NORDIC SYMPOSIUM ON HUMAN RIGHTS
4-6 May 2006
Åbo Akademi University, Institute for Human Rights
The theme of this panel is broad and could be approached from different angles. I have chosen to raise a few points on issues that are classic but nevertheless topical at least in our country. The observations I intend to make illustrate that the fundamental issues are indeed evergreens, and that there is a need for permanent vigilance, even in times of apparent calm and prosperity, with a view to the protection and preservation of sound institutional structures, practices and cultures. For the rule of law is not only a matter of constitutional principles or institutional structures, it is in the end also a matter of culture.
On the role of the judiciary
In all these respects, the role of the courts and the judiciary is fundamental. When we talk about these matters, it is important to bear in mind not only the direct role of the courts in concrete cases that actually come before them, but also the indirect impact arising from the existence of a functioning judicial system on the maintenance of respect for law in general. Even today, anyone who cares can easily learn to appreciate the importance of the direct as well as the indirect outcomes of a properly functioning judicial system by having a look at societies where such a system is missing.
Many developed countries have reached an economic, social and political situation characterized by relatively high stability and prosperity, and have developed their legal systems to a standard that is relatively well adjusted to the needs of modern society. Under such conditions, it is obvious that even the courts are relieved from the kind of extreme or exceptional burdens and pressures that can arise under circumstances of great conflict or upheaval. In that sense the role of courts in times of relative stability is less difficult and arduous than it may be in times of crisis. Still, it is fair to say that the tasks of courts in contemporary societies have generally become increasingly demanding: legal and factual issues have become more and more complex, the sources of law more multi-layered and intricate, the requirements of procedural fairness more and more exacting, and the general expectations that parties and the public have vis-à-vis the courts have grown higher.
On the legitimacy of the judiciary
Since access to justice through the courts is one of the basic human rights requirements in democratic systems under the rule of law, the legitimacy of judicial functions needs no further justification or discussion in this context. As regards the legitimacy of the judiciary in its function, it rests essentially on four pillars:
1)Independence. Judicial independence comprises individual or decisional independence of judges on the one hand, and institutional independence on the other hand. In a wide sense it also comprises the personal integrity and impartiality of judges.
2)The ability of the judiciary to perform its tasks. This ability presupposes independence, but apart from that it depends on factors such as professional competence, on the soundness of the systemic framework (court organization and procedures), on the adequacy of resources provided, as well as on proper accountability under a system that is effective while preserving independence.
3)Separation of powers is a foundation for the judiciary’s independence and thus also its ability to perform its tasks, but formal separation of powers is not sufficient by itself. What is required, thirdly, is a culture of respect for the rule of law, and of mutual respect within the branches of government for the respective roles and functions of each branch.
4)Public awareness and perception of how the judiciary functions.
All of these factors are interlinked. Formal independence will not ensure legitimacy unless the judiciary is free from corruption and other forms of misbehaviour. A judge who is independent but dumb or otherwise incompetent is no good. A formally independent judiciary is not robust if other branches of government undermine its position by interfering unduly or by failing to provide a proper organization or financing for the judicial system. For instance, in recent times we have seen fairly dramatic examples both in Europe and in North America of politicians criticizing the judiciary in strong terms for doing what they are supposed to do, i.e. for upholding and enforcing the law as it stands even in circumstances where this may seem inconvenient or undesirable from a popular or political point of view. Furthermore, it is always easier to legislate and add demands on the courts than to provide the courts with required resources. And even if the system functions as it should, it may not have an image of high legitimacy unless the public is well enough informed to understand what the courts do, and why and how.
In this introduction I will further discuss only some elements of the first three pillars, namely independence, performance, culture, and the links between them.
Independence
Independence is a necessary prerequisite for a properly functioning court system. It is also crucial for the legitimacy of the judicial system. Unless the judiciary is independent from the political branches of government it can neither fulfil its tasks nor sustain the confidence of the public.
If individuals didn’t have access to independent courts for the enforcement of their rights, it would be easy for the political branches of government to provide rights on the statute books while diluting or disregarding them in practice. The function of courts in controlling the exercise of regulatory or administrative powers would be illusory unless the judiciary were independent. Indeed, it has been said that judicial independence is the most essential characteristic of a free society. The reason behind this is that only independent judges can preserve and protect the rights of people.
As already mentioned, the first basic element of judicial independence is the independence of individual judges, often referred to as decisional independence. Individual independence is guaranteed by the appointment procedure and, above all, by the guarantees of life tenure and right to remain in office. These guarantees for individual judges also form the basis of decisional independence for the judiciary as a whole. In this context I will not dwell more on this aspect of independence.
Institutional independence is a somewhat broader concept. It involves matters that affect the operation of the judicial system as a whole, i.e. as one branch of the constitutional structure of government. The arrangements regarding institutional independence vary. Generally, however, the institutional independence of the judiciary has at least one weak point, namely the fact that the resources available to the courts are determined by the other branches of government, i.e. by the executive and/or by parliament. This inherent weak point exists in all legal systems, because all government expenditure must ultimately be in the hands of parliament.
The particular arrangements for decisions concerning the funding of the courts vary. The manner in which the decision-making process is organized can, however, have a major impact on whether the weak point is just a potential one, i.e. an inevitable structural feature despite which the institutional independence and the proper functioning of the judicial system are preserved and safeguarded, or whether it is real weakness and thus an actual threat to the institutional independence of the judiciary.
That the budget process and its organization are of great importance is well illustrated by the present situation in this country. I will come back to this in a moment.
Ability to perform tasks
How well courts perform their tasks is of course vital for the legitimacy of the judiciary. In this regard, an important dilemma exists. This dilemma has to do with the Achilles’ heel I have just mentioned: the people’s rights are supposed to be protected by independent courts, but, however, in the end the ability of the courts to protect the people does not depend on the courts themselves but on the other branches of government, from which the courts ought to be independent.
The European Convention on Human Rights obliges the contracting states to provide 1) access to justice through independent and impartial courts, 2) due and fair process, and 3) final adjudication within reasonable time. The UN International Covenant on Political and Civil Rights imposes similar obligations. In Finland, like in many other contracting states, both conventions have been incorporated in the domestic legal order. Furthermore, in this country corresponding norms have also been included in the national constitutional provisions on fundamental rights.
This means that critical performance requirements for the courts are laid down by way of constitutional and/or legally binding international guarantees. At the same time, however, the ability of the court system to fulfil these requirements depends not only on matters that are under the control of the courts themselves. This ability also depends quite heavily on how the judicial system is organized and whether or not sufficient resources are available to it. These matters in turn are under the control of the other branches of government, i.e. the executive branch and parliament. Thus, while an independent judiciary is charged with the task of providing access to justice and due process, the judiciary is far from autonomous in this task because it doesn’t control the means that are necessary for its fulfilment. Justice delayed is justice denied, as a pertinent old saying puts it. Justice should be in the hands of an independent judiciary, but in reality it is not, to the extent that its shortcomings result from systemic deficiencies or inadequate resources.
In fact, there is an imbalance, and a potentially serious one, in a system where constitutional norms protect individual rights regarding access to justice and due process within reasonable time but fail to protect the availability of resources necessary for the judiciary to provide the kind of justice that is required.
As far as the guarantee of access to justice and due process within reasonable time as provided in Article 6 of the ECHR, the European Court of Human Rights has consistently emphasized that this Article entails an obligation on the contracting states to organize and maintain a judicial system that is capable of meeting the requirements of this Article. Lack of resources is not a valid excuse for a failure to comply with Article 6. Thus, the Strasbourg court links the individual’s rights under Article 6 with a corresponding duty of states to provide and finance a system that is adequate to make those rights true: these “systemic obligations” are derived from Article 6 as a sort of corollary of the rights granted to individuals. This is also in line with the general tenet of the European Court according to which the purpose of the Convention is to guarantee rights that are not theoretical or illusory but real and effective.
At the national lever, however, the situation appears not to be quite the same. Article 21 of the Finnish constitution provides a fundamental right very similar to Article 6. In connection with the passage through Parliament of the reform bill on fundamental rights in 1994, the Parliament’s Constitutional Committee did write down a statement to the effect that the provisions on fundamental rights must also be taken into account in the exercise of the Parliament’s budgetary powers .
In reality, however, there is no sign at least so far that the executive branch would acknowledge the requirements of Article 21 as a binding consideration or constraint in the budgetary process, when it comes to the funding of the court system.
Neither the newly reformed budget law nor the practice of its application indicate in any way that the special institutional role of the courts as the third branch of government, or the tasks enshrined for it in the constitution, would have some bearing on how the judicial system should be treated in terms of funding. On the contrary, current developments illustrate the opposite. As far as the budget process and the allocation of resources are concerned, the courts are treated like any ordinary government agency. Court budgets are reduced without regard for their impact on the fulfilment of the constitutional or human rights guarantees on access to justice. The courts are even expected to justify their existence and activities by explaining what they accomplish in terms of societal outcomes.
It is of course normal that the government is looking for ways to cut down on expenditure and that the judicial system cannot remain immune to such ambitions. If, however, the ability of the courts to provide justice in accordance with the requirements of Article 21 were acknowledged as a binding or even guiding principle when it comes to the funding of the courts, then clearly the way to proceed would be to start by implementing structural reforms in order to reorganize and rationalize the court system so as to increase its efficiency and make room for staff reductions and other savings. But this is not what is happening at present. Instead, the government is proceeding the other way around. It has decided on major reductions in the funding of the courts and fixed concrete targets for a permanent reduction of staff within the court system, whereas decisions or even concrete plans on how to make such reductions possible without jeopardizing the ability of the system to deliver justice in accordance with the applicable constitutional and human rights standards are largely missing. Yet the fact is that the courts do not regulate themselves: the organization of the framework for the justice system is and remains the responsibility of the executive and legislative branches.
In other words, we do have a constitution that protects the people so that they be protected by the courts. But it seems at the moment that what we don’t have is a constitution that would protect the courts so that they were in fact able to protect the people as promised. It remains to be seen whether or not the parliamentary guardians of our constitution will find that there is something wrong with this situation.
It seems reasonable to pose the question: To what extent are such lopsided practices - where the system purports to protect the individuals’ rights regarding access to justice, without protecting the adequacy of means available to the courts to deliver such justice - compatible with the requirements of genuine respect for rule of law? To what extent are they compatible with the requirements of institutional independence for the judiciary?
The need for a culture of rule of law and mutual respect between the branches of government for their respective roles and functions
What I have said so far highlights the fact that even in a constitutional system based on the principles of separation of powers and of judicial independence, essential matters affecting the ability of the judiciary to perform its functions and thus its legitimacy are not in the hands of the judiciary itself but in the hands of the other branches of government.
Therefore, what is essential with a view to the real ability of the judiciary to deliver justice properly is the concrete manner in which the central administration of the court system and the budgetary process are organised.
At some level, however, problems and tensions are inherent in any system, because under a separation of powers the judiciary will always depend on the other branches of government for its funding. What is also essential, therefore, is that apart from formal constitutional and institutional structures there must exist a culture of respect for the rule of law, and as a corollary of that a culture of mutual respect between the branches of government for their respective functions and roles. Without such a culture of respect, the executive may indeed disregard the need to build up a sound and efficient system first and secure savings then. Instead, they may risk undermining the justice system by withdrawing funding first and fail to ensure that the system remains capable of living up to the standards that apply.
At the same time, of course, the judiciary in turn must respect the role of the political branches of government and not overstep the boundaries of its own legitimate tasks. That, however, is a matter for a separate discussion that I will leave aside for the moment.
I started by pointing out that one of the functions of an independent judiciary is to make sure that the political branches of government do not enjoy a freedom of making promises that need not be kept, that is to say by providing rights that need not be enforced. Unfortunately, however, we can see that the same problem may well turn up at another level, namely when access to justice is promised to people as a fundamental right but the court system is not organised or financed in such a way as to enable the courts to live up to that promise. Under such circumstances, the legitimacy of the judiciary is bound to decline, regardless of the fact that the judiciary can neither regulate itself nor ensure its own financing and is therefore not in a position to prevent such a situation from arising.
The political branches of government do like to keep up an image as champions of the rule of law, of human rights, fundamental rights and other good things. They would do well to bear in mind that it is impossible in these matters to be a model on paper or in rhetoric alone. It takes both money and culture to create and maintain a system that earns and merits real legitimacy, let alone the credentials to be a model for others.
In conclusion, the judiciary can ultimately enjoy a high legitimacy only if its particular role and function in the constitutional system is understood, acknowledged and taken seriously by the political branches of government - including that part of the executive that consists of the Ministry of Finance. The judiciary in turn must accept the need for changes and make all the necessary effort to keep up with the times and adapt to the requirements of the day. The judiciary cannot be opposed to change and efficiency, on the contrary. What the judiciary is opposed to is the kind of change that consists of making budget cuts, which is easy, while failing to make necessary changes in the framework system, which is hard.
Ladies and gentlemen – we the speakers at this symposium have been encouraged by the organizers to be original. I am quite aware that I certainly have failed in this. My remarks have not been original – just the opposite. This intervention has only demonstrated that the old and fundamental issues are indeed evergreens. The only astonishing thing is, perhaps, that this can be true even in a so-called highly developed country as this one.
16.05.2006