Thursday, August 8, 2013

FDA Talking Points Series--Judiciary Independence

2013 U.S. Supreme Court. Supreme Court Justices Alito, Scalia, Kennedy, Thomas, and Robers were appointed by Republican Presidents. Supreme Court Justices Ginsburg, Breyer, Sotomayor, and Kagan were appointed by Democrat Presidents. Assuming that these appointments are partisan in nature, the U.S Supreme Court as a body is titled to the Republican ideology. The FDA believes that the presidential appointment process of the U.S. Supreme Court Justices influences the direction of the court, and thereby erodes some of its independence.
The Foundation for Democratic Advancement (FDA) believes that an independent and neutral judicial branch of government is an important check and balance on the executive and legislative branches of government. Check and balance by the judiciary encompasses issues of constitutionality and enforcement of law, and this check and balance may be initiated by the judiciary itself or through citizen constitutional and legislative laws suits filed against the government, organizations, and individuals. Although in many western countries the leadership of the majority or minority party in power appoints justices to vacancies of the Supreme Court, the Court is independent in its decision-making. However, these appointments which are likely partisan in nature influence indirectly the decisions of the Supreme Court, and thereby weaken its independence. One way around this appointment process is to allow a citizen committee representing a cross-section of society and the regions of a country to appoint the Supreme Court vacancies subject that the appointments have adequate legal educational, professional, and character backgrounds. 

In its electoral fairness audits, the FDA looks for constitutional and legislative evidence of the independence of the judicial branch of government. A main requirement for independence is that no one is above the law of the land, and a main requirement for check and balance is that Supreme Court has authority and power to veto executive decisions and legislation which violates the constitution and laws of the country. Note, an independent judiciary is only one main check and balance on government bodies. In addition, a weak electoral system will likely impact the appointments to a Supreme Court by making them less representative of the people's voice.

Country Comparison

CANADA

Canada's federal judiciary has jurisdiction over appellate review in criminal and civil matters, controversies between provinces and the federal government, and questions of law or fact pertaining to the Constitution of 1867 and constitutionality of federal and provincial legislation and the exercise of powers by the Parliament. There are no mechanisms to remove a Supreme Court Judge barring illegal acts and reaching the age 75-years old. However, Superior, District, and County court judges can be removed by Governor General on advise of the Senate and House of Commons.

The Canadian Governor General is a ceremonial appointment of the Prime Minister. So the majority of the House of Commons with advise from the unelected Senate determines whether or not Superior, District, and County court judges are removed.

The Supreme Court judges, when vacancies occur, are appointed by the Prime Minister and Cabinet. The Prime Minister determines the Cabinet, so in essence, the Prime Minister determines the Supreme Court judges. The Prime Minister is partisan to a particular party, and therefore, his or her appointments are partisan as well.

The independence of the Canadian Supreme Court is indirectly weakened by partisan appointments, because they influence the outcomes of the Supreme Court cases. Superior, District, and County judges are weakened similarly, and further weakened, by the power of the majority of the Parliament to remove them.

Similar to Canadian elected officials, the federal judiciary is tied to the federal electoral system, and its level of equality and fairness. The less fair the electoral system, less legitimate will be the federal elected officials and the judiciary. In 2013, the FDA completed a electoral fairness audit of the Canadian federal electoral in which Canada received an unsatisfactory score of 64.49 percent (out of 100 percent) (FDA Electoral Fairness Report on Canada, 2013). The FDA auditors identified significant electoral bias to large and established political parties. Further, the party or parties with control of the Parliament determine the federal election laws.

Legislative Research

Powers of the Judiciary

Has appellate review power in criminal and civil matters (Supreme Court Act, Section 35, 1985).

Hears controversies between provinces and the federal government (Supreme Court Act, Section 35.1).

Answer questions of law or fact provided to it by the Governor in Council related to the Constitution of 1867; constitutionality of federal or provincial legislation and the exercise of powers by Parliament (Supreme Court Act, Section 53(1)(a)-(d)).

Checks on the Judiciary

Superior, District, and County court judges are removable by the Governor General on the advice of the Senate and House of Commons (Constitution Act, Section 99, 1867).

Supreme Court Justices appointed by the Governor in Council – Prime Minister and Cabinet (Supreme Court Act, Section 4(2)).


UNITED STATES

The U.S. judiciary has jurisdiction over cases involving the U.S. Constitution, laws, and treaties under its authority. The President with advise and consent of the elected Senate appoint justices to the Supreme Court. Federal justices of both the superior and inferior courts are required to hold their offices during good behaviour.

Similar to Canada, the U.S. presidential appointment of Supreme Court justices detracts from the independence of the Court due to the partisan nature of the appointments. Also, the appointment process is tied to the federal electoral system due to the president being an elected office. The more fair and equitable the U.S. federal electoral system, the more legitimate will be the presidential appointments. In its 2012 U.S. electoral fairness audit, the FDA measured an unsatisfactory score of 54.5 percent (out of 100 percent) for the U.S. federal electoral system.

Legislative Research

The U.S. federal government is divided into three branches: legislative (comprised of Congress and Senate), presidency (executive), and judiciary (U.S. Constitution, 2012, Article I, Sections 1, 2, 3; Article II, Section 2; Article III, Section 2).

The U.S. House of Representatives and Senate have legislative power; the President has the executive power of government; the judiciary has power over cases involving the U.S. Constitution, laws, and treaties under its authority which entail cases affecting ambassadors, other public ministers and consuls, cases of admiralty and maritime jurisdiction, controversies the United States is part including between two or more states, between a state and citizen of another state, and between citizens of different states  (U.S Constitution, 2012, Article I, Sections 1; Article II, Section 2; Article III, Section 2).

Judges for both supreme and inferior courts shall hold their offices during good behaviour (U.S. Constitution, Article III, Section 1).

The President on advise and consent of the Senate shall appoint judges to the Supreme Court; the Congress may vest the appointment of inferior Judges  through establishment of law and may vest these appointments to the President alone (U.S. Constitution, Article II, Section 2).


VENEZUELA

Unlike Canada and the United States, Venezuela has a public component for the selection of justices to the Supreme Court. In addition, Venezuela has extensive checks and balances on justices such as process for misconduct and corruption and a single 12-year term for justices. In addition, to ensure the independence of Venezuelan courts and its justices, the Venezuelan state disallows justices from participating in partisan activities and gives the judiciary financial independence. Further, the Venezuelan Supreme Court has jurisdiction over constitutional law and enforcement of law, and it has the authority to determine whether or not the President of Republic should be impeached. Furthermore, indigenous peoples are given the opportunity at alternative justice processes, and the removal of justices for serious offenses must satisfy a two-thirds vote of the National Assembly.

The Venezuelan state limits the partisan nature of selections to the Supreme Court by allowing input by various organizations and the public, and with the National Assembly making the final selections.  

The Venezuelan judiciary processes exceeds the FDA standard for an independent and neutral judiciary by allowing public input on justice appointments and removal. Note, any system regardless of how sound it is may be subject to human misconduct. However, the more sound the system, the less likelihood of misconduct not be being detected and corrected. 

Legislative Research

The Venezuelan government has four main independent branches of government: National Executive, National Assembly, Judiciary, and Citizen Power (represented by an ombudsmen office). The National Executive lead by the President and Vice-President is in charge of running the country; the National Assembly is the authority of national legislation; the judiciary led by the Supreme Court is authority on the Constitution and enforcing law, and the Ombudsman Office is in charge of protecting the people’s interests and rights (Bolivarian Republic of Venezuela Constitution, Articles 72-74, 225-283, 347-350).

The Supreme Court of Justice has operational autonomy and financial management. The state must allocate funds to the judiciary not less than 2 percent of the state budget. The judiciary is disallowed from establishing rates, fees, or requirements for payments (Bolivarian Republic of Venezuela Constitution, Article 254).

Admission and promotion of judges is through public competitions based capability and professional excellence, and selected by judges in the judicial circuits (Bolivarian Republic of Venezuela Constitution, Article 254).

Judges are personally liable for mistakes, breach of procedural rules, partiality, and crimes of bribery and malfeasance occurred in the performance of their duties (Bolivarian Republic of Venezuela Constitution, Article 255).

In order to ensure impartiality and independence, judges are disallowed from being involved in partisan, union, and private non-profit activities, and cannot associate with each other (Bolivarian Republic of Venezuela Constitution, Article 256).

Justice of the peace in communities are elected by universal, direct, and secret suffrage (Bolivarian Republic of Venezuela Constitution, Article 258).

The Supreme Court and other courts have jurisdiction over administrative acts contrary to law (Bolivarian Republic of Venezuela Constitution, Article 259).

Authorities of indigenous habitat may apply for justice procedures according to their ancestral traditions involving only their members (Bolivarian Republic of Venezuela Constitution, Article 260).

Military criminal jurisdiction applies to crimes of a military nature; crimes against humanity and human rights violations are tried by the ordinary courts (Bolivarian Republic of Venezuela Constitution, Article 261).

Justices of the Supreme Court are required to be Venezuelan nationality by birth and not other nationality, be recognized socially with integrity, and be lawyer of recognized ability, reputation, have practiced law for at least 15 years or a professor or lecturer of law for at least 15 years (Bolivarian Republic of Venezuela Constitution, Article 262).

Justices to the Supreme Court are elected for a single term of 12-years. Candidates are proposed to the Judicial Nominations Committee on its own or by organizations involved in legal activity. The Committee after hearing the opinion of the public makes shortlist to the Citizen Power, which will then make another shortlist which will presented to the National Assembly. The Assembly will make the final selection. In addition, citizens may file objections to the Judicial Nominations Committee or to the National Assembly (Bolivarian Republic of Venezuela Constitution, Article 264).

The National Assembly may remove justices of the Supreme Court. A two-thirds vote is required, and following the person's or persons' participation in a hearing process through the Citizen Power for serious offenses (Bolivarian Republic of Venezuela Constitution, Article 265).

The Supreme Court has authority to determine whether or not there are grounds for the impeachment of the President of the Republic or his substitute. The National Assembly makes the final judgment (Bolivarian Republic of Venezuela Constitution, Article 266).
The Supreme Tribunal of Justice has jurisdiction over the governance and administration of the judiciary. The Tribunal is guided by the Code of Ethics of Venezuelan Judges and the National Assembly (Bolivarian Republic of Venezuela Constitution, Article 267).
The Judicial Nomination Committee advises the Citizen Power on on selection of candidates for justices of the Supreme Court. The Committee is comprised of representatives from different sectors of society (Bolivarian Republic of Venezuela Constitution, Article 270).


References

Bolivarian Republic of Venezuela Constitution. (2012). National Electoral Council. Retrieved from http://www.cne.gov.ve/web/normativa_electoral/constitucion/indice.php

Constitution Act. (1867, March 29). Retrieved from the Department of Justice http://laws-lois.justice.gc.ca/eng/Const/page-1.html

Constitution Act. (1982, April 17). Retrieved from the Department of Justice http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-38

FDA Global Electoral Fairness Report on the Canada. (2013). Foundation for Democratic Retrieved from http://www.slideshare.net/FDAdvancement/2013-can-fed-audit

FDA Global Electoral Fairness Report on the United States. (2012). Foundation for Democratic Retrieved from http://www.slideshare.net/FDAdvancement/united-statesfda-global-electoral-fairness-report

FDA Global Electoral Fairness Report on the Venezuela. (2012). Foundation for Democratic Retrieved fromhttp://www.slideshare.net/FDAdvancement/2012-fda-global-electoral-fairness-audit-of-the-venezuelan-presidential-electoral-system

Garvey, S. (2013). "FDA Talking Points Series: Checks and Balances". Foundation for Democratic Advancement. Retrieved from http://foundationfordemocraticadvancement.blogspot.ca/2013/04/fda-talking-points-series-checks-and.html

U.S. Constitution. (2012). Cornell University Law School. Retrieved from http://www.law.cornell.edu/constitution/







Mr. Stephen Garvey, Executive Director Foundation for Democratic Advancement


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