Governance of the judiciary has long been marked by a level of public impenetrability that is reinforced by judicial independence. However, the institution is also premised on a political criterion: upholding public confidence. Given this, what happens when judges are alleged to have failed to meet their duties? Judicial complaints and discipline processes may be triggered, involving review of potential misconduct and perhaps recommendation or imposition of a remedy up to and including removal. The shape such processes take varies around the world. What if any commonalities might there be among jurisdictions given each presents a unique socio-legal context, including different dominant or clashing political agendas informing the design and implementation of judicial disciplinary procedures?
In Canada, regulation of judicial conduct is divided on federalism lines. A single entity, the Canadian Judicial Council [CJC], is empowered to oversee the conduct of federally-appointed judges (i.e., those who sit on Canada’s provincial and federal superior courts) while a set of similarly-constituted bodies are dedicated to oversight of provincially-appointed judges. The most powerful and active of these entities is the federal body, the CJC, comprised of the Chief Justices and Associate Chief Justices of the provincial and federal superior courts and chaired by the Chief Justice of Canada. The CJC is tasked with receiving, investigating, and adjudicating complaints about superior court judges and recommending removal, if warranted, to Canada’s Parliament. While it has enjoyed relative invisibility for most of its 50-year tenure, its decisions and actions over the past decade in a set of high-profile cases – including cases in which racial and/or gender bias has been alleged of judges and even the CJC itself, and cases in which judges have effectively run out the clock by repeated publicly-funded judicial reviews until reaching retirement age — have incited increasing public controversy and criticism.
Prior to the recent re-election of Canada’s Liberal government, Bill S-5 had been introduced in the Senate with the objective of reforming the CJC’s powers and procedures. The bill will likely soon be reintroduced. However, even with reforms on the horizon, concerns will likely remain because the problems with the CJC run deep. In short, Canada’s judicial discipline process illustrates the difficulties of instituting and implementing an effective and efficient procedure that protects the judiciary from corrosive undue attack at both individual and institutional levels while also protecting the public interest in ensuring that the judiciary is transparent and accountable. Canada is not the only country grappling with such challenges.
We note that most of the existing literature on judicial discipline is centered on the conundrum of “balancing” judicial independence and accountability. Disciplining Judges: Contemporary Challenges and Controversies, however, seeks a comparative perspective on the values and techniques engaged in judicial discipline processes and how such structures speak to the larger political order within which judges operate. Judicial discipline processes serve as indicators of a nation’s public law regime and offer a window into that nation’s politics of legitimacy – typically, a story about institutional jostling among executive, legislative, and judicial branches seeking to gain or maintain legitimacy and power. In a word, judicial discipline is an expression of statecraft. In putting together this volume, we sought international scholars from thirteen different jurisdictions (Australia, Canada, China, Croatia, England and Wales, India, Italy, Japan, the Netherlands, Nigeria, Poland, South Africa, and the United States) to assist in the task of identifying key challenges and values informing judicial discipline processes. The point of the exercise was not to establish a universal set of best practices, but rather, to give careful attention to each jurisdiction’s unique context with a view to identifying whether or how even radically different regimes may be said to manifest or pursue a common set of regulatory values.
Our introductory chapter begins with the importance of shifting the guiding question behind judicial discipline processes from ‘who guards the guardians’ to ‘how to guard the guardians?’ This is necessary in order to identify broader issues at play in each regime. We argue that systems for disciplining judicial conduct must reflect certain general principles, (we suggest eight: independence, accountability, impartiality, fairness, transparency, representativeness, proportionality and efficiency), although there is room for context-specific norms in any mechanism. Indeed, judicial discipline bodies do not constitute themselves based on the legal or political culture of any single jurisdiction alone. An array of international norms also informs the values and procedures that over time have come to constitute, or partially-constitute, the “core” of judicial discipline. The salience of these international norms is especially felt — and increasingly fraught — in countries such as Poland where the judiciary faces grave threats both overt and covert from political regimes.
International variation is also present, as the various contributions to the volume attest — for instance, as regards the legal basis for judicial discipline processes. Some regimes are codified in a constitution, or function through unwritten constitutional principles. However, such foundations may be too rigid, too abstract, or both to guide institutional design over successive periods of political and social change. Other jurisdictions use legislation to set out disciplinary procedures, but these may once again suffer from a lack of detail. Most disciplinary bodies take shape in regulations and/or policies, designed through processes controlled by a small elite.
Judicial independence is often painted as an institutional necessity, but it is by no means straightforward or unitary when it comes to the ways diverse jurisdictions conceive and institute this principle in judicial complaints and discipline regimes. The potential benefits and disadvantages of layperson participation, and concerns about both individual and collective/institutional independence, add nuance to this principle. Often cited as in fundamental tension with independence is judicial accountability. However, an appreciation of the meaning and mechanisms of accountability requires careful examination of how, in any particular political and legal context, the institutional forum for overseeing judicial conduct is constituted and the procedural and substantive limits that forum is subject to. For instance, such a body must be impartial. But just how this and other fairness guarantees as notice, disclosure and reasoned justification are constructed and apportioned, respectively, as duties owed to judge and complainant, may be understood only through attention to a specific legal, political and institutional context.
Judicial discipline processes in certain countries are moving towards requiring more transparent processes to bolster public confidence in the system. The involvement of laypersons in the process is following a similar trajectory. Further, the proportionality of disciplinary sanctions has in many jurisdictions become a matter of increased institutional scrutiny. Sanctions may be mandated by codified prescriptions or function via the discretion of the disciplinary body. Some countries regularly utilize various informal processes and sanctions to regulate judicial misconduct, which may enhance efficiency and potentially also proportionality, but pulls against transparency. Efficiency is essential to the design and operation of all public institutions and yet is often in tension with other substantive and procedural norms.
Identifying common values comes paired with exploration of common challenges. Designing — and informing the judiciary and the public about — standards of judicial conduct is no easy task. General standards can create a lack of clarity concerning what exactly constitutes misconduct, while increased specificity inhibits flexibility. In terms of the procedures themselves, the complaint filtering process is seen as necessary to eliminate malicious or baseless claims. Yet concerns remain regarding how such complaints are screened out, the interests prioritized by such a mechanism, and what if any information the complainant is entitled to when this occurs. There are clear tensions between the transparency and justification required to instill public confidence and the goals of system efficiency and protecting judges from undue reputational and institutional attack — but a pronounced shift toward increased transparency has occurred. Alongside this, laypersons may enhance judicial discipline processes by bringing in additional perspectives and otherwise increasing legitimacy. However, barring limitations which run the risk of mere tokenism, such a shift may place judicial independence in jeopardy.
Finally, the overall effectiveness of the disciplinary process may be subject to criticism. Judicial discipline processes are expected to be efficient in terms of time and cost while fulfilling their institutional goals, but this is a tall order. In terms of outcomes, while there is international convergence regarding the remedies that should be available to deal with misconduct, some jurisdictions adopt processes whereby the only formal sanction is removal (or, as in Canada, a recommendation thereof, to be decided, ultimately, by Parliament), while others provide a variety of options. The disciplinary body’s jurisdiction over judges who have retired or resigned is also a matter that distinguishes regimes and provides a basis for inter-jurisdictional reflection.
Such an inquiry has allowed the authors involved in this project and their readership to gain a comparative perspective on the operation and aspirations of judicial disciplinary processes worldwide. The text is not an all-encompassing inquiry into judicial disciplinary processes; it rather serves to begin mapping the rich field of comparative possibilities for this subject. It is our hope that this study will foster further and deeper conversations and academic inquiry into the inherently political nature of these bodies and their role in a jurisdiction’s constitutional landscape.
Posted by Professor Richard Devlin (Dalhousie University) & Sheila Wildeman (Dalhousie University)
British Association of Comparative Law 