WRAP-UP
UK:
· Expansion of judicial review three key RIGHTS areas (local to executive)
· Politicians (non-judicial actors) using courts judicial forms/methods/processes
· Judicialization occurs many contexts
ARTICLES:
· Creation of new court in 1971 (to deal with trade issues)—questionable independence—seemed to be a tool of politicians at worst, dubiously linked political body at best (Chinwe)
· Arguments that Parliament is better suited to take care of human rights that courts—Parliament closer to the people—and fits public expectations (Andrew)
· Creation of new Supreme Court movement judicial independence as prescribed by the European Convention on Human Rights (civil only) (Jason)
· Normative argument (bit dated now) judges must maintain Rule of Law and the Parliamentary supremacy by requiring officials to show legal authority and by creating standards (Kenneth)
UNITED KINGDOM
ADDS TWO OTHER DEVELOPMENTS TO VALLINDER’S DEFINITION
(Vallinder—the expansion of the province of the courts at the expense of other actors or the spread of judicial decision-making methods outside the judicial province)
· Increasing use of law to define, contain and control LOCAL GOVERNMENT
· Increasing emphasis placed upon law and legal procedures in central government administration
THESIS: the courts are now drawn into local and central government politics
THREE CONTEXTS (Court of Appeals) extension of judicial review
1) Prison: prisoners couldn’t appeal disciplinary practices or unfair treatment—supported in part the European Court
2) City Regulation: decisions by city panel on take-overs and mergers could be reviewed—were government bodies and were operating on the fringes but not publicly accountable
3) The Royal Prerogative: prime minister’s prerogative powers COULD be reviewed
Had demanded civil service workers tender their labor union membership
Didn’t matter the SOURCE of the power but the NATURE of decisions being made
RULED decisions UNFAIR but justifiable under NATIONAL SECURITY issue
BALANCED, STRATEGIC DECISION
THREE CONTEXTS where politicians use JUDICIALIZED forms
1) central administrative government senior managers: Training programs and emphasize legal awareness and drafting careful policies
2) government was using the law to local governments (especially Labor controlled one)—placing contentious issues pushed into courts controlled by Tories
3) SOCIAL FUND commissioner (and inspectors)—no procedure for appeals of decisions
GOVT wouldn’t agree to court appeals
BUT set up internal system of review similar to judicial review
USE OF RULES and PRINCIPLES developed by the courts—AND
ADJUDICATIVE techniques
CONCLUSION: judicialization occurs in many contexts, does not necessarily increase accountability or legal rationality
VERY THIN SUPPORT!!!!
AUSTRALIA
CABINET SECRECY AND PRIVACY
Change from previously accepting that cabinet papers were a special class immune from compulsory disclosure in judicial proceedings
MAJOR ADVANCE IN JUDICIALIZATION—into a very sensitive area
“Judicialization from without”
Judicial review is well-entrenched in its constitution
Complemented with judicial review of administration action
BOTH serve as a counterbalance to EXECUTIVE DOMINANCE
HISTORICALLY:
Colonial Australia the courts eschewed review of cabinet and departments of state
PROVISIO: exempt if the public official claimed that disclosure would be injurious/detrimental to public interest
Marconi’s Wireless Telegraph v. Commonwealth (1913)
JUDICIAL DEFERENCE: zenith during war
The executive’s assessment of public interest was conclusive
(minister or head of department)
Cammell Laird (1942)
Griffin v. South Australia (1925)
POST-WAR whittle away:
Conway v. Rimmer (1968)
Overturns Cammell Laird
Right of courts to assess document related to public interest
By the 1970s courts: it was allowed to have documents produced before the courts
BUT primarily deferential to CABINET and their exemption of documents
SELF-IMPOSED JUDICIAL RESTRAINT
CHANGES IN 1978 (follows transition to the Labor Government)
Sankey v. Whitlam (1978)
NO CLASS OF DOCUMENTS EXEMPT FROM JUDICIAL REVIEW
Courts determined the balance of public interest
No so-called absolute privilege
Courts in series of cases begin to consolidate this power
CONCLUSION:
CONTEXT: time of increasing concern about executive dominance
COURT—bold extension of its power--serves as a counter-balance
Fits with larger pattern of increased judicialization in Australia
AUSTRALIA SUMMARY POINTS
Sharing of functions: Administrative agencies and judiciary that raises
issue of separation of power v. efficiency—self-regulation and
accountability-2 proposed solution—JR of private bodies and
amendment of SOP clauses to allow agencies this quasi-jud function
(Susan)
Privy Council: Executive advisory committee (linked to monarchy) is final source of appeal—changed over time, with High Court being GIVEN more and more final control (constitutional issues etc) except cases of state jurisdiction (Courtney)
Judicial Conference: Judges organizing to look out for their interests. Under attack by government actors. Just an association not an administrative body like in the U.S. INTEREST GROUP. (Michelle)
Judicial Review: has not lead to a politics of rights (lacking bill of rights) (Noah) (David as well)
Free Speech: High court ruled that speech implied in constitution even if no bill of rights (representative system of government). (Eduardo)
CANADA
FOCUS: JUDICIALIZATION FROM WITHOUT
GENERAL TENDENCY: to insistent on JUDICIAL STYLE due process in EVER BROADER range of state behavior/action
Movement away group/larger society meaning more than individual to INDIVIDUAL rights being important
Increasing justiciability of rights>>Charter of Rights and Freedoms NEW DOSE of JUDICIALIZATION without
HOWEVER: judicialization NOT at the expense of the legis and exec like Vallinder says
INSTEAD more of a transformation of the nature of political life
Judicialization has been limited not as he predicted
CONSTRAINTS on JUDICIALIZATION:
Not very effective: LEGISLATIVE OVERRIDE clause
Put in BofRights to limit power of judicial review—PROVINCES
Legislature can pass laws that violate certain rights for a period of
five years…with a simple majority vote (can be renewed)
“Write notwithstanding clauses”
REALITY: rarely used except in QUEBEC (only once outside Quebec)
QUEBEC—USED IN “MASSIVE WAY”
Applies to all past and new legislation>>DONE AS PROTEST
Quebecois did not give its consent>>all expired in 1987
***1988 SCT rules that Bill 101 requiring French-only advertising signs
violated the freedom of expression
Quebec assembly overrode the SCT decision
ANGLOPHONE reaction so great that MEECH LAKE ACCORDS failed
KEY POINT: CONSTITUTIONALIZING RIGHTS changed civic
Consciousness about rights
BEFORE: English only signs no big deal to English Canada, now
discourse has changed and taken on a moral tone—violation of my
free speech rights
INDIVIDUAL FREEDOM trumps—no longer necessary to consider the
Quebecois beliefs about cultural integrity—DISCOURSE cut off
NOW English Canada sees the override as TAINTED clause—
Constitution not worth the paper it’s printed on (Mulroney)
LONG TERM IMPACT: way Canadians view their rights (priority)
Human rights discourse
MOST IMPORTANT CONSTRAINT ON THE CHARTER’S TENDENCY TO
PROMOTE JUDICIALIZATION FROM WITHOUT: ITS LIMITED POLICY
SCOPE
Primarily affects criminal justice cases.
And language cases of Quebec
COURT hasn’t applied to significant policy issues: economic and
social, monetary and fiscal policy, welfare, education, labor, etc.
CHARTER RIGHTS:
Don’t include property rights
Can only be claimed against government action
Most problems stem from private sector actions
COURT SELF-RESTRAINT:
SCT only supported rights claims 35% in its first 100 Charter decisions
Overtime only cautiously applying the Charter
SUMMARY ARTICLES:
Charter of Rights: The SCT has generally been deferential to executive in social and fiscal policy, but in terms of criminal justice using the limiting concepts of avoidability and consistency in most issue area—less burdensome ways to achieve political objectives—must be consistent with the way similar persons were treated in the past. Low standard rational basis. (Colby and Amy)
Appointment process: PM and Minister of Justice have no legislative check on judicial appointments—no transparency/hearings etc. Canadian Court is not as independent as it appears on the surface. (Amy).
Legal arguments: that court has the power of judicial review in Section 33 legislative override—that the court is the only appropriate body to review these overrides. (Etheridge)
Power of government to refer issues to the Courts: Used not only to push difficult issues on the court off the legislature, but also to get the court’s stamp approval to gain support for the legislation.
Issue of Sunday closings:
ITALY
JUDICIARY IN DEMOCRATIC REGIMES:
(UK, US, FRANCE, GERMANY)
COMMON FEATURES:
1) judges recruitment process: influenced by political environment
common law (political branches directly involved in appointment process)—Lord Chancellor and Prime Minister or U.S. president
civil law countries (public competition, civil service process through ministry of justice, answerable to executive)
judges cannot be too much out of step with prevailing political values/actors in the systems
2) function of PROSECUTION: entrusted to magistrates or officers responsible to other government bodies or voters themselves
prosecutors and judges are not in the same structural organization
US: Justice Dept—exec/prosecutorial totally separate from judiciary—but SG has special relationship
GB: Crown Prosecution Service
ONLY in France are prosecutors part of the judiciary—directly responsible to Minister of Justice (different than US)
Judiciary lacks the ability to be self-starter—or regulate fully the demands on the courts>>PASSIVITY OF JUDICIARY
Judges in CIVIL LAW systems have less organizational independence—from other branches and LESS internal independence—from other judges
1) selection through examinations with no link to previous nonjudcial experience
2) professional training occurs within judicial body
3) hierarchy of ranks—movement based on merit—which is determined by those higher up in the ranks
ITALY: EXCEPTIONAL CASE?
ITALY—HIERARCHICAL MODEL
Higher Council of the Judiciary: self-governing body of judges
2/3rd judges elected by judges
1/3rd lawyers or law professors elected by parliament
Status of magistrates and prosecutors protected constitionally
SYSTEM of PROMOTION: series of laws that dismantled traditional system of promotion (impetus—judges association)
TODAY:
Threshold of seniority required to compete for promotion of different ranks
Competition no longer based on written or oral exams or examination of judges’ written work as was before
INSTEAD: GLOBAL (overall) assessment of candidate’s judicial performance broadly
Guarneiri believes in effect means ALL candidates are promoted
PECULIAR JUDICIAL SETTING emerged in Italy:
CIVIL LAW METHODS OF RECRUITMENT (young inexperienced lawyers) but INSTEAD of assuming they are not sufficiently reliable, therefore require more training, testing, and etc.
They are given INDEPENDENCE like in common law systems but COMMON LAW systems typically draw in MATURE persons with some level of experience.
1) Traditional features of judicial organization MODIFIED
a. Internal hierarchy completely dismantled
b. Model of recruitment (exclusively from the bottom—no lateral entry) NOT changed
c. Training handled internally—but judicial elite no longer control the process
i. Young magistrates given judicial functions and competence is not subject to later evaluations
ii. More like Anglo-Saxon systems
CONCLUSION: Both judges and prosecutors have
INTERNAL and EXTERNAL independence
Less and less constricting
All decisions related to them are made only by a body which is controlled by 2/3rd of OWN COLLEAGUES—no bureaucratic controls
AND YET THE RECRUITMENT AND SOCIALIZATION IS COMPLETELY REMOVED FROM THE POLITICAL PROCESS
STATUS of public prosecutors are identical to JUDGES—not subject to political forces
CONSEQUENCES of ITALIAN SYSTEM:
INCREDIBLY STRONG CONNECTIONS BETWEEN THE JUDICIARY AND THE POLITICAL ENVIRONMENT
Internal factions in judiciary organized based on ideo/parties and achieved changes to the Higher Council
Magistrates do not uphold the traditional judicial role
Appointment to the Higher Council is now on a proportionate basis for political parties—competing lists of candidates
No hierarchical controls within—no objective criteria for evaluating magistrates for appointments and promotions
These result from bargaining among the factions and parties (judges on one hand and the lawyers all appointed on party lines)
ROLE of parties and factions play into the logic of decisions—judges must take into account these processes that affect their careers
EVIDENCE: personal ties hard to document but anecdotal and lack of substance in corruption investigations of politicians
Magistrates careers moving into politics—increasing number go on to join parliament
Magistrates were able to affect change because of the divisive nature of Italian political parties—coalitional governments with strong Communist and socialist opposition
ACQUIESCED to the demands of the magistrates’ association
POLITICS AND JUSTICE:
JUDICIAL INDEPENDENCE TRADITIONALLY AIMED AT TWO GOALS:
1) protect impartiality of judges and thereby defend the rights of citizens (civil law mostly aimed at this)
guarantees of JI are normally limited
2) —and in some cases make the judiciary a check on the other branches (really in the US only the check on branches)
Guarantees of JI are stronger
PARADOX OF ITALIAN JUDICIARY:
Enjoys high degree of institutional independence but its autonomy of action is rather limited.
traditional bureaucratic set-up but institutional setting is one of consensual political regime
BUREAUCRATIC mode of recruitment but the traditional means of control gone—does NOT facilitate the acquisition of PROFESSIONAL COMPETENCE and VALUES
In the magistrates
BUT rather stimulates their affiliation with factionalized unions/parties…strong political connections constrain their autonomy or actions
ARTICLE SUMMARIES:
Judiciary is inefficient and lacking access. Too long to get to trial and too many appeals. Not enough judges and lawyers. Don’t understand why? (Erin)
Selection of judges and constitutional court: Need to read articleXXX(Erin)
Selection (Lindsey): number of vacancies lead to advancement of candidates with only minimal scores and have only an apprenticeship of half a year. Also, judges get promotions and raises totally on seniority and without increases in responsibility.
Five positions evolved through political connections: class collusion, interest collusion, ideological identification, role substitution, and institutional impartiality—recently a growing fraction of judges embracing the role substitution—believing it is their job to stem growing judicial corruption. (Judd)
FRANCE
REACTION: King held legis, exec, and jud powers
Could delegate to upper parliament who issued statutory decisions that established rules (Arrets de reglement)—in effect making law
Ancien Regime—feared the power of upper house—judges
LEADS to Montesqui—SOP theory
SOP—adopted in the Rights of Man and Decree of August 16-24, 1790 forbade arrest—aimed at limiting judicial power
JUDGES only apply law not make it—apply it even if think UNCONSTITUTIONAL—should refer the issue to Parliament
NAPOLEON: 3 key changes
1) Codification of private law, commercial law, and criminal/penal law
2) Set up a two-jurisdictional hierarchy (regular: civil—non-governmental and administrative: govt actors and citizens)
3) Supported principle of SOP (ignored de facto)
FEAR JUDGE-MADE LAW (non-specialist, retroactive, unstable, chance…)
FOCUS: CODIFIED law over judge-made law (WHICH CAN AVOID THE MISCARRIAGE OF JUSTICE) but overtime the advantages of judge-made law outweighed
CIVIL JURISPRUDENCE: JURISPRUDENCE CREATIVE OF LAW IN ADDITION TO LAW:
Civil jurisprudence rooted in legislation: in theory all judge has to do is apply the law
REALITY: judge may be obliged to interpret the law
AUTHORS of CIVIL CODE: unable to anticipate every circumstance and to create a rule for each
Give the judge a GENERAL FRAMEWORK—key principles—reference points to help judges make decision
LAFON argues that in a way framers anticipated the judge’s creativeness
Judge-made Civil Law: The Technical Approach
Reasons, methods, conditions explain judges create law:
1) Law terms unclear (for example, “fault”)