Judge Walker Supports Rule of Law in Tbilisi
“What I see in Georgia that is refreshing, is that the demand for judicial reform is coming from the government and the people, and isn’t being imposed from without” observed Judge John M. Walker Jr., Senior Justice of the U.S. Second Circuit Court of Appeals at the start of an engaging lecture with law students at the Georgian Institute for Public Administration. As Georgia moves towards jury trials, IIP Speaker Walker allayed students’ concerns about inherent pitfalls in the jury trial system. In an interview with “Rezonansi,” a leading pro-reform newspaper, Walker discussed the vital role an independent judiciary plays in a democracy. Walker also met with alumni of the Open World Rule of Law program, a USG exchange program sponsored by the U.S. Congress. Judge Walker visited Tbilisi from July 14-20 to be the keynote speaker at the USAID international conference on judicial reform. He also met with Ambassador Tefft and with members of the Georgian government, including President Mikheil Saakashvili.
Complete text of Judge Walker’s ABA conference speech:
Keynote Remarks Of
Senior Judge John M. Walker, Jr.
U.S. Court of Appeals for the Second Circuit
At the Opening of the Conference on Rule of Law and Judicial Independence
Tbilisi, Georgia July 18, 2008
It is an honor and a privilege to speak to you at the opening of this conference on Law Reform and Judicial Independence in Georgia. When I spoke to President Saakashvili yesterday, he asked me to convey his strong support and encouragement for the work of the conference.
Special appreciation is owed to those responsible for this event. They include the Georgian Supreme Court and its outstanding Chief Justice, Konstantin Kublashvili, USAID, the American Bar Association and the American Embassy under the superb leadership of Ambassador John Tefft.
Today the conference will consider the status of Georgian reforms and will look at judicial independence from different perspectives: from Georgian judges, from judges of other countries and from others involved with the administration of justice in Georgia. The conference will also consider perceptions of the judiciary by the public at large.
It is worth reflecting for a moment on what we mean by the Rule of Law when we talk about it at this conference. Consider the following definition:
“A system of laws and legal administration whereby rules, that are openly arrived at, emanate from the people through their elected representatives and are fairly and transparently applied, equally to all, to ensure an ordered society and to protect individual rights against impermissible government intrusion.”
It is axiomatic that, in a society where the Rule of Law prevails, it is the law that is paramount. The law represents the will of the people effectuated through their representatives. It thus occupies a position of supreme authority in the governing structure.
The principal feature of the Rule of Law is that the law applies equally to everyone in the society. A society that has laws, but in which certain people are permitted to disregard them, may lay claim to being a society under the Rule of Law, but that claim rings hollow. A corollary of the Rule of Law is the idea that is reflected in the everyday aphorism in my country that: “No person is above the law.”
What do we mean when we say that “No person is above the Law”? Quite simply, we mean that if law is to promote the goals of the entire society, every member of that society has an obligation to act in accordance with the law – not just the average citizen, but the wealthy businessman, the doctor, the lawyer, the judge, and indeed every public official whatever his or her station. The same is true for institutions: all institutions are subject to the law, and this includes important associations, powerful businesses, and indeed government itself.
It is to this latter aspect of the Rule of Law that I want to now turn in these remarks: the relationship between the judiciary and the rest of the government in a law-based society, and the need for an independent judiciary to safeguard and apply the law.
In some countries, the legislature, the executive, and the judiciary are separate branches of government. That is the case in my country. It was the view of the framers of our Constitution that if the branches were separate, each branch could act as a check upon the other, and with official power thus separated, no one branch would have too much power. The Framers took a realistic view that at times those in leadership positions might be less than honorable, so they adopted a framework that would be responsive to leaders who tried to exceed their lawful authority.
In other countries operating under a parliamentary system, such as Georgia, the legislative and executive powers are merged, but that of the judiciary still remains separate. In each case, it is the independence of the judiciary from the political branches that is considered indispensable for a society where the Rule of Law prevails. Of course, in such a society the judges are not free to exercise their own will – in other words, they are not independent from the law; even as they interpret and apply the law, they are also bound by the law.
When the political branches, and by extension the government that those branches control, act in accordance with the law, there is, of course, no need for judicial intervention. It is only when government actors depart from what the law permits or forbids, that the courts must step in.
In the United States, the Constitution is the supreme law of the land – all other laws are subordinate to it – and it serves two principal purposes: it delineates the specific powers of the separate branches of government, and it sets forth rights of the individual that cannot be violated by the government. In the famous case of Marbury v. Madison, decided in 1803, the Supreme Court held that, while every branch must follow the law embodied in the Constitution, in the final analysis “[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” These are the words of the great Chief Justice John Marshall writing for the Court in Marbury. Judges in the United States therefore have an exclusive duty to interpret the Constitution and to apply its terms.
So in the United States, the judiciary has authority that goes beyond adjudication of cases between individuals and private entities. Whenever ordinary legislation contravenes the higher law of the Constitution, the judiciary has the power to declare such legislation void. And it has the power to control executive authority whenever that authority acts to undermine the rights of the individual. It is a principal function of the judiciary in the United States, and in Georgia, to hold the government accountable whenever it goes outside the constitutional or statutory law and acts arbitrarily against a citizen. In fulfilling this function, the courts uphold the principle that it is for the government under law to serve the people and not for the people to serve the government.
It must be obvious by now that, if the courts are to serve as a check on the exercise of arbitrary power by the government, they have to be independent from government. It is this institutional judicial independence that is necessary to the Rule of Law. The judiciary must not be under the control of the other branches in any way that could affect its ability to decide cases against those branches when it is necessary to hold them accountable under law for constitutional or statutory transgressions. Of course, there is a constant tension between independence and accountability at the institutional level – most notably in the area of budget, which is set by the legislature – but it is impermissible under our system for the legislature to condition its budgetary decisions on judicial outcomes.
Apart from institutional independence embodied in the separation of powers, it is also necessary that each judge have personal independence, also referred to as decisional independence, or independence of mind, which permits the judge to decide each case according to the law and not for some other reason, such as personal gain or fear of reprisal. The U.S. Constitution contains two basic safeguards of decisional independence: judges are appointed for a life term, and no judge may have his or her salary reduced. To be independent, we have reasoned, judges should not have to worry about the security of their positions nor risk reduced compensation as reprisal for judicial decisions that are disagreeable to the legislature.
Of course, while secure terms for appointment and undiminished salary are necessary for decisional judicial independence, they are not sufficient. A judge could still be bribed or subjected to improper influences that could distort a judicial outcome. It is also critical that judges faithfully adhere to a strict code of ethics to ensure that every case is decided solely in accordance with the law. Judges should never have a personal interest – based on either fear or favor – in the outcome of a case that is before them.
Judges must also be perceived to be independent by the society if the rule of law is to be fully realized, and it is to this, I finally turn in the particular context of Georgia. Judge Dean Pineles will discuss public perception in greater detail in his remarks, but because it is so important I would be remiss in not briefly introducing the subject at this time.
Broadly speaking, there are three stages in Rule of Law reform. The first is getting the legislation in place; the second is establishing the institutions and having them run properly by people who are carefully selected and well-trained; and the third is creating a culture of popular trust that the courts are independent and the belief that they are working for the people and not against them.
In Georgia, stage one – proper legislation – has been effectively completed; and stage two -- the institutions – is well on the path to completion. These changes have been accomplished because of the hard work of many people, including many who are in this room, but much credit must go to the political leadership of Georgia -- and to President Saakashvili in particular -- who have made democracy and Rule of Law reform such a high priority for Georgia.
The problem, however, is that stages one and two are relatively easy to accomplish compared to stage three – building public support and trust for the justice system. And the lack of such public support and trust remains a real problem in Georgia.
The absence of public confidence in the independence of the courts and in the judges of Georgia has real consequences for Georgian society.
Consider for a moment just a few of the parts of society in which the Rule of Law plays a crucial role:
• It governs the military, police and firefighters and thus goes to the heart of community well-being and safety.
• The Rule of Law controls business actors by governing contracts, intellectual property, competition, sales, financing and capital markets.
• It protects against discrimination in the work place and in public accommodations.
• It sets the rules for public health – from the prescription of drugs that are safe and effective to the qualifications of doctors, and to the certification and funding of hospitals.
• The Rule of Law governs education including the admission of students, the awarding of degrees and the qualification of professors.
• It ensures that buildings are designed and constructed properly and according to standards and codes.
All of these critical features of society – and the list is only a partial one -- depend upon laws being properly established, applied and honored – in short, upon the rule of law.
But the larger purpose of the Rule of Law – which is to maintain the health and vigor of society - is lost if the people do not have the confidence that, in every area of society, the laws are for their benefit and that independent courts will protect them.
When people do have confidence in their legal system, businessmen will take risks and investments will be made; people will know that educated professionals are qualified for their jobs; and citizens can have the assurance that the important decisions in their lives are backed by laws that really do protect them and that independent courts will vindicate the public interest in seeing that the laws are applied and enforced. They will act with confidence in the knowledge that their property rights and human rights will be protected. In short, they will experience what it means to live in a society under law that is truly free.
So one challenge that I make to this conference is to find ways to transform the public’s perception in Georgia that the courts are not independent and do not serve their interests, that the absence of justice is the norm. In my country, the judiciary is the most respected branch of government by a wide margin. In Georgia, from all I can gather, it is the least respected. And this has been confirmed to me by President Saakashvili and Chief Justice Kublashvili. We at this conference need to examine this problem, understand its root causes and find ways to address it.
I want to close these remarks on a more positive note. While, as I have indicated, there is much in Georgia that remains to be done, Georgia can take justified pride in a great many accomplishments in judicial reform and law reform to date. And I do believe that when the history of democratic change in post-Soviet societies is written, Georgia will occupy a proud place at the forefront of this truly historic movement.
|
