All branches of government have a stake in guaranteeing the independence of judges and courts, writes Justice Joseph Nadeau* I read with great interest the article by Judge Hesham El-Bastawisy entitled "Independence of the judiciary: Where are we heading?" in the last issue of Beyond. His concerns have universal application and his suggestions for change a deep impact on judicial independence. While I do not feel it appropriate for me to comment on his analysis of the Egyptian judicial system, or the status of the independence of its judiciary, I believe Judge El-Bastawisy describes many characteristics of an independent judiciary and raises several interesting points. Because judicial independence guarantees for all people fair and equal treatment in their courts, such independence helps to maintain a strong government and a vibrant economy. As Judge El-Bastawisy notes, however, the judicial branch must not only exercise decision making authority but must be given the power to administer the courts system and to manage its own budget. Judges should be assigned by the judicial branch to decide cases. Those assignments should be made by a random method to ensure there is no appearance of, or chance for, favouritism towards any party. Judges should be appointed on merit through a non-political process. Parliament should set the court's jurisdiction and determine its budget. The path to independence in any country, Western or Eastern, is through judicial education and self-discipline. It does not make any difference whether courts are based on common law or the civil code; education of judges is necessary to provide high quality service and to earn public confidence. The courts must be responsible for and in charge of judicial education programmes. Courts must develop a system for self- evaluation of judicial performance and create a judicial branch process to consider complaints against judges. A judicial process must exist to discipline judges who are not ethical or who fail to carry out their responsibilities. And it is very important for the judiciary to create a mechanism by which the judges in highest authority can respond publicly and quickly to unjust criticism and misinformation. If judges are to be independent, if they are to be given extraordinary power over the lives of other people, they must learn how to use that power with compassion, with restraint and with dignity. Judges must live up to the expectation that they act differently from other people, that they will be restrained in their personal lives, and be dignified in all their conduct. In short, there is a direct connection between justice in any society and the competence and integrity of judges. Judges must keep that connection strong every day and the other branches of government should assist by not interfering into the work of the courts. Establishing independence is not only a task for individual judges but also one for the other branches of government as well. The powers of the other branches do not deprive the courts of the right and responsibility to exercise essential functions. Independence and separation of powers requires the judiciary and every judge not just to refrain from interference with the other branches, but equally as important to accept and meet the responsibility and the affirmative obligation to assert and fully exercise judicial powers. So what must the other branches of government do to affirm the concept of the separation of powers and to strengthen the judiciary? While the judiciary must work hard to build and improve a strong and respected judicial system, the other branches of government must give them the tools to accomplish these goals. Working together, they must provide and maintain court buildings that are dignified, safe, comfortable and accessible for all who work and conduct business there. Courts must be authorised to hire and dismiss their own employees. The other branches must assure that court decisions will be enforced and respected. Leaders must recognise the importance of a strong and independent judiciary to a flourishing government. In constitutional government, presidents, legislators, politicians, and those who disagree deeply with court decisions still obey them. Decisions must be respected and honoured to guarantee law and order for everyone. To demonstrate independence, courts must operate efficiently by modern standards and be given the resources to do so. The executive and legislative branches must fund courts adequately and allow the judiciary to administer the funds. Courts must be given the means to make available to all judges decisions on the interpretation of laws and the resolution of disputes, and the ability to publish the decisions of supreme courts and constitutional courts. As Judge Hesham perceptively notes, meaningful reform not only buttresses the independence of the judiciary and contributes to the enforcement of accountability at all levels of government, it also reinforces the dignity of citizens. What is required, to effect reform, are individual acts of courage and resistance to interference in the judicial process from any source. Such courage will provide a strong and reliable judiciary today and for future generations. * The writer is a former judge of the New Hampshire Supreme Court.
