Judicial Independence and the Constitution Hill Global Guidelines on Apex Court Appointments
The judiciary is the branch of government charged with checking the exercise of political power by the executive and legislature, and with enforcing constitutional rights. This explains why autocrats so often attempt to capture it. Moreover, capturing the judiciary allows them to window-dress their policies as constitutionally and legally legitimate.
When capturing the judiciary is not feasible, autocrats resort to strategies such as constitutional amendments, legal reforms, disciplinary measures, and changes in institutional regulation to undermine the status and work conditions of independent judges. These measures erode both the institutional and factual independence of the judiciary.
The 2024 Mexican Judicial Reform provides a clear example. Former President López Obrador managed to obtain congressional approval of a structural change in the Mexican judiciary, transforming the appointment-based system into a system in which judges are elected by popular vote. This reform was a response to the Supreme Federal Court’s rulings striking down several of his earlier reforms as unconstitutional. López Obrador argued that those reforms represented the will of the Mexican people and that the existing judiciary was largely corrupt. The approval of the Judicial Reform became possible after López Obrador’s party won a legislative majority in June 2024. The Judicial Reform faced opposition from foreign governments, academics, law students, and NGOs. Critics argued that the reform would undermine the independence of Mexican courts and violate the checks and balances established in the Constitution. The reform led 9 of the 11 Supreme Court Justices to resign.
The key question in Mexico and everywhere else is how to protect the independence of the judiciary from such attacks and weakening. The Constitution Hill Global Guidelines on Apex Court Appointments provide a foundational step in the protection of the independence of the judiciary. This set of guidelines spells out standards for defining what should be the structural role and characteristics of Apex Courts; what should be the appointment criteria and procedures for appointing judges in Apex Courts; and what should be appropriate conditions of service and tenure for judges in Apex Courts. Naturally, those standards allow for a margin of appreciation that aligns with the traditions, culture, and particularities of every country. Nevertheless, they set a minimum core that constitutes an untouchable basis that constituent assemblies and legislators should observe when introducing reforms to the judiciary. In most cases, those reforms target Apex Courts, because they usually have the power to interpret the constitution and to carry out abstract and concrete constitutional review. The exercise of those powers has historically proved to be an effective check on the Government and the Legislature. In this sense, the Constitution Hill Global Guidelines on Apex Court Appointments are a valuable instrument that can help polities to make informed decisions and critical analysis of reforms to Apex Courts, always preserving their independence and institutional strengths.
The Constitution Hill Global Guidelines on Apex Court Appointments make remarkable contributions to this field concerning several matters.
First, they bring clarity to the concept of “Apex Court” as the supreme judicial authority in a country (which can be called: Supreme Court, Constitutional Court, High Court, etc.).
Second, they spell out three core roles of an Apex Court in a democracy: as an institutional check on the exercise of political power by the Government and the Legislature; as a Higher Court empowered to create precedents and overrule decisions by lower-level courts and justices; and as the highest authority with power to interpret the constitution by means of universally binding decisions.
Third, they explain seven unique features of Apex Courts: exercising the final word in constitutional interpretation; dealing with highly consequential social and political controversies; hearing cases and rendering collective judgments in plenary or panel format; providing multi-level normative leadership to political actors, judges and the society at large; comprising highly visible representatives of a country’s judiciary; experiencing greater political pressure; and facing higher media and public scrutiny.
Fourth, they make the sound claim that those features justify uniquely demanding and rigorous criteria and procedures for the appointment of Apex Court judges. Such judges should possess specific character traits: : integrity, composure, impartiality, independent mindedness, courage, and collegiality. Moreover, their appointment should be merit-based. It should be grounded in their expertise, diligence, intellectual ability, inventiveness, contextual knowledge, and prior experience. They should also have neither criminal records nor conflicts of interest. Furthermore, the appointment procedure should have several steps (nomination, vetting, confirmation, election, etc.), and should allow for the broadest possible participation.
Fifth, the Guidelines establish service and tenure standards for Apex Court judges that favour judicial independence. These include adequate remuneration, respect for term duration, immunity for judicial decisions, and the enforcement of the rule of law in procedures for discipline, suspension and removal.
Beyond their relevance, the question is whether those standards suffice to guarantee judicial independence. They are indeed useful in distinguishing between legitimate appointment processes and autocratic shams. Furthermore, they establish conditions that make it significantly harder for autocrats to exert pressure on judges. Those conditions help to create both institutional and legal separation between the judiciary and the political branches of government, thereby contributing to an institutional framework in which judges are not subjects of other powers.
Nevertheless, factual judicial independence demands contextual conditions that seem to escape any attempt of legal regulation. It requires judges to remain free from political and private influence, in a way that enables them to solve cases on their merits – according to facts, evidence, and applicable legal rules. Achieving factual judicial independence largely depends on the character of the judges. It also requires a context in which judges neither seek to favour constituencies that could advance future political aspirations, nor private industry interests promising actual or future benefits. Finally, despite the relevance of broad public participation in judicial appointments, procedures must be designed to prevent capture by political elites who campaign for particular candidates. Legal procedures should allow parties to recuse judges whose factual independence is compromised. Lastly, guaranteeing institutional, legal and factual independence is a core task in contexts of transitional justice. The concept of “transitional justice” refers to a range of “processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”Through the processes and mechanisms of transitional justice, the political community seeks to overcome a past of severe and systematic violations of human rights, and to “repair and rebuild” state institutions within the confines of the rule of law. On this basis, transitional justice generally implies radical political change, often leading to a new constitutional framework distinct from the old. Such processes typically take place within an interim legal framework, designed to ensure the appropriate allocation of responsibility for human rights violations, acknowledgment of the truth, compensation to victims, demobilization of individuals and groups in conflict, reconciliation, and to bring about the end of an unjust regime.
A key goal for any polity in transition should be the establishment of an independent judiciary, alongside the incorporation of new constitutional rules, guidelines – such as those articulated by the Constitution Hill document – to secure judicial independence in the future. Only independent judges can ensure that the aims of transitional justice are achieved. They can infuse the transformative spirit of the new constitution and the new political order to make democratic constitutionalism a reality. For this reason, Apex Courts in transitional societies should be strongly protected from inappropriate pressures by the political authorities. As in the old story of the miller of Sanssouci, a necessary condition for the enjoyment of democracy and constitutional rights still rests in the fact that ordinary citizens can claim: Es gibt (noch) Richter in Berlin – and I would add unabhängige Richter in Berlin (i.e. there are still independent judges) endowed with the power to contain and redress the abuse of power.