compulsion, a verdict will be meaningful when it garners credibility from the people. Of course, it is not possible that all people will agree with the entire contents of a verdict. But once a verdict is subject to theview of knowledgeable persons, it should at least convince them as a standard verdict.
To garner credibility from society, it is not necessary that a judge to make heror himself popular in public. It does not mean that a judge, in order to please the public, must agree to breaches of the law or her own conscience. It does not mean that a judge should heed the majority in society to deliver a verdict. This is called "Popularité" rather than"Confiance". Trust must stem from the independence, impartiality, fairness and respect for ethics of the judge.
In addition, the credibility of a judge also comes from her or his behaviour, i.e., by knowing the scope and limits of one's power, by accepting possibility of error, and humility. Judges shall not take pride in the "crown"given to them or by simply claiming to work on behalf of the King.
Recognition of the limits of power
As a democratic and legalstate demands separation of powers to provide for a balance of power among its branches, the judiciary must realize that it is designated with "passive power". It has no extensive power to dominate the executive. On the contrary, the court can adjudicate only when a caseis initiated by concerned parties. It is not authorized to initiate a case by itself.
This adjudication cannot be carried out recklessly and without rules. Before the case reaches the court, it has to pass through due process; for example, it has to be considered if the plain tiffs have the right tosue, if they are stake holders in the case, if the prosecution has been carried out properly, if the prosecution takes place within its remit, if the case falls under the jurisdiction of the court, etc. Then a fairtrial can ensue. Eventually, when the verdict is delivered, it must be considered if it applies to all parties in general, or just the concerned parties. Will it have an impact retrospectively or in future or not?
It is undeniable that the judiciary is an active player in state politics. However, its political manoeuvring should be conducted through its verdicts and governed by the raison d'être of the law. Even if the judiciary intervenes in politics through its verdicts, it needs to keep in mind the principle of the separation of powers and the balance of powers. Particularly on issues deeply related to the policy of the governmentor purely political issues, interventions made by the judiciary must be carried out prudently and carefully such as in the cases of house dissolution, declaration of war, or appointment of a Prime Minister or Minister.
In certain cases, when policies have been raised during a campaign, the government, once elected in power, has to deliver on the promises. In this case, the judiciary may simply intervene to check the "legality"of the measures based on such policies. It is improper to touch on the"appropriateness" of the policies. In other word, the judiciary must play by the rule of "law".
Eventhough the judiciary is mandated to control the legislative and the executive branches and to adjudicate the final resolution (res judicata), it cannot exercise its power without limits. Given its independent nature,the judiciary tends to distance itself from the mass and society. But it has power to control the executive. Therefore, the legal system and legal procedures must be designed so as to prevent the judiciary from exercising reckless power. At the same time, the judiciary itself should restrain its power to avoid infringing on the policy orpolitical realms.
Here are the basic principles in a liberal democracy. So-called "judicialization" cannot be cited to justify intervention by the judiciary in the political realm, such as in constitutional drafting, holding positions in interim bodies set up specifically to purge some enemy, and appointing to important positions.
Legally, a verdict may have a binding effect either of the concerned parties, or all legal enforcement officers. But in reality, a verdict may have awider impact, directly and indirectly, particularly on the enforcement and interpretation of laws to transform the abstract into concrete.
Legal provisions upholding rights and liberties or setting guidelines for theexercise of executive power are often written in broad terms to allow the court to interpret the texts on a case by case basis. A verdict made reflects how the law is applied and interpreted to "translate and explicate" the meaning of the law to bear concrete and tangible results. After a series of adjudications on the same or similar matters, a standard is set for certain types of cases. Except when a judge has sound reasons to believe otherwise, or if circumstances change significantly, then the judge may consider deviating from the standard. Therefore, among those from the realism school of law, Oliver Wendell Holmes even declared that "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law"
The impact of the application and interpretation of the law by the court does not affect just particular cases. Therefore, a verdict shall not be made to solely serve the purpose of the judge or the concerned parties. On the contrary, it should be made as a "mutual communication between the judiciary and society".
As part of the democratic system, a judge must realize that he or she does not write a verdict just to explain and expound reasons to the conflicting parties, but to the general public as well. A good verdict must help to educate society and stimulate more studies, constructive criticism and debate among lawyers and the general public. If there are loopholes in an applicable law, the verdict shall point to those shortcomings and propose the correction or revocation of the law.
A "public" verdict is therefore composed of two major components. First, it must be made accessible. After a verdict is read to the parties, it should be disclosed to public view and subject to criticism. Secondly, the judge must bear inmind that by writing the verdict, she or he can help to enhance communication between the judiciary and the public. It should not be written merely for the sake of ending the matter.
Humble acceptance of criticism
Naturally, to ensure its independence, the judiciary is made into a closed system and has little contact with the public compared to other parts of the state apparatus. However, that characteristic can easily make the judiciary a "twilight zone". To avoid this problem, a system of criticism of the court's function should be provided for. In other words, criticism of verdicts should be allowed.
The self-oriented nature of judges and their claim to work in the name of the King, supported by the words and moral support of the King, become an impediment and do not help to support criticism of verdicts. As a result, judges may become"indulged" in their power and ignore society, caring nothing for input from other social organizations. For example, the reservation on a verdict may be available exclusively to the judge, the lawyers, or the parties in the case. Or an attempt may be made to create a myth that a verdict is a matter of law and only among lawyers can it be understood. All these notions reinforce a narrow view held among lawyers that lawyers are the dominant power in the world and lead to mono polization of "truth" in the name of law.
By allowing concerned parties in the legal field, the media and the general public to criticize constrictively and debate verdicts, verdicts and judges shall gain credibility. This also helps to uphold the legitimacy of democracy, verdicts and judges as well. Public criticism can help to strengthen the democratic process leading it toward a ‘consultative democracy" which is becoming more popular and accepted as an extension to "direct democracy", "representative democracy" and "participatory democracy".
Therefore, the "use" or the "threat to use" the provisions on "contempt of court" is obsolete and impedes democratization of the judiciary.
In a liberal democraticstate, the judiciary has four major obligations including settling disputes, checking legality, creating the rule of law through the application and interpretation of law to deliver a verdict, and being a player in state politics. To accomplish these four obligations, the basic principles of a liberal democratic state must be upheld along with the principles of a legal state and democracy.
The six proposals above should help the judiciary to perform its duties incompliance with the principles of a legal state and democracy. It is not intended here to reject progressive adjudication. But such progressive adjudication should be based on objectivity and reasons, sound legal foundations and with reasons that command acceptance from public. The judiciary should be brave enough to disallow unlawful power and coups. It should not hesitate to make a decision to unravel a "crisis" based on prudent consideration and the conscience of judges and by based on the law. It should not make decisions that are"claimed" to be progressive to address a "crisis". It should not act just on the urge of some individuals or be compelled to work in order to purge ideological enemies.
In alegal state, the principle of the control of the legislature and the executive by the judiciary and the independence of the judiciary are indispensable. But these principles are not the most meaningful ordominate other principles. And the judiciary should not be allowed to have over arching power with no checks or balances. On the contrary, allthese principles must be implemented simply to serve the most meaningful principles as a legal state and democracy. In other words, the power and independence bestowed on the judiciary by a legal stateis meant to be used to protect the legal state and democracy, not the destruction of a legal state and democracy.
It shall not be forgotten that judiciary does not stand above democracy, but is part of the democratic system just like other organizations. Thus, it is obliged to perform its duties in compliance with those of alegal state and democracy and should always bear in mind that it is simply part of the democratic system. To survive in a modern society, the judiciary has no other way but to uphold democracy. That will justify its role in checking the exercise of power by the government.
But if the judiciary performs its duties with bias and attempts to intimidate criticism against itself, or devotes itself to serve the purpose of purging someone's enemies, its credibility will decline and eventually no one will accept verdicts delivered by the court.
If that happens, apart from failing to uphold the obligation to protect the legal state and democracy, the judiciary itself will simply be the destroyer of the legal state and democracy.
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