The first half of this article left off with an open question – what can be done differently this time in organizing the Judiciary branch of the Georgian Government to avoid the type of “elite corruption” witnessed in the last years of the UNM rule. To be clear, the reference here is made to the corruption caused by the political influence, by the Judges ending up not biting the hand that fed them.
One might say the independence of the Judiciary cannot be achieved without the members of the other two branches having a strong self-discipline and moral sense of what’s right. I would agree to this statement and view it as the expression of their political will. While they might demonstrate such a desire for the first few years of their governance it would be unnatural to expect them to sustain it. We can’t assume our elected officials will stay crystal pure over a long period of time; in fact the experience of many generations before us shows quite the contrary. Hearts of men are easily corrupted. Longer the most men and women are in the position of power more likely it is for human vices to chew off their integrity as moth slowly eating away an old coat. We can’t ignore this reality. We have to factor it in.
The cardinal goal then is to make sure the men and women interpreting the law for laymen are fully insulated from political turmoil. They will at times have to make unpopular decisions infuriating the masses or preventing the other two branches of the government to overstep themselves. On the other hand one could argue no matter how far the judges are stationed from the whims of politics they will eventually succumb to the follies of all men if left unchecked. Jefferson put it eloquently: “The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them”.
How do we consolidate these two opposing concerns? I put forward the following suggestion of amending the Constitution of Georgia:
- Supreme Court Judges should be appointed by the head of the executive branch (it seems like this is now PM’s office after the 2010 changes) with the Parliament’s approval. They should be appointed for life.
- Appeal Court Judges should be appointed in a similar way although the process might be relaxed a bit (e.g. they might need a simple parliamentary majority while Supreme Court Judges might need more than this). They should also be appointed for life.
- The Parliament should have a constitutional procedure for impeaching these high court Judges under extraordinary circumstances (e.g. Undeniable evidence presented in front of the Parliament). The process of impeachment should be complicated and designed to fail unless there’s true determination from the legislative body. The idea here is to give the Parliament a rein of sorts over Judiciary but a very slippery one.
- Regional Judges should be appointed. Supreme Court should oversee the process (I am not saying they should be intimately involved in the process, the logistics can be delegated). Regional Judges should be appointed for 24 years.
- This is the part of the suggestion that irks my lawyer friends the most – retention elections for regional justices. I believe they are the most influential to the lives of ordinary people. Most individuals never have to deal with higher courts while regional ones are the primary arbiters in their respective communities. They are the face of Justice in each region. As such the members of the community should have a say in keeping the officials bestowed upon them. This is not a political election. There are no multiple candidates assailing each other’s credibility trying to confuse the voters, this is not a popularity contest where the prettiest face rules the day. This is a vote of confidence.
- Large scale application of jury trials – these have been instituted for couple of years now but their usage has been very limited. It also seems unclear under what circumstances they are used. I believe it is every citizen’s right to request a fair trial by jury for serious charges (e.g. threatening to incarcerate them for 6 months or more). To me this right is fundamental and it should be spelled out in the Constitution.
One more comment regarding item 5 - retention elections is not some untested innovation. Almost half of US States use them. Naturally there are arguments for and against it. It would be impossible within the scope of this article to cover them all but here’s one fact I found very interesting – the opponents often state more than 90% of times the Judges get to keep their positions , then what’s the point of these elections? Well, wouldn't this be what one would expect? Retention elections are the tool of very last resort to be used very rarely.
The final note goes to the Constitutional Court of Georgia. I left it out on purpose. While I understand its purpose I have doubts about its constitution. I am also not sure why Supreme Court can’t or shan't do what these triage experts are supposed to do. Well, this might be a topic for another post.
Giorgi,
ReplyDeleteI agree with many things that you say – so, let me focus on the areas of where we might disagree:
1. This is not really a disagreement with you but rather my generally negative view of a parliamentary system. I do not think that a PM should nominate Supreme Court judges. The reasoning is that in a parliamentary system PM and parliament are pretty much one and the same (i.e. there is very little “checks and balances” between executive and legislative branches). You can get around this somewhat by requiring more than 50% majority for judge appointments – but I still think it’s less than ideal.
So, I would rather see judges appointed by a more independent power (e.g. independently elected president) – but this point is subsumed in that I think an independently elected president should be the head of the executive branch.
2. I would rather have all other judges be nominated by the Supreme Court and not PM or president. The reasoning for this is that I would want the influence of the executive branch on the judiciary to be as limited as possible. If judges are nominated by PM/president, those who want to become a judge would have to be on good terms with the executive branch (and might start “scoring” favors etc. for those who are in charge of their promotion). Having the Supreme Court nominate judges would create another degree of separation between the executive and judiciary branches. And who is better to judge the quality of the judges if not the judges themselves? In other words, if the Supreme Court is the body that nominates all other judges, the entire judiciary will be less influenced by whims of political parties
One counterargument that I can see is that dealing with judge nominations would create a significant burden on the Supreme Court. But I don’t think this would be an issue for Georgia. Looking at some statistics, it doesn’t seem like Georgia would need more than 250 – 500 judges. If judge terms are long – e.g. 20 years or so, this means 10 – 20 judge nominations per year. Surely this is a manageable number especially if most of the work will be done by Supreme Court staff and judges would just need to review potential candidates and vote on their nominations (i.e. if 5 out of 9 judges support a candidate, than this candidate would be nominated as a judge)
3. I agree that there needs to be a check against the judiciary to make sure the branch does not become all powerful – and, just as you, I think this check should come from the legislative branch. So, similar to you I would say that Supreme Court judges should be confirmed by the parliament (or w/e the legislative body is) by a more than simple majority. I would say something like 3/5 of the vote would be about the right percentage. I would say that all other regional and local judges should be confirmed by local legislative bodies (and not by the central parliament) to make sure that local population has a say on who gets appointed as their judge. So, I think this is pretty much the only difference with what you’ve written
ReplyDeleteOn removal of judges – I do agree that it should be a complicated procedure. I would say that judges should be impeached by 2/3 majority of the parliament and then tried by the Supreme Court (and removed from office if convicted). To ensure that Supreme Court does not have an unlimited leverage here, I would say that even Supreme Court’s decision can be challenged. For example, by a 4/5 majority the parliament should be able to override the Supreme Court and remove the judge in question
One other thing, just as you I think the local population should have the power to initiate the judge removal procedure. I would rather have the local legislative bodies have the ability to impeach regional and local judges, and then have the Supreme Court try them as opposed to retention elections you propose. My main concern with retention elections is that it would leave the judiciary vulnerable to special interests. Imagine, for example, if a single wealthy businessman does not like a particular judge in a local jurisdiction, they could start an un-official smear campaign against him/her a few months before the retention elections. This does not have to be a real campaign – so, the businessman would not be breaking any laws – just exercising his right of free speech. This would force the judge to respond perhaps with a campaign of his own – for which he would undoubtedly need to raise money. So, if the judge doesn’t respond he might become a victim of a special interest, and if he does respond he would be captured (at least to some extent) but other special interests. Yes, a similar thing could happen with a local parliament – but I think it would be a more difficult undertaking, and even if the local parliament does impeach a judge, the judge would still need to be tried by the Supreme Court
4. I would add a few other points to your list which I think will make the judiciary system more independent:
a. There must be a transparent way to set judge salaries and to ensure that these salaries are attractive enough for the best people in the legal profession to want to become a judge. The situation that is currently in the US where a person must take a massive paycut to become a judge (sometimes setting them back in salary terms 10 years) is unacceptable
b. I would propose a separation of prison and detention systems. This is to eliminate the influence of the executive branch over people who have been detained but not yet sentenced. In this scenario a person detained by the police (the executive branch) would be handed over to a detention body administered by the judiciary branch. The person would remain in the custody of the judiciary branch through the trial, and then, if sentenced to a prison term, would be handed back to the executive branch which would run the prisons
Regarding your points on retention elections - I think we agree on the principle that the locals should some mechanism to remove the Judge if they really commit to it. It should not be easy but doable. Whether this can be done via retention elections or by some sort of impeachment procedure by local governments might not be that crucial. In fact. different regions might decide on whatever approach they prefer. I would like to challenge your example though - if a special interest group in that locality does indeed decide to put some muscle in removing an unwanted Judge, would it not be as easy for them (if not easier) to corrupt the local officials into initiating an impeachment procedure? Or to turn the tables, if they want to retain a crooked Judge, would they not be able to exercise the same influence to stop the local government from acting? The advantage of a retention election in this case is that the locals have a specifically defined spot in time when they can register their vote of confidence. This is a two-sided blade - while direct democracies suffer from the syndrome of any mob possessing less collective IQ than its constituents (primary reason why Socrates frowned upon the Athenians Assembly) while indirect mechanisms of exercising public will are more susceptible to common corruption.
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