The Arab Judicial Forum White Papers
Theme 1: Judicial Selection, Ethics and Training
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Arab Judicial Forum White Papers: Overview: Judicial Independence Theme 1: Judicial Selection, Ethics and Training Theme 2: The Judicial Role in Human Rights Protection Theme 3: Efficiency of Procedural Systems |
The manner in which nations regulate or control the selection, training, tenure and conditions of service, and ethical regime of judges will directly affect the quality of the judiciary and judicial independence. The power to choose and train judges and to establish and enforce an ethical regime is to some extent the power to control or influence the judiciary. Thus, the issues discussed in this theme will directly affect the essence of the judicial process: the actual decisions that judges make.1 Each of these subjects raises its own complexities and challenges, and they will be discussed separately below.
A. Selection of Judges
Throughout the world, judges are primarily appointed through three methods: by the executive, through judicial councils (whose members may be selected by the executive, the legislature, or judges themselves), or elections. Professor John Henry Merryman describes the typical process for the appointment and career advancement of judges in a civil law system:
Shortly after graduation [from a university law school], he will take a state examination for aspirants to the judiciary, and, if successful, will be appointed a junior judge. (In France and a few other nations, he must first attend a special school for judges.) Before very long, he will actually be sitting as a judge somewhere in the lower hierarchy of courts. In time, he will rise in the judiciary dependent on some combination of demonstrated ability and seniority.2
An obvious means of influencing the judiciary is through the appointment of judges. Under the UN Principles, any selection method should safeguard against "appointments for improper motives," 3 and discrimination based on race, sex, or religion is forbidden.4 The Judges' Charter in Europe places primary responsibility for the selection of judges on the judiciary itself, finding that judges must be chosen "exclusively on objective criteria designed to ensure professional competence."5 The power to choose judges must be given to "an independent body that represents the Judges."6 Finally, under the Charter, no outside influence and, especially, no political influence, can play any part in the selection process.7
Resisting political influence is not the sole concern in selecting judges. One World Bank expert on the judiciary comments on the need for a thorough examination of candidates:
Whatever the appointment process, there should be a careful investigation of the individual proposed. For example, background checks could help ensure the character of the individual meets the required standard. . . . Transparency in appointment is essential. Open competition is advisable. . . . A panel that includes laypersons could conduct interviews, as is the practice in England.8
The system for selecting judges in Germany is lengthy and competitive:
The system is divided into two phases: an intensive and largely prescribed course of university studies lasting three and a half years, followed by at least two years of preparatory training. A major state examination, consisting of written and oral parts, follows each of these stages. . . . On passing it, students may proceed to the preparatory, or practical stage of their training. During this phase, trainees serve for prescribed periods of time, (usually three months or longer) as apprentices, respectively, in civil court or ordinary jurisdiction, a criminal court or prosecutor's office, an administrative agency, and a private law office. In the year or more that remains of the training period . . . students may train in courts or agencies of their own choosing. . . . Finally, [the] student . . . must pass the second state examination with high honors.9
In France, the system is similarly rigorous:
They all must have the equivalent of four years of higher education beyond the baccalauréat. The majority of judges are recruited on the basis of national competitive examinations, which determine their right to enter into a three-year program of study at the Ecole Nationale de la Magistrature . . . . The curriculum includes a period of apprenticeship that requires the candidate to perform and be evaluated in each of the typical judge settings - trial judge, investigating judge, appellate judge, etc. The apprenticeship in the courts is supervised and evaluated by the faculty at the school. Upon completion of this educational program, a jury determines whether a candidate for the judiciary is qualified for service in that profession.10
Candidates that survive these requirements are then eligible to be appointed by the Conseil Supérieur de la Magistrature ("CSM"), a council appointed by the president that is dominated by judges.11
In Arab nations, there are several different models for appointing judges. Thus, the composition of the judicial council is often critical. In Lebanon, seven of the nine members of the Supreme Council of the Judiciary are judges. The Minster of Justice confers with the Council concerning the number of additional judges that may be needed in the courts, and the Council holds a competitive examination for candidates. (Candidates with a doctorate of law may be exempt from the exam.) Those who pass the exam enter a three-year period of study at the Institute of Judicial Studies. Following their period of study, the Institute's board prepares a report on each candidate to the Council, whereupon the Council either appoints the candidate or ends their service. The Council may, however, bypass the Institute altogether, appointing candidates directly to the bench following a competitive examination. Appointment by the Council is based upon a proposal from the Minister of Justice. All candidates must be fluent in Arabic and English or French.12
In Egypt, the Egyptian Supreme Judicial Council is composed entirely of judges. The President of the Republic appoints judges, but the Council must approve those appointments. (For the President of the Court of Cassation, the President need only seek the advice of the Council, not its agreement.) Egypt's National Judicial Studies Center does not participate in the appointment process.13
In Kuwait, judges hold six of the seven posts on the Supreme Council of the Judiciary. The Emir appoints most judges subject to the agreement of the Council. Following a proposal or after seeking the advice of the Minister of Justice, the Emir appoints the President and Vice President of the Court of Cassation and the senior presiding judges on the Court of Appeals and the Aggregated Court (al mahkama al kuliyya). If no qualified Kuwaitis are available, the law permits the appointment of citizens from other Arab nations. Pursuant to this statute, Kuwait typically appoints jurists from Egypt.14
Saudi judges are appointed by royal order following a decision of the Supreme Judicial Council. To qualify, candidates must be male, of good moral character, meet the requirements for a judge set forth in the Shari'a, and hold a degree in Shari'a from a Saudi university or an equivalent certificate. Judges are appointed for a one-year probationary term. If deemed competent, they are then appointed for life.15
Yemen's Supreme Judicial Council is headed by the President and includes the Minister of Justice and a Deputy Minister of Justice. All of the other members of the Council are from the judiciary, and they are appointed, directly or indirectly, by the President. The Council appoints most members of the judiciary. The President directly appoints senior members of the courts.16
More briefly, in Algeria, the President presides over the High Council of Magistracy,17 which appoints judges.18 Moroccan judges are appointed by the President, but are nominated by the Superior Council of the Magistrature.19 In Syria, the President presides over the Supreme Judicial Council,20 but he may designate the Minister of Justice to assume those duties.21 The Council includes among its members the Attorney General, the Chief of Judicial Inspection, the Deputy Minister of Justice, the President and the two most senior Deputies to the President of the Court of Cassation.22 Acting upon recommendations of the Minister of Justice, the Council appoints judges.23 Under the Oman constitution, the Sultan appoints and dismisses senior judges.24 Bahrain's Higher Judicial Council proposes judicial appointments to the King, and the King appoints judges. The King also chairs the Higher Judicial Council.25 The latest draft of Palestine's constitution grants the Supreme Judicial Council authority over judicial appointments. 26 The head of the Supreme Judicial Council is nominated by the President and approved by the legislature.27
The issues raised in this discussion regarding appointment to the judiciary - namely, control over the power to make appointments, equal access to the ranks of the judiciary, the quality of those appointed, preparation for assuming the duties of a judge - are quite similar to the issues related to promoting judges. For example, the UN Principles declare that the promotion of judges "should be based on objective factors, in particular ability, integrity and experience."28 In order to measure a judge's performance using those or other criteria, there would have to be some evaluation process. In France, for example, judges are evaluated every two years by the chief judge in their jurisdiction. Judges may see, and contest, that evaluation. All French judges vote for an electoral college that selects members for a promotion committee. The promotional committee compiles lists of those eligible for promotion, and the committee and the Minister of Justice jointly name those judges that are to be promoted.29
B. Training
The education of judges or prospective judges can take place at various stages of their career and come in various forms. Judges may obtain a university legal education, undergo specialized judicial training following graduation from university, work in the courts before obtaining official or permanent status as a judge, and participate in ongoing training throughout their careers. Training may come in the form of theoretical or classroom education or practical training, either engaging in or viewing case studies or working directly with judges, prosecutors, and investigators or elsewhere in public administration or in the private sector. The nature, quality, and rigor of education that judges receive prior to entering the judiciary and throughout their careers is likely to directly influence the nature of judicial decisions. 30
The education regime in France has been widely imitated (the standard career track for judges is outlined above). France's Ecole Nationale de la Magistrature organizes competitive exams for entry into the school, initial and ongoing training for judges and prosecutors, and international training programs. Each year the school enrolls 200 potential future magistrates. They undergo 31 months of training, including 11 months at the school and 20 months working with judges, prosecutors, investigators, private lawyers, private companies, or government offices. In addition, the Ecole Nationale provides some type of training to more than 4,000 judges and prosecutors, offering both theoretical and practical training. More than 1,000 magistrates, lawyers, and other experts offer occasional lectures at the school, and 140 people, including 32 judges and prosecutors, work there full-time.31 One aspect of the Ecole that may be particularly relevant in the Arab world is the ability of the school to provide courses to magistrates from other nations.
Several Arab nations have similar judicial training institutes. Founded in 1981, the Egyptian National Center for Judicial Studies provides initial and ongoing training. Students have six months of practical training in the prosecution office and theoretical classroom training. A comprehensive exam follows the completion of the studies. The school's board is comprised of the Minister of Justice (the chair), the President of the Court of Cassation, the President of the State Council, the Prosecutor General, the head of the State Cases Agency, the Administrative Prosecutor General, the school's director, and four Minister of Justice appointees. Judges, professors, and visiting foreign judges and professors provide instruction. Under the law, the Center may provide instruction to foreigners. The Center also has the statutory authority to provide training for judges during their careers.32
The Algerian National Institute for the Judiciary, established in 1989, provides two years of training for judicial candidates. There are 12 months of lectures and ten months of practical training in the courts. A student's final evaluation consists of a comprehensive examination, an assessment of three reports written by the student, and general performance in the Institute. Students are given a class rank, and appointment to the judiciary is based on that rank. Senior members of the judiciary, professors, and civil servants act as instructors.33
In Morocco, the National Institute for Judicial Studies provides a two-year training program. Students participate in five months of classroom studies, fifteen months working under the supervision of judges in first instance and appellate courts, and five months of further practical training in penal institutions and various entities in the public and private sector, including banks. An oral and written exam follows their training. The Supreme Judicial Council makes appointments based on students' exam performance.34
To be eligible for appointment to the judiciary in Yemen one must hold a university degree in law or Islamic law and successfully complete a two-year training course at the High Judicial Institute, which was founded in 1981. Entrance into the school is based on competitive written and oral exams and an interview. The standard course of study is at least three-and-a-half years, with three years dedicated to civil law and Islamic criminal legislation and at least six months of training as assistant judges or public defenders. Students qualify for each round of training by passing examinations. Following graduation from the Institute, candidates work for two years in the courts before they are appointed judges.35
Naggad Al Bara'iy, an attorney at the Egyptian Court of Cassation, believes that judges today must be educated in a broad variety of subjects, including forensic medicine, psychology, and police work and be able to evaluate the views of experts in science and business. He advocates learning from international experience, and he stresses the importance of well-equipped libraries. Al Bara'iy also favors the specialization of judges.36
To the concerns raised by Al Bara'iy might be added a need for additional training in economics, the standards set forth in international conventions, and ethics. Throughout the world, many business persons complain that magistrates, with their emphasis on statutes, cases, and legal theory, fail to grasp the economic or accounting principles that underlie sophisticated business transactions. Treaties governing international trade and finance, crime, and human rights, among others issues, may directly impact national law and the expectations of foreign investors. As will be discussed below, judicial ethics is an increasingly intricate subject, and magistrates do not easily agree upon the reesolution of ethical conundrums. Training in this area, if not always providing the solution to ethical dilemmas, may help magistrates recognize when they are entering situations that may hold ethical pitfalls.
C. Privileges and Immunities of the Judiciary
There are a number of privileges that frequently accompany service as a judge. These benefits are granted not for, or not primarily for, the benefit of individual judges, but to promote judicial independence. First, individual judges and the judiciary are frequently offered some assurance that they will have sufficient resources to perform their duties. The UN Principles provide that "adequate" pay, pension, and conditions of service shall be protected under the law.37 Under the Beijing Principles, judges "must receive adequate remuneration," and pay and terms of service "should not be altered to their disadvantage during their term of office, except as part of a uniform public economic measure to which the judges or a relevant court, or a majority of them, have agreed."38 Moreover, the Beijing Principles declare that judges or a "competent authority in collaboration with the Judiciary" should prepare the judicial budget.39 Judges or judicial councils may have the right to both submit the judicial budget directly to the legislature and control the disbursement of funds for the judiciary.
Second, secure tenure, or what is sometimes called "irremovability," is frequently provided to judges. In other words, barring some unusual difficulty (e.g., failure to perform duties, incapacity, criminal activity), judges may not be removed from office. Judges, according to the UN Principles, "shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office."40 Third, certain nations grant judges some type of immunity from civil lawsuit or criminal prosecution. The UN Principles advance a prohibition on civil suits against judges for "improper acts or omissions in the exercise of their judicial functions."41 Protection from criminal prosecution is not recognized by international instruments and is primarily found in the formerly communist nations of Eastern Europe. A fourth protection afforded judges in many nations concerns procedural safeguards granted to judges when they are accused of misconduct. These safeguards are considered below in the section on the Development and Enforcement of Ethical Standards.42
A typical example of the manner in which some of these protections are provided to judges may be found in the German Constitution.
Judges appointed permanently . . . cannot, against their will, be dismissed or permanently or temporarily suspended from office or given a different posting or retired before the expiration of their term of office except by virtue of a judicial decision and only on the grounds and in the form provided by statute. . . . In the event of changes in the structure of courts or in their districts, judges may be transferred to another court or removed from office, provided they retain their full salary.43
Transfer, retirement, or removal for disciplinary purposes requires a decision of the German Constitutional Court and the legislature.44
Similar protections are, to some extent, found in the constitutions of some Arab nations. In Qatar, for example, judges "are beyond dismissal, except in cases to be defined by the law."45 Yemeni judges may only be dismissed pursuant to the law, and judges may not be transferred to non-judicial posts without their own consent and the approval of the relevant judicial council unless the transfer is for disciplinary reasons.46 Moroccan judges are "irremovable."47 Similarly, the Draft Palestine Constitution holds that judges "shall not be removed."48
In Arab nations, the executive branch and judicial councils are in a position to afford protection to or to exert direct or indirect pressure on judges. In Saudi Arabia, judges may be removed under the authority of a royal decree following a proposal for removal from the Higher Council of Justice.49 The Saudi Council has 10 members, five appointed by royal decree and five ex officio, the President of the Court of Cassation, a representative of the Ministry of Justice and three presidents of city courts.50 Here the executive has a substantial role in placing officials on the Council that may remove judges. Nonetheless, Professor Nathan Brown finds that "in practice the Council has been an autonomous organization."51
In most Arab nations, the Ministry of Justice plays the predominate role in the preparation of the judicial budget and the control of funds for the judiciary.52 Arab judiciaries usually submit their budget proposals to the Ministry, which prepares the judicial budget that actually is sent to the legislature.53 In Egypt, with its largely autonomous Supreme Judicial Council, the judiciary has a substantial degree of control over funding for the judiciary.54 Yemen's Constitution grants the Supreme Judicial Council authority to approve the judicial budget and insert the budget as a separate item in the state's overall budget.55 These protections do not remove the executive from the budgetary process. The President heads Yemen's Judicial Council and appoints most of its members.56
D. Development and Enforcement of Ethical Standards
While certain ethical standards are widely acknowledged,57 novel ethical issues continue to emerge. For certain longstanding ethical concerns, there is little consensus on the appropriate response of an ethical judge. Judge Sandra Oxner, a leading expert on judicial education and legal reform, observes that judicial ethics discussions "throughout the world have shown that highly respected judges have different views on different applications of the ethical rules," and she cites the case of a senior British judge who misunderstood the conflict of interest rules in a high-profile case.58 This paper will not attempt to define, much less solve, those ethical quandaries. Instead, consideration is given to the creation of ethical standards and to the enforcement of those standards, a topic that directly concerns judicial independence.
Ethical rules may be found in statutes governing the judiciary - often these are fairly broad guidelines - in detailed codes, in decisions adjudicating ethics charges, in unenforceable guidelines issued by a judge's association, or in the unwritten customs of a judicial corps or society. Training in ethics may be a formal part of university education, post-graduate training at a judicial institute, and a judge's ongoing education. Senior judges may also informally offer ethics guidance. An official ethics body (sometimes a sub-committee of a judicial council) may be available to offer advice on specific ethical problems. Judges themselves are often active in the drafting of ethics codes or rules. If ethics complaints result in formal charges against a judge, the body hearing those charges may publish a reasoned decision concerning the charges. Those decisions may contribute to the evolution of ethical standards. Even if ethical problems do not result in formal charges and a hearing, the manner in which ethical problems are formally resolved may be recorded and released. While the name of the judge need not be mentioned, a description of the circumstances and the sanction (i.e., a warning) could be published. While the appropriate response to specific ethical issues will frequently vary depending upon the society and culture where the judge serves, a comparative review of the responses to similar ethical problems may help each nation craft its own approach to particular ethical lapses. This comparative approach may be particularly useful in nations that share similar legal or cultural values or history.
No less important than the substance of ethical norms is the manner in which they are enforced. If authorities outside the judiciary have the power to enforce ethics rules, abuse of that power (or the threat or fear of abuse) may cause judges to hesitate to render decisions in an independent and impartial manner. On the other hand, if judges themselves have exclusive control over their own discipline, a perception may exist that judges are concealing wrongdoing by their peers or failing to enforce ethical rules rigorously.
Regardless of who is given the authority to oversee judicial discipline, many nations attempt to ensure that both those filing complaints and accused judges are treated fairly. A screening process may quickly dispense with frivolous complaints or those that are appropriately dealt with through appeals to a higher court. For more serious allegations, impartial investigators may be given an opportunity to produce evidence. Judges may be given many of the rights of a criminal defendant: to know the charges, to prepare a defense, to examine witnesses, to be aided by counsel, to appeal any rulings against them. Sometimes the body preparing the allegations against a judge also rules on the judge's conduct; in other countries those bringing the charges are separated from the body that determines whether an ethical violation occurred. There is considerable disparity concerning the extent and timing of any disclosure of the discipline process. The entire process - complaint, investigation, hearing, and appeal - may be confidential. Arguably, this privacy promotes the prestige of the judiciary and protects judges from unwarranted assaults on their character. Alternatively, it may be argued that concealing all aspects of the disciplinary process undermines respect for and trust in the judiciary. Particularly in nations where respect for the judiciary is already low, avoiding public scrutiny of the disciplinary process may lead to the impression that little or nothing is being done to curb judicial abuses. Even if the results of an investigation are not to be released to the public, the complainant is often provided with a response to her complaint. Preliminary investigations may be kept confidential, protecting the reputation of the judge when obviously meritless complaints are made. Any hearing might be open to the public, or the outcome of the hearing may be published. In some nations, a description of ethical charges and their resolution is released to other judges, but not to the public.
Several international standards have been issued concerning the discipline of judges. According to the UN Principles:
17. A . . . complaint made against a judge . . . shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.
* * *
19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. . . . 59
France follows these principles. The least severe form of discipline French judges face is a negative evaluation.60 Although not considered a formal sanction, a negative performance evaluation can, at least temporarily, impair a judge's chances for promotion. Discipline issues of greater import may warrant an official warning, which may be imposed by the first president of the relevant Court of Appeal. The warning is deleted from the judge's file after three years if no further warning or disciplinary sanction is imposed during that three-year period. If the relevant chief of a court determines that the problem is sufficiently grave, he or she can refer the matter to the Ministry of Justice. The Ministry conducts an investigation, and if the results of that investigation are not considered particularly serious, the Ministry negotiates a form of punishment (e.g., transfer) with the judge.
If that negotiation fails, either the chief of the court or the Ministry prepares a report on the matter for the Superior Council of Magistrature ("CSM"). On a proposal by the judge's superiors, the Minister of Justice may propose to the CSM that the judge be suspended with pay during the disciplinary proceedings. The CSM, normally headed by the President of France, is headed by the president of the Court of Cassation for disciplinary proceedings. The CSM has two sections, each of ten persons. The section with authority over judges is composed of five judges, one prosecutor, one representative appointed by the Council of State (the chief administrative court, which is part of the executive branch), and three notables who must not be from the judiciary or the legislature. One of these notables is appointed by the President; two by the leaders of the legislature. The judges on the CSM are elected by judges; the prosecutor by the prosecutors.
For judges who have
their case referred to the CSM, the judge has the right to see the charges,
his or her record, and all of the documents of the preliminary investigation.
The judge also has the right to counsel and to call witnesses. The procedure
is private. If the CSM rules against the judge, the CSM will decide on
a sanction. Possible sanctions are as follows: (a) reprimand with a notation
in the judge's file; (b) mandatory change of location; (c) withdrawal
of certain functions; (d) reduction in grade by one degree; (e) retrogradation;
(f) mandatory retirement; (g) dismissal with pension; and (h) dismissal
without pension. A judge sanctioned by the CSM can seek to have that judgment
annulled by the Council of State.
In Italy, as in France, a committee of the Superior Council of Magistrature
("ICSM") carries out discipline.61
Nine members of the ICSM form its disciplinary committee (the "Disciplinary
Committee"). Three are from the legislative appointees to the ICSM;
six are judges. Proceedings before the Disciplinary Committee are similar
to a criminal process.62
The Minister of Justice or the chief prosecutor of the highest ordinary
court may request an investigation into a judge's conduct. If the Minister
of Justice makes the request, he asks the chief prosecutor to conduct
an investigation. The accused judge must be informed of the charges and
the investigation, and he has the right to counsel. Following the investigation,
the chief prosecutor makes a report concerning the judge to the Disciplinary
Committee. If the Disciplinary Committee unanimously concludes that the
evidence does not support the charges, the charges are dropped. Otherwise,
a date is set for a hearing, which is held in private. The decision of
the Disciplinary Committee must be accompanied by a reasoned opinion,
and may be appealed to the Court of Cassation.
The ICSM publishes selected disciplinary decisions in a journal distributed only to magistrates. Information that might identify the judges involved is removed. Discipline through performance evaluations is considered largely meaningless because promotions are based almost entirely on seniority, a point of considerable controversy.
In most Arab nations, as in most civil law nations, control over discipline rests with the nation's judicial council. To the extent that the council is independent, the disciplinary process may also be independent.
While this section focuses on the development and enforcement of ethical standards, it may be useful, in closing, to consider those standards of judicial conduct set down by Ibn Al-Rabi' over a thousand years ago:
A judge should be God-fearing and dignified in demeanor;
He should have sound common-sense and be conversant with the best of judicial literature;
He should bear an absolutely impeccable character;
He should not deliver judgments before he is satisfied that full proof has been laid before him, nor delay judgment when sufficient evidence has been produced;
He should be fearless in awarding what is right and due;
He should accept no present nor hear any recommendations;
He should see no party concerned in private;
He should rarely smile and speak little;
He should accept no favor from any party concerned;
He should take great care to protect the property of orphans. 63
Footnotes:
(1)
While this essay focuses on judges, many of the concerns raised here also
apply to prosecutors, regardless of whether those prosecutors are part
of the judiciary. Back to Text
(2) See John Henry Merryman, The Civil Law Tradition
35 (1985 2nd ed.). Back to Text
(3) UN Principles, art. 10. Back
to Text
(4) Id. The Arab Charter states that "[e]very
citizen shall have the right of access to public office in his country."
Arab Charter, art. 33. The Cairo Declaration has no similar provision.
See Cairo Declaration, arts. 1, 6.Back to Text
(5) European Judges Charter, art. 4. Back
to Text
(6) Id. Back to Text
(7) Id. Back to Text
(8) Maria Dakolias and Kim Thachuk, "The Problem
of Eradicating Corruption from the Judiciary," 18 Wisconsin International
Law Journal 353, 396 (2000). Dakolias is the World Bank official. Back
to Text
(9) Donald P. Kommers, "Autonomy versus Accountability,"
in Judicial Independence at 143-42. Back to Text
(10) Louis Aucoin, "Judicial Independence in France,"
in Office of Democracy and Governance, U.S. Agency for International Development,
"Guidance for Promoting Judicial Independence and Impartiality"
(hereinafter, "Promoting Independence") 78 (2002). Back
to Text
(11) Id. at 74. Back to
Text
(12) This paragraph is based upon Dr. Fathy Waly, Attorney
to the Egyptian Court of Cassation and Professor at Cairo University Law
College, "Norms of Judicial Appointment of Judges in Egypt, Lebanon
and Kuwait" in The Arab Judiciary 45, 47-48. Back
to Text
(13) This paragraph is drawn from Id. at 48 and
from the comments of Hasham Nasr, Judge, Court of North Cairo. Back
to Text
(14) This paragraph is drawn from Id. at 49. Bahrain
also appoints judges on temporary contracts from other nations. Back
to Text
(15) This paragraph is drawn from Report of the Special
Rapporteur on the independence of judges and lawyers, Dato' Param Cumaraswamy,
Civil and Political Rights, submitted in accordance with Commission on
Human Rights resolution 2002'43, Report on the Mission to the Kingdom
of Saudi Arabia, October 20-27, 2002, United Nations, Economic and Social
Council, E/CN.42003/65/Add.3, January 14, 2003, art. 28. Back
to Text
(16) Constitution of the Republic of Yemen, as amended,
September 29, 1994, art. 150 (hereinafter, "Yemen Constitution");
Nathan Brown, Arab Judicial Structures, A Study Presented to the United
National Development Program (written with the assistance of Nida Al-Ahmad)
53 (August 2001) (hereinafter, "Arab Judicial Structures").
Back to Text
(17) Constitution of Algeria, adopted on November 19,
1976, as amended, November 28, 1996 (hereinafter, "Algeria Constitution"),
art. 154. Back to Text
(18) Id. at art. 155. Back
to Text
(19) Tunisia Constitution, arts. 66-67. The Superior
Council of the Magistrature is headed by the President and includes the
Minister of Justice and other Justice Ministry officials. The remaining
members, some of who are elected by judges, are judges or prosecutors.
Arab Judicial Structures at 46. Back to Text
(20) Syria Constitution, art. 132. Back
to Text
(21) Arab Judicial Structures at 43. Back
to Text
(22) Id. Back to Text
(23) Id. Back to Text
(24) Oman Basic Law, art. 42. Back
to Text
(25) Bahrain Constitution, art. 33(h). Back
to Text
(26) Draft Palestine Constitution, art. 165. Back
to Text
(27) Id. at art. 164. Back
to Text
(28) UN Principles, art. 13. Back
to Text
(29) Louis Aucoin, "Judicial Independence in France,"
in Promoting Independence at 78-79. Back to Text
(30) See, e.g., Coulson, A History of Islamic
Law at 164-71 (a lack of training in traditional Shari'a law and greater
familiarity with English law concepts affected the application of Islamic
law in India). Back to Text
(31) The European Judicial Training Network; France:
The French National School for the Judiciary (viewed at
on August 18, 2003). While the Ecole Nationale de la Magistrature is widely
admired, French legal education (like most legal education throughout
the world) has been subject to criticism:
In actual practice, the French legal studies curriculum suffers from a number of drawbacks which . . . call into serious question the pedagogical worth of some aspects of the French university. . . . [T]hese flaws are endemic to any educational system which places so much importance upon strictly academic values and establishes so clear a demarcation between the world of ideas and the real of existing fact. . . . Professors deliver formal lectures, presenting a view of the law, which is not only didactic, but also dogmatic in character. . . . [T]he method of presentation prohibits any attempt to question the fundamental principles of the law, the memorization of which usually is the key to success in the final examination. Moreover, students often complain that the basic instruction is too . . . theoretical to be of any value to them when they leave the university.
Thomas E. Carbonneau, "The French Legal Studies Curriculum," 25 McGill Law Journal 445 (1980). In the 1970s, Germany's law universities received similar criticisms:
[C]urriculum and examination were blamed for the omission of subjects considered important for the proper application of the law. There was a special demand for sociology[, economics, and psychology.]. . . To many, the traditional lectures by professors on subjects already covered by books seemed outdated, promoting a merely passive attitude and stifling creativity. . . .
* * *
[Intensive study of educational reform] led to great changes from the early 1970s on . . . As for teaching methods, there have also been certain changes. Some courses now include visits to courts, administrative agencies or prisons to show law in practice. For some time questions of the professor or students had helped to enliven the traditional lecture.
Wilhelm Kark Geck,
"The Reform of Legal Education in the Federal Republic of Germany,"
25 American Journal of Comparative Law 86 (1977).
Back to Text
(32) This paragraph is drawn from Naggad Al Bara'iy,
Attorney at the Egyptian Court of Cassation, "The Qualification of
Arab Judges based on the French Model: A Comparative View of Selected
Arab Nations and the Implications for Egypt" in The Arab Judiciary
at 28, 34-37, 42 and from the comments of Hasham Nasr, Judge, Court of
North Cairo. Back to Text
(33) Id. at 38. Back to
Text
(34) Id. at 37. Back to
Text
(35) Id. at 39-40. Jordanians seeking to be appointed
judges undergo two years of training at the Judicial Institute, which
was created in 1988. The program consists of one year of classroom training
and one year of practical training working in the courts and the public
prosecution office. Id. at 40. In 1992, the Ministry of Justice
in the United Arab Emirates established a training program for prosecutors
at the Institute for Judicial Studies and Training. The training period
lasts seven months, of which three months is spent in practical training
with the Public Prosecutor's office, and one month is devoted to a research
project. Students undergo oral and written exams. Appointment as Deputy
Public Prosecutors is totally dependent on a student's performance at
the Institute, not age or rank at a student's university. Id. at
38-39. Back to Text
(36) Id. at 27-29. Many highly qualified judges
do not specialize, but given the complex nature of business and other
disputes, specialization may provide a more efficient means to produce
judges qualified to evaluate certain types of cases. Back
to Text
(37) UN Principles, art. 11. Back
to Text
(38) Beijing Principles, art. 31. In the United States,
the Constitution forbids lowering the pay of a federal judge during that
judge's service on the bench. Constitution of the United States of America,
art. III, sec. 1. Back to Text
(39) Beijing Principles, art. 37. See also Universal
Charter of the Judge, art. 14 (The state must provide the judiciary with
adequate funding, and the judiciary "must have the opportunity to
take part in or to be heard on decisions taken in respect to this matter.").
Back to Text
(40) UN Principles, art. 12. Pursuant to the Universal
Charter of the Judge, judges "must be appointed for life" or
for a term and under conditions that do not threaten judicial independence.
Universal Charter of the Judge, art. 8. Further, judges "cannot be
transferred, suspended or removed from office unless it is provided for
by law and then only by decision in the proper disciplinary procedure."
Id. Back to Text
(41) UN Principles, art. 16. Back
to Text
(42) Judges often are granted other rights or benefits.
The law may provide judges specific authority to form associations to
protect their interests and assist in legal and judicial reform. See
UN Principles, art. 8. If necessary, judges are provided physical security
needed to ward off intrusions from parties appearing in court. Further
benefits common to all citizens, such as freedom of expression and association,
are also recognized. But here, judges frequently have fewer rights than
ordinary citizens. For a discussion of limitations on the political activities
of German judges see Donald P. Kommers, "Autonomy versus Accountability;
The German Judiciary" in Comparative Judicial Independence at 131,
137-39. Back to Text
(43) The Constitution of the Federal Republic of Germany,
The Basic Law, adopted on May 23, 1949, as amended, July 26, 2002, art.
97(2). Back to Text
(44) Id. at art. 98(2). Polish judges may not
be detained or arrested unless they are caught in the commission of an
offense and the detention is necessary "for securing the proper course
of proceedings." A judge may be convicted of a crime and imprisoned,
if a court so approves in a manner specified by statute. Constitution
of the Republic of Poland, adopted on April 2, 1997, art. 181. Constitution
of the Czech Republic, adopted December 16, 1992, art. 86. In the Czech
Republic ordinary judges have no constitutionally mandated immunity, but
judges of the Constitutional Court cannot be criminally prosecuted without
the consent of the Senate. Back to Text
(45) Qatar Constitution, art. 134.Back
to Text
(46) Yemen Constitution, art. 149.Back
to Text
(47) Morocco Constitution, art. 85. See also Egypt Constitution,
art. 168 ("The status of judges shall be irrevocable."). Back
to Text
(48) Draft Palestine Constitution, art. 171.Back
to Text
(49) Saudi Basic Law, art. 52. Back
to Text
(50) Dr. Amal Al Fazayri, Attorney at Law, Saudi Arabia,
"Concept of a Modern Judiciary in the Kingdom of Saudi Arabia,"
in The Arab Judiciary, 56, 59. Back to Text
(51) Arab Judicial Structures at 37.Back
to Text
(52) Id. at 8. Back to
Text
(53) Arab Judicial Independence at 10. Back
to Text
(54) Id. at 8. Back to
Text
(55) Yemen Constitution, art. 150. Back
to Text
(56) Arab Judicial Structures at 52. Back
to Text
(57) See, e.g., John T. Noonan, Bribes; The Intellect
History of a Moral Idea xx ("Bribes today are universal; that is,
every culture . . . treats certain reciprocities with officials as disapproved.").
Back to Text
(58) Hon. Sandra E. Oxner, "Quality of Judges: What
impact does recruitment and selection have on the quality of judges?,"
28 presented at a World Bank Conference, "Empowerment, Security and
Opportunity through Law and Justice, July 8-12, Saint Petersburg, Russia
(viewed at on August 16, 2003). Judge Oxner is President of the Commonwealth Judicial
Education Institute and served as President of the Commonwealth Magistrates
and Judges Association. The high-profile case concerned the extradition
of Chile's Augusto Pinochet. Another examples of the unintentional violation
of ethics rules occurred when one United States judge spoke at a fundraising
charity for a hospital. The disciplinary committee overseeing the judge
issued a formal warning to the judge indicating that a judge should not
use the prestige of his judicial office for the benefit of any private
party, even a charitable venture. Back to Text
(59)UN Principles, arts. 17, 19-20. The Universal Charter
of the Judge expresses similar concerns for fairness in the discipline
process, and adds this additional standard concerning the body to manage
the discipline process:
Where this is not ensured in other ways that are rooted in established and proven tradition, judicial administration and disciplinary action should be carried out by independent bodies that include substantial judicial representation.
Universal Charter
of the Judge, art. 11. The Judges Charter in Europe goes even further
concerning the composition of the disciplinary body: "Disciplinary
sanctions for judicial misconduct must be entrusted to a body made up
of members of the judiciary . . . ." European Judges Charter, art.
9. Back to Text
(60) Jacqueline Lucienne Lafon, "France," in
Mary L. Volcansek, "Judicial Misconduct; A Cross-National Comparison,"
35 (1996) (hereinafter, "Judicial Misconduct"). The material
concerning judicial discipline in France is drawn from Specific quotations
will be cited, but all information in this section on French disciplinary
procedures is drawn from Jacqueline Lucienne Lafon, "France,"
in Judicial Misconduct at 20-49, and the French Constitution. The disciplinary
process for prosecutors is similar to the process outlined for judges
who decided cases, but the Minister of Justice plays a greater role in
determining disciplinary measures for prosecutors. Back
to Text
(61) The material concerning judicial discipline in Italy
is drawn from Maria Elisabetta de Franciscis, "Italy," in Judicial
Misconduct, pp. 49-66, and the Italian Constitution. Back
to Text
(62) Italian judges also can be prosecuted for actual
crimes and face civil liability. Back to Text
(63) Muhammad Tal'at Al-Ghunaimi, Professor of International
Law, Alexandria University, "Justice and Human Rights in Islam,"
in Gerald E. Lampe, ed., Justice and Human Rights in Islamic Law 2 (International
Law Institute 1997). Back to Text