My purpose here is to talk about the independence of justice and by corollary the independence of judicial officers. Justice and its independence constantly cause nourished and impassioned debates. Admittedly, the subject is sensitive since it touches at the same time law and the judiciary, politics and its users, society and its citizens.
Curiously, any approach on the independence of justice is invariably declined towards two other subjects: the independence of the judicial power and that of the judges.
I - Independent Justice or Independence of the Judicial Power?
A) The Concept of Independent Justice and Independence of the Judicial Power
The concept of independent justice and judicial power is comprehended in a confused way by a public which has difficulties to dissociate them. However the distinction is of importance.
... To speak about justice is to apprehend the system as a whole. Justice, in its traditional meaning, is a body of judges, but also of auxiliaries and judicial officers. It is a whole material organisation and it is an overall system at the service of the public!
Justice can be multiform. Thus it can have a scientific connotation: civil, penal, military or international. Justice is not only that of the judges and the lawyers. It can, indeed, be of a philosophical, religious or clannish nature. Justice is also a common act of the everyday life, such as repairing the injustice of having unevenly shared the cake between children... the topic of the independence of justice is very extendable. Consequently in this context, the logic commands us to turn to the independence of the judicial power.
Since Locke and Montesquieu in the 17th and 18th centuries, the concept of State takes as a starting point the theory of the separation of powers between the legislature, the executive and the judiciary. However, Locke (1690) made the distinction in the variation of the powers, as to distinguish between the legislative power, the executive power and the federative power or the capacity to start a war and to sign treaties. Montesquieu (1748), however considered as the inspirer of the three powers, stated in his “Spirit of the laws”: “There are in each State three kinds of powers: the legislative power, the executive power of the things which depend on the law of nations, and the executive power of those who depend on the civil law”. This hesitation to sanctify the judicial power and its independence has lasted ever since. Thus, in France, the Constitution of 1958 only instituted, next to an executive power and a legislative power, a judicial “authority”.
Moreover, as it was pointed out recently by a high-ranking judge at the time of an international conference, “the independence of justice is always proclaimed but remains subjected, in many countries, to the omnipotence of the sovereignty of the State”.
It will be noticed that the terms of “independence of the judicial authority” and of “independence of justice” are indistinctly employed.
This persistent confusion does not influence the heart of the matter, i.e. the nature of the relations between the executive and the judiciary.
B) The Independence of the Judicial Power
The mutual intrusion of the two powers - executive and judicial - in their respective spheres of influence is often stigmatised. The political State speaks about “the power of the judges” while the judges denounce “the interventionism of the State”. In fact, all depends on the applicable mode and the concept which one adopts, which postulates for two options:
- one which founds a true judicial power where the president of the Supreme Court is at the same time the chief of the highest jurisdiction and the manager who governs the functioning of all the legal body. He enjoys a great autonomy and occupies a hierarchical row in the State, equal to that of the chief of the government.
- the other which institutes a supreme jurisdiction: the Supreme Court of appeal which function only consists in judging in law. At his side is a minister of justice who has high capacities in the legal organisation and in the appointment of the judges, particularly those of the public prosecutor's department. A Council of judges decides of the career of the judges and a Constitutional Council ensures the respect of the constitutionality of laws.
This formula is far from giving satisfaction, because it unceasingly calls into question the fine line between the political power and the independence of the judges.
II - The independence of justice: a constitutional value shared between the judge and the judicial officer
The independence of justice cannot be understood under the only benefit of the independence of the judicial power, in other words the capacity of the judges.
A) The independence of the auxiliaries of justice and the members of the legal profession: a necessary complement
In a conference relating to the independence of justice, Mr Abderham Diouf, prosecuting attorney at the Supreme court of appeal of Senegal, declared: “The independence of justice is about the independence of the judges and its natural corollary: the lawyer”.
In same time, Mr. Ancel, president of a chamber at the Court of cassation of Paris stressed that the independence of justice was to go beyond the judge to take into account two consubstantial elements:
- the access to the judge,
- the specific enforcement of judgements.
It is understood that under the only angle of the judicial power, the concept of independence of justice appears very reducing.
... And as a matter of fact, the work of justice does not stop with the intervention of the judge, nor even when the judgement is given, which makes the professor Duple, of the University of Laval in Quebec, state that “the concept of the Rule of Law rests on the principle whereby the judge has as a function to judge, lawyer to represent the parties” and, would we add, judicial officer to carry out court decisions.
This last precision leads us to add the following remark. Too many times it is considered that justice has fulfilled its role once the judgement is given. The judges themselves do not mark but a minor interest in the fate of their decision and rare are those who wonder about the capacity of the parties to even understand or to interpret their judgements. More seriously, enforcement only causes a very minor interest. Fortunately, things are changing... Gradually the political sector, the legal world, as well as the economic operators express an increasing concern about enforcement of legal titles.
Initially, it is the European Union which put on orbit, since the Council of Tampere in 1999, the area of freedom, security and justice and published not less than seven European instruments concerning enforcement and judicial procedures. Then, it was the turn of the European Court of Human Rights which, by the means of article 6.1 of the European Convention on Human Rights, posed the principle, in the wake of the Hornsby v. Greece case of March 19, 1997, of a right to an enforcement of judgements, which turned, due to the evolution of jurisprudence, into a true autonomous right of enforcement. Finally, the Council of Europe, under the terms of a Recommendation of September 9, 2003 (Rec2003(17)), proposes the implementation of common standards in the field of the trans-national enforcement and which in addition delivers a catalogue of normative measures intended to promote a harmonization of the statute of the European judicial officer.
B) The liberal judicial officer: and independent actor essential to an independent justice
The aim set by the Council of Europe is to support - it is a truism - the creation of an occupation of judicial officer, if not uniform, at least harmonised on the basis of common standard. This concept of the judicial officer is to be compared to the doctrines of the UIHJ which preaches the introduction of a statute of the liberal and independent judicial officer. In this respect, let us recall that the whole of the national chambers or orders of judicial officers of Africa of the OHADA zone, which represents 16 Member States, filed in under the aegis of the International Union a project of unified statute, conceived according to the criteria of independence and freedom of exercise such as mentioned.
As it was many times proved, the liberal and independent judicial officer is a pledge of independence of justice. What would be a justice which would be proclaimed independent if the judgements, once given, were to pile up in the cupboards without being carried out? The question is not an innocent one. The facts are actual and known.
A State which does not ensure the enforcement of its judgements is a State which weakens its legal security and cultivates the grounds for corruption and discourages economic operators. To guaranty an effective and quality enforcement the liberal and independent judicial officer becomes, consequently, an essential element of the judicial chain. The judicial officer, like the judge, must be independent: i.e. independent from the power, and safe from all sources of influence. An independent judicial officer is submitted to no hierarchy. He must only yield with his authority of discipline and act under the control of the Public Prosecutor's Department. The judge should not interfere in the action of the judicial officer because his prerogatives must be limited to judge litigations and to take measures when seized.
The procedure of execution must be left to the free will of the parties. For a justice to be worthy of its independence it is important to proscribe any interference between the executive power and the judicial officer.
It is intolerable that today still, in a number of countries, the authorities of the State, with the contempt of the principle of the separation of power intervene under fallacious pretexts, to stop the course of enforcement or to modify its range. It is inadmissible that members of government of a State, which presents itself as a strong promoter of democracy, Rule of Law, and Human Rights, can suspend or dismiss judicial officers who refuse to yield to the pressure to draw up an illegal act.
It is necessary to condemn with the most extreme strength the decisions of governments which unilaterally issue the extinction of all the enforcement procedures, or which push the population to resist the injunctions of the judicial officers. How many of our fellow-members had to undergo vexations, sanctions, or even were imprisoned for having resisted intimidating and unlawful manoeuvres, whereas they were only concerned about fulfilling the noble mission which fell to them: that to carry out a judgement for the people or the Republic. Yes, the independence of justice passes by the respect of the given decision and a full support for the judicial officer who is the only agent in charge of the operations of enforcement. To deny this would result in ignoring the decisions of the European Court of Human Rights, proclaiming in a case of June 22, 2004, that the judicial officer “is an essential element of the Rule of Law”.
Lastly, and such will be my conclusion, where court decisions remain dead letters for lack of a body of liberal and independent judicial officers, there comes insecurity and there settles private justice, in other words the laws of the strong against the weak and of the powerful against the impecunious. The un-enforcement of decisions then becomes a true attack against democracy.
To reach a true independent justice, it is thus advisable to have not only an independent judicial power but also an independent and liberal body of judicial officers.