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The Judicial Function pp 159–180Cite as

Principles of Judicial Impartiality: Threats to the Independence and Impartiality of Judges

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Abstract

This Chapter, the first in Part IV, provides a theoretical framework for the subsequent discussion of threats to the independence and impartiality of judges. This Part marks a transition from a focus on ideals and archetypes to a recognition of imperfections of realisation of function and method that we expect to see manifest in the real world.

The genuine choices inherent in the judicial method means that judicial decisions can be criticised for impropriety, but not simple error. This makes the issues of judicial impropriety especially significant, rendering judicial decisions particularly vulnerable to external influences that may induce the judge to deviate from the proper judicial method. Such vulnerabilities can be protected against, if not entirely eliminated, by the adoption of mechanisms to ‘isolate’ the judge in decision-making. Underlying these mechanisms is the powerful ideal of a disinterested and impartial judge, holding in tension the objectivity of Justice Machine with the subjective humanity and responsiveness of Justice Solomon.

This Chapter develops these ideas of judicial impartiality, vulnerability, deviation and independence, arguing that they can only be properly understood by reference to the underlying judicial method and function. In doing so, I reframe familiar concepts of ‘judicial independence’ and ‘impartiality’ as concepts derived from and dependent upon the previously articulated judicial function and method. A circumstance or consideration will constitute a threat to judicial impartiality where: (1) it is capable of influencing the decision making of the judge; (2) that influence would be in a manner inconsistent with, and deviating from, the proper judicial decision-making processes; and (3) there are no reasons derived from the overarching judicial function that render it acceptable. In the remainder of this Part, I develop a broad taxonomy for the characterisation of both dispute-specific and structural threats to judicial impartiality. I then examine concrete mechanisms that can respond to these threats.

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Notes

  1. 1.

    Russell (2001), p. 1.

  2. 2.

    Stephen (1985), p. 529. Stephen compares ‘judicial independence’ in this regard to diffuse ideals such as ‘democratic governance’ and ‘the rule of law’.

  3. 3.

    Pimentel (2009), p. 4.

  4. 4.

    See Craig (2008), pp. 417–24, Wade and Forsyth (2009), pp. 380–94 Elliot (2011), pp. 292–320.

  5. 5.

    There is some discussion of the concept of impartiality with regards to jurisprudence, but that use is for the purposes of those related debates: see Raban (2003).

  6. 6.

    See Shetreet (1985), p. 595. This point is further elaborated below.

  7. 7.

    See the simple comparisons and acclamations in collections such as Shetreet and Deschênes (1985), pp. 7–380, Shetreet and Forsyth (2012), pt. v. As Seibert-Fohr notes, this literature too often reduces judicial independence to an issue of means rather than results: Seibert-Fohr (2010), pp. 9–10.

  8. 8.

    As Russell observes, there ‘is little agreement on just what this condition of judicial independence is’: Russell (2001), p. 1.

  9. 9.

    Marshall (1995), p. 7.

  10. 10.

    See Neudorf (2009), pp. 21–36.

  11. 11.

    Marshall (1995), p. 7.

  12. 12.

    For example, Deuteronomy 16:19 says, ‘[t]hou shalt not wrest judgment, thou shall not respect persons. Neither take a gift, for a gift doth blind the eyes of the wise, and pervert the words of the righteous.’

  13. 13.

    Marshall (1995), p. 7.

  14. 14.

    Holdsworth (1923), p. 564. See also Morgan (1997), p. 10.

  15. 15.

    Holdsworth (1923), pp. 546–7, 561–2.

  16. 16.

    Thus when Bracton stated that ‘the king must not be under man but under God and under the law, because law makes the king’ he was engaging in a constitutional discourse that began to incorporate ideas of judicial independence impartiality: Bracton (first published 1569, 1968 ed), p. 33. See also Prohibitions Del Roy (1608) 12 Co Rep 63, 1341.

  17. 17.

    Fortescue (first published 1616, 1949 ed), p. 127.

  18. 18.

    See Dr Bonham’s Case (1610) 8 Co Rep 114(a), 118a.

  19. 19.

    Hobbes, for example, recognised that ‘no man is fit Arbitrator in his own cause’ and for ‘the same reason no man in any Cause ought to be received for Arbitrator, to whom greater profit, or honour, or pleasure apparently ariseth out of the victory of one party, than of the other’: Hobbes (first published 1651, 1996 ed), p. 109.

  20. 20.

    Denham (2001), p. 33. It should be noted that the legislative protections for the judiciary against royal interference enacted at this time were not promulgated for philosophical reasons of judicial independence, but rather, as part of Parliamentary actions to curb royal power: ibid. p. 34. For a discussion of the history of judicial independence in England: see Marshall (1995), pp. 8–10.

  21. 21.

    Pimentel (2009), p. 9.

  22. 22.

    See Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, third sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) art 10; International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14(1).

  23. 23.

    See International Congress of Jurists, Report of Committee IV, New Delhi Conference (1959), quoted in Shetreet and Deschênes (1985), p. 494. This definition expressly recognised that the doctrine did not entitle the judge to act in an arbitrary manner. See also International Commission of Jurists, Conclusions of Committee III Lagos Conference (1961), reproduced in Shetreet and Deschênes (1985), p. 492.

  24. 24.

    See Syracuse Draft Principles on the Independence of the Judiciary (1981) (adopted by a Committee of Experts appointed by the International Association of Penal Law and the International Commission of Jurists on 25–9 May 1981), quoted in Shetreet and Deschênes (1985), p. 414 (emphasis added). For discussion: see Simon (1985), p. 422.

  25. 25.

    I would argue that the second limb represents a particular response to protect the ideal articulated in the first limb.

  26. 26.

    See Tokyo Principles on the Independence of the Judiciary in the LAWASIA Region (1982) (adopted by the LAWASIA Human Rights Standing Committee on 17–8 July 1982), quoted in Shetreet and Deschênes (1985), p. 441.

  27. 27.

    See International Bar Association, Code of Minimum Standards of Judicial Independence (1982) (adopted at the IBA Biennial Conference on 22 October 1982) (‘IBA Minimum Standards’), quoted in Shetreet and Deschênes (1985), p. 388. The IBA Minimum Standards contained little theoretical examination and is far more concerned with specific measure and protects. Its definitions of concept are basic, distinguishing between ‘personal’ independence going to the judge’s terms and conditions, and ‘substantive’ independence protecting the judge from external direction. For a discussion: see King (1985), p. 403, Haese (1985), p. 382.

  28. 28.

    Universal Declaration on the Independence of Justice (1983) (adopted at the final plenary session of the First World Conference on the Independence of Justice on 10 June 1983) § 2.02 (emphasis added) (‘Montreal Declaration’), quoted in Shetreet and Deschênes (1985), pp. 447–61. See Deschênes (1985), p. 445.

  29. 29.

    Basic Principles on the Independence of the Judiciary (1985) Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, UN Doc A/CONF 121/22/Rev 1 at 59 (1985) (endorsed by GA Res 40/32 of 29 November 1985 and 40/146 of 13 December 1985) § 2 (emphasis added) (‘UN Basic Principles’).

  30. 30.

    Pimentel (2009), p. 4.

  31. 31.

    See The Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region [1995] CCJAPRes 1 (19 August 1995) § 3(a), which states that independence of the judiciary requires that: ‘[t]he judiciary shall decide matters before it in accordance with its impartial assessment of the law without improper influences, direct or indirect, from any source.’

  32. 32.

    International Association of Judges, Universal Charter of the Judge (1999) (approved on the 17th of November 1999) art 1.

  33. 33.

    On the Independence, Efficiency and Role of Judges (1994) Recommendation No R (94) 12 (adopted by the Committee of Ministers, Council of Europe on 13 October 1994) principle I, s 2(d) (emphasis added).

  34. 34.

    On Standards Concerning the Independence of the Judiciary and the Irremovability of Judges (2001) (Consultative Council of European Judges, Council of Europe, OP No 1, 23 November 2001) § 11 (‘CCEJ Standards of Independence’). It expanded on this statement, observing in § 12 that: ‘Judicial independence presupposes total impartiality on the part of judges. When adjudicating between any parties, judges must be impartial, that is free from any connection, inclination or bias, which affects – or may be seen as affecting – their ability to adjudicate independently’ (emphasis added).

  35. 35.

    On the Principles and Rules Governing Judges’ Professional Conduct, in Particular Ethics, Incompatible Behaviour and Impartiality (2002) (Consultative Council of European Judges, Council of Europe, OP No 3, 19 November 2002) [16] (‘CCEJ Principles of Professional Conduct’).

  36. 36.

    Recommendation on Judges: Independence, Efficiency and Responsibilities and its Explanatory Memorandum (2010) (Committee of Ministers, Council of Europe, 17 November 2010) § 5. Critically, they articulate that judges should be free to decide ‘in accordance with the law and their interpretation of the facts’.

  37. 37.

    Ibid § 22.

  38. 38.

    ILA Study Group on the Practice and Procedure of International Courts and Tribunals, The Burgh House Principles On The Independence Of The International Judiciary (2005) § 1.1 (‘Burgh House Principles’), quoted in Sands, McLachlan and Mackenzie (2005), pp. 251–60.

  39. 39.

    For definitions of ‘independence’ and ‘impartiality’: see The Bangalore Draft Code of Judicial Conduct 2001 (2002) (adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices, 25–6 November 2002) values 1–2.

  40. 40.

    Stephen (1985), p. 531.

  41. 41.

    Erkki-Juhani Taipale, ‘Judicial Independence from the Lawyer’s Point of View’ (Report of the Symposium on the Independence of Judges and Lawyers, November 1980) 118, quoted in Shetreet (1985), pp. 594–5. As Taipale notes, the principle requires that the judiciary ‘can only be subordinate to the law’: p. 594.

  42. 42.

    Seventh Report on the Situation of Human Rights in Cuba (1983) (Inter-American Commission for Human Rights, OEA/SerL/V/II 61, October 1983).

  43. 43.

    Shetreet (1985), p. 95.

  44. 44.

    See Geyh (2008), p. 446.

  45. 45.

    In this regard, the ‘constitutional conception’ fails to distinguish between the value served by the principle of judicial independence and the mechanism by which that value is promoted.

  46. 46.

    Lachs (1987), p. 596.

  47. 47.

    See Geyh (2008), p. 447.

  48. 48.

    Ibid., p. 448.

  49. 49.

    Ibid.

  50. 50.

    For example, while a visibly independent judiciary does promote public confidence, it is a mistake to derive from this a justificatory connection. It can equally be stated that a judiciary in which the public is confident is more likely to be independent, that confidence flows from judicial independence rather than justifies it, or that independence promotes confidence because there is an expectation of impartiality which independence protects.

  51. 51.

    Geyh (2008), p. 448.

  52. 52.

    Pimentel argues that even ‘the most ardent champions of judicial independence acknowledge that it is only a means to an end … [though] … it is not always clear what the ‘end’ should be’: Pimentel (2009), p. 7.

  53. 53.

    Marshall (1995), p. 28.

  54. 54.

    As Seibert-Fohr notes, this obligation ‘has been acknowledged in varying degrees since at least the end of absolutism’: Seibert-Fohr (2010), p. 2.

  55. 55.

    See Beaumartin v France (1994) 296-B Eur Court HR (ser A) [38].

  56. 56.

    Ringeisen v Austria (1971) 13 Eur Court HR 2614/65 (ser A) [95].

  57. 57.

    See Pabla KY v Finland [2004] Eur Court HR 47221/99. See also McGonnell v UK [2000] Eur Court HR 28488/95 [55].

  58. 58.

    White (2002), p. 1059.

  59. 59.

    This ‘constitutional’ imperative is explicit in Green’s definition of judicial independence ‘as the capacity of the courts to perform their constitutional function free from actual or apparent interference by … any persons or institutions, including … the executive arm of government.’: Green (1985) p. 135.

  60. 60.

    R v Beauregard (1986) 70 NR 1, 13 [21].

  61. 61.

    Re Minister for Immigration and Multi-Cultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128, 152 [71].

  62. 62.

    R v Lippé [1991] 2 SCR 114, 139.

  63. 63.

    Ibid.

  64. 64.

    Pasquino (2003), p. 25.

  65. 65.

    As Geyh notes, judicial independence ‘is not an end in itself’ but an ‘instrumental value’, ‘a means to achieve other ends … [thereby] … defined by the purposes it serves’: Geyh (2006), p. 915.

  66. 66.

    Shetreet argues that in ‘order for the court to be able to resolve disputes … the court must be independent and free from any external pressure or influence’: Shetreet (1985), p. 591.

  67. 67.

    For exposition of the prohibited types of subordination: see ibid.

  68. 68.

    Handsley (2001), p. 189.

  69. 69.

    As White notes, judicial independence it is not a freedom ‘to decide cases based on personal whim or caprice, nor … to decide cases based on personal viewpoints of what the law ought to require’: White (2002), p. 1060.

  70. 70.

    Morabito (1993), pp. 489–90.

  71. 71.

    Ibid.

  72. 72.

    Spigelman (2000), p. 379. Similarly Felix Frankfurter is reported to have said that a good judge needs ‘three qualities, each of which is disinterestedness’ as quoted in Pannick (1987), p. 51. Surveys of Australian judicial officers found that 100% of judges and 98% of magistrates considered that impartiality was essential or very important in the performance of daily tasks: Roach Anleu and Mack (2017), p. 59. Fewer judicial officers considered ‘legal knowledge’, ‘commitment to protecting legal rights’, ‘communication’ and other skills and qualities to be so important: ibid. p. 59–70.

  73. 73.

    Mahoney (2008), p. 340.

  74. 74.

    Raban (2003), p. 1.

  75. 75.

    Ibid. A similar point is made by Hobbes, who observed that ‘if a man be trusted to judge between man and man, it is a precept of the Law of Nature, that he deal Equally between them’: Hobbes (first published 1651, 1996 ed), p. 108.

  76. 76.

    See Lucy (2005), p. 18. This point is not always appreciated, with some approaches overreaching to protect judges from any influence for any reason: See especially Montreal Declaration § 2.02, quoted in Shetreet and Deschênes (1985), pp. 447–61; UN Basic Principles § 2.

  77. 77.

    Raban (2003), p. 1.

  78. 78.

    Ibid., p. 111.

  79. 79.

    Marshall (1995), pp. 18–9.

  80. 80.

    Basten (1980), pp. 469–70.

  81. 81.

    Marshall argues that influences, such as the substantive law and procedure, and the values and norms of the society, will legitimately influence the judge: Marshall (1995), pp. 18–9.

  82. 82.

    Raban (2003), p. 83.

  83. 83.

    Canadian Judicial Council, Commentaries on Judicial Conduct (1991), p. 12.

  84. 84.

    Raban (2003), p. 109.

  85. 85.

    See ibid., p. 111.

  86. 86.

    Ibid., pp. 79–80.

  87. 87.

    Pimentel (2009), p. 11.

  88. 88.

    This is often the more difficult task: see Mason (2005), p. 127.

  89. 89.

    Raban (2003), p. 1.

  90. 90.

    Canadian Judicial Council, Commentaries on Judicial Conduct (1991). As the Council notes, to keep that mind truly open ‘the judge … must respond to the challenge of self-examination.’

  91. 91.

    Wendel (2008).

  92. 92.

    For example, executive appointment may distort the judiciary by influencing the judge to favour the appointer either from a sense of loyalty or obligation or an anticipation of future reward, or by creating an institutional bias by appointing a particular ‘type’ of judge.

  93. 93.

    More than mere influence is required: cf. the language used in the Montreal Declaration § 2.02, quoted in Shetreet and Deschênes (1985), pp. 447–61; UN Basic Principles § 2.

  94. 94.

    See Re Tooth & Co Ltd and Toohey’s Limited (1978) 39 FLR 1; Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 [36], [66]; Tracey (1982), pp. 630–1.

  95. 95.

    See Malleson (2009), pp. 685–7.

  96. 96.

    Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island [1997] SCR 3 [10] (emphasis added).

  97. 97.

    For example, CCEJ Standards of Independence § 12 states: ‘Not merely the parties to any particular dispute, but society as a whole must be able to trust the judiciary. A judge must thus not merely be free in fact from any inappropriate connection, bias or influence, he … must also appear to a reasonable observer to be free therefrom. Otherwise, confidence in the independence of the judiciary may be undermined.’ See also CCEJ Principles of Professional Conduct [16].

  98. 98.

    Arguably this comfort is destroyed by the appearance of partiality rather than actual partiality.

  99. 99.

    Denham argues that it is upon the confidence of the litigant of receiving impartial justice that ‘rests the power of the judiciary’: Denham (2001), p. 31.

  100. 100.

    Marshall (1995), p. 70. See also Drummond (2001), p. 309.

  101. 101.

    The appearance of partiality promotes uncertainty and unpredictability, coupled with a suspicion of injustice, which creates a toxic blend that poisons the health of the judicial institution.

  102. 102.

    See Malleson (2009), p. 671. See also Russell (2001), p. 8.

  103. 103.

    The traditional labels are commonly deployed as ‘labels of convenience’ in the literature. Brown argues that in general usage judges are ‘independent’ if there is ‘no external source of control or influence which prevents them from acting in an autonomous fashion’ and ‘impartial’ if there is ‘no bias in the disposal of a case’: Brown (2003), p. 75. See also Mahoney (2008), pp. 320–1, Stephen (1985), p. 529. This broad division underlies attempts to link judicial independence to governmental influences, with ‘independence’ referring ‘to the lack of … connection between the tribunal and other parts of government,’ and ‘impartiality’ relating ‘to the parties to the suit and the case at issue’: van Dijk et al. (2006), p. 613. However, given the theoretical structure I have developed, I argue that the cost of this label of convenience is too high, and it is better to avoid it where possible.

  104. 104.

    Mahoney (2008), pp. 320–1. As Mahoney notes, the ‘personal responsibility’ required of judicial independence ‘is notably embodied in the requirements of impartiality’.

  105. 105.

    Arguably, the categorisation is useful only insofar as it allows the identification of particular ‘species’ of threat to judicial impartiality, quickly establishing and framing the relevant debate.

  106. 106.

    See Findlay v United Kingdom [1997] Eur Court HR 22107/93 [73]; Pabla KY v Finland [2004] Eur Court HR 47221/99 [28].

  107. 107.

    Thus, for example, most of the human rights instruments refer to an ‘independent and impartial tribunal’: cf. African [Banjul] Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, OAU Doc CAB/LEG/67/3 rev 5, (1982) 21 ILM 58 (entered into force 21 October 1986) arts 7, 26. See Civil Liberties Organization v Nigeria (1995) (African Commission on Human and Peoples’ Rights, Communication, 129/94) [16].

  108. 108.

    See Seibert-Fohr (2010), pp. 1, 11.

  109. 109.

    Ibid., p. 1.

  110. 110.

    See Malleson (2009) p. 671.

  111. 111.

    Seibert-Fohr (2010), p. 1.

  112. 112.

    This was recognised by Gleeson CJ who observed that ‘there is no single ideal model of judicial independence, personal or institutional’: North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146, 152 [3].

  113. 113.

    While there will be common responses to common threats, there must always be a concrete examination of the specific circumstances.

  114. 114.

    For example, the Court has recognised that there is not a single, absolute conception of judicial independence: Pabla KY v Finland [2004] Eur Court HR 47221/99 [29].

  115. 115.

    Wettstein v Switzerland [2000] Eur Court HR 33958/96 [41].

  116. 116.

    Campbell and Fell v UK [1984] Eur Court HR 7819/77; 7878/77 [80].

  117. 117.

    McGonnell v UK [2000] Eur Court HR 28488/95 [52]. The Court has noted, however, that these are all circumstances which may tend to indicate a lack of independence and impartiality.

  118. 118.

    Seibert-Fohr (2010), pp. 9–10.

  119. 119.

    For discussion of the alternative view that ‘the idea of judicial independence is culture specific’: see Mackenzie and Sands (2003), p. 275.

  120. 120.

    Shetreet (1985), p. 590.

  121. 121.

    Pimentel (2009), p. 11.

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  1. School of Law, University of South Australia, Adelaide, SA, Australia

    Joe McIntyre

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McIntyre, J. (2019). Principles of Judicial Impartiality: Threats to the Independence and Impartiality of Judges. In: The Judicial Function. Springer, Singapore. https://doi.org/10.1007/978-981-32-9115-7_10

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  • DOI: https://doi.org/10.1007/978-981-32-9115-7_10

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