One-sidedly Staffed Courts
A Problem of Impartiality – not only in Poland
In Poland, the new parliamentary majority elected on October 15 is confronted not only with a president brought into office by the PiS party but also with a constitutional court made up exclusively of judges elected under the aegis of PiS. Any effort to restore the rule of law in the Polish judiciary is likely to meet resistance from these veto players. The difficulties to be expected for the new majority in dealing with the rule of law deficiencies that have piled up in the Polish justice system, and especially in the Polish Constitutional Tribunal since 2010 (on these difficulties here, pp. 227 ff., and here) draw attention to an underlying problem to be witnessed not only in Poland, and not only in other countries where democracy and the rule of law have deteriorated or never existed: the problem of courts, and in particular constitutional courts, with a blatant lack of political balance in their composition. This is a little-noticed but very serious problem – as long as the political and regulatory conditions on which the one-sided composition is based persist, and, as the Polish case now makes clear, even after these political conditions have changed.
Individual and systemic impartiality
This problem is usually – if at all – discussed in somewhat misconceived terms, as a problem of judicial independence (see below). As a consequence, the appointment of justices by parliament and/or other political organs attracts criticism as being in itself detrimental to the independence of judges. However, as can be observed in many constitutional courts (including supreme courts with constitutional review powers) around the world, the appointment of judges by political bodies is by no means incompatible with judicial independence. Some forms of political appointment may pose a specific risk to independence. This is notably true for unchecked appointments of judges and court presidents by heads of state, which are prone to result in the appointment of cronies or even people with skeletons in the closet who are, therefore, susceptible to pressure. Nevertheless, there is no problem with political appointments per se. Politically one-sided court compositions, by contrast, are a bad thing per se. The problem with them is not a problem of independence. A one-sidedly composed court may as a matter of fact be insufficiently independent, as well, but that is far from being a necessary consequence of its judges being politically appointed, or of its unbalanced composition. What one-sidedly composed courts lack per se is not independence but structural or systemic impartiality. The issue here is not the presence or absence of particular biases of individual judges, i.e. the question of individual judicial impartiality, but the fact that the panel as a whole lacks the balance that is necessary to ensure that the values, prejudices, selective attentions, etc. that each individual judge brings to the table do not, by virtue of numerical preponderance or even a complete lack of competing views, result in a jurisprudence predictably swinging in favour of or against certain sides of the political spectrum.
A court that lacks systemic impartiality may, over and beyond that, be staffed with judges who are individually biased and do not maintain the distance from political actors that is to be expected of independent judges, as was and is at least partially the case with the Polish Constitutional Court.1) But that’s another matter. These deficits must first be distinguished from one another. There are connections between the two: dependence always impairs impartiality (as the Consultative Council of European Judges rightly points out here, pp. 4 f.). Conversely, however, completely independent judges can nevertheless be individually biased, and a panel of completely independent judges may lack systemic impartiality due to its unbalanced composition.
Independence and impartiality – abstract explanations in the case-law of the ECJ and the ECtHR
In the case-law of the European courts, systemic impartiality has not, so far, been explicitly identified as such and as a violation of the impartiality requirement of the European Convention on Human Rights or the European Treaties.
According to the ECJ, judicial independence “has two aspects to it”, an external and an internal one. Impartiality is presented as the internal aspect of independence: “The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law”.2) The juxtaposition of external and internal aspects seems unfortunate – after all, both independence and impartiality are about the relationship to outsiders and their perception of the court, but also have an intrapersonal “aspect”. Treating impartiality as an “aspect” of independence is not conducive to insight, either, because it does not shed light on the – asymmetrical – connection between independence and impartiality described above. Instead, it obscures the possibility of partiality existing despite full independence. This possibility is inappropriately excluded by definition: If impartiality is to be an “aspect”, i.e. an element or sub-category, of independence, then partiality by definition impairs independence, and conversely, finding a court independent in this conceptual framework implies that it is also impartial.
Whether the ECJ’s cited abstract explanation of the concept of impartiality covers systemic impartiality is not quite clear. A clue is provided in the court’s finding that “Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it”.3) This standard has not yet been specified with regard to the problem of systemic impartiality in the case-law of the court, although there would have been proper occasions. Accordingly, one might assume that in postulating rules for the composition of a court apt to dispel any doubts as to neutrality, the ECJ did not intentionally address systemic impartiality. Nevertheless, whether intentionally or not, systemic impartiality is obviously covered by that standard, objectively. It can hardly be denied that a constitutional court made up exclusively of exponents of a certain political colour may give rise to “reasonable doubts” about its “neutrality with respect to the interests before it”.
According to the ECtHR, the impartiality required by Article 6(1) ECHR is to be determined on the basis of a subjective and an objective test. The subjective one concerns the possible bias of a particular judge in a given case, while the objective one is to ascertain “whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality”.4) According to explanations of the so-called objective test, this test is supposed to be about objective facts that raise doubts about the impartiality of an individual judge, and it usually concerns hierarchical connections between the judge and other protagonists in the proceedings.5) Whatever the shortcomings of these attempts at conceptual clarification – the explicit statement that the composition of the court is relevant to the question of impartiality should nevertheless qualify to be taken seriously.
In the case-law of both courts, however, there is a lack of clear, imperative standards for what is required in this respect, and that is no coincidence.
Precautions against systemically biased court compositions
The state of affairs at the national level is an impediment to the evolution, in international and supranational law, of a strict and concrete postulate that courts must be structurally impartial in the sense described above. At the national level, institutional precautions against systemically biased courts are often absent, even in many democratic, rule-of-law-abiding states. It is one of the problems of many constitutional courts – worldwide, including in Europe, and also in the EU – and one of the causes of frequent dysfunctions and political conflicts over constitutional jurisdiction, that their country has no provisions, or no reasonably reliable ones, even against grossly one-sided appointments. Besides instances of complete absence of plurality safeguards, there are various institutional designs which tend to promote a certain political plurality in court appointments. In some of these, one can see an expression of normative convictions, at least the expression of a sense that complete party-political or other ideological homogeneity should be avoided. However, all these precautions are only effective to a limited extent and only under certain conditions that do not necessarily prevail in practice.
Limited judicial terms of office, for instance, may help to avoid long-lasting one-sided court compositions by allowing new appointments at shorter intervals. Compared with, say, lifetime appointments without an age limit, as for the US Supreme Court, they make it more likely that democratic change, resulting in varying political colours of heads of state, parliamentary majorities etc., will bring about plural appointments. Involving different constitutional organs, be it in a split model (with different organs each appointing part of the judges) or in a cooperation model (each candidate needs the support of at least two organs), or in various combinations of the two (details here, p 162 ff.), also increases the chance of getting at politically plural court compositions. Arrangements of this type may originally have served the purpose of ensuring a balance with respect to the representation of interests of different organs (“powers”) of the state, but they also make it more likely that exponents of different political parties will play a part in the selection of judges. However, it is also possible that the various organs with a say in the appointment process are staffed or dominated by the same party or party coalition, and this may remain so for a longer period, even up to the point of a complete or almost complete renewal of the bench in question. Pierre Joxe, for example, reported that during his entire nine-year term of office (until 2010) at the French Conseil Constitutionnel, he was the only one of the appointed judges who had not been brought into office by former president of the republic Jaques Chirac or his political comrades heading the two chambers of parliament.6) Attempts to produce sufficient political pluralism on the bench by means of staggered appointments often fail because there is no sufficient political change in the composition of the appointing constitutional bodies over time and/or because no sufficient precautions have been taken against a collapse of the envisaged rhythm of reappointments due to premature terminations of terms of office (death, resignation etc.) or as a consequence of blockages in the appointment procedure (more details here, pp. 173 ff.). Sometimes, the rules are even designed to have judicial terms of office run parallel and thus to have the entire court composition renewed simultaneously at term’s length intervals (examples here, pp. 172, 179), and sometimes, this is at least an effect of the relevant design. In the Czech Republic, for example, the entire bench of the Constitutional Court has long been renewed mostly in the same year at ten-year-intervals, with few exceptions only, and to this day, new appointments come concentrated in few, mostly neighbouring years (see appointment data of incumbent and emeriti justices on the court’s website, here and here).
That is, of course, not conducive to politically pluralist appointments unless, in the case of Czechia, the President of the Republic, who is entitled to nominate, and the Senate, which must confirm the nomination by a simple majority, happen to exercise their powers in a distinctly non-partisan manner.7) Thirteen of the fifteen Czech seats on the Czech Constitutional Court are or were up for reappointment this year and next year. The incumbent President of the Republic, who was elected this year, has established an advisory body to recommend candidates to him and, among other things, to ensure diversity of opinions. He has also invited various institutions to submit proposals. It remains to be seen whether this change, which apparently increases transparency and entails certain informal self-commitments but is nevertheless controversial (see here), will result in a balanced composition of the Court.
A more or less far-reaching shift of selection competencies to recommending, exclusively proposing or even conclusively selecting bodies such as judicial councils and the like can also be found in many other countries. Involving a council or board, preferably one with a dominant share of members from the judiciary, in the selection process is propagated as an instrument for the depoliticisation of the selection of judges and an associated increase in the independence of judges, and it may of course also contribute to political pluralisation. However, it is anything but a reliable means to these ends. It often disguises political influences – which, incidentally, can emanate not only from political organs but also from judicial and other actors –, and it exacerbates dependencies within the judiciary. Moreover, the more binding the influence of such bodies is, the more it raises problems of democratic legitimacy, especially in the case of constitutional courts (for more details, see here, pp. 210 ff.).
Qualified majority requirements for the election of judges, as provided for in Germany (two-thirds majority requirement, Sect. 6 II 2, Sect. 7 FedConstCtAct) and many other countries – sometimes only for a portion of the judges elected by multi-member bodies –, are probably the most helpful devices. But even they can fail to secure balance, be it because the qualified majority requirement relates to too small a proportion of the judges, be it due to blockades to which it may lead in the absence of a sufficient fallback mechanism, or be it because a dominant party or ruling party coalition is able to fulfil an applicable qualified majority requirement without involving the opposition, as has, for instance, repeatedly been the case in Hungary due to an electoral law allowing compositions of parliament which poorly reflect voters’ preferences. Norms aiming to have the political composition of parliament reflected in the judiciary, as they exist in Switzerland in some cantons and, as a respected convention, on the federal level, have a sufficiently pluralising effect only in a multi-party system without large political coalition bloc formations, not to mention the fact that in the current phase of increasing political polarisation, mere conventions are increasingly coming under pressure.
Soft law and the – not just soft – prohibition of regression
International practice thus reveals a widespread