Speech by the Vice-President of the Constitutional Court Sanita Osipova at the international conference in Andorra
Andorra 12.07.2018.
The Financial Security of Judges in the Context of the Principle of the Separation of Powers
I shall start with the very foundations: as Charles-Louis Montesquieu once said, political liberty appears in countries where there is no place for the abuse of power, but constant experience shows us that every man invested with power is apt to abuse it and he is inclined to stretch it to perpetuity. Here I can conclude that also today we can say, in general, the same – power continues to be the test that not all are able to pass.
With the Constitution of the USA, which in 1798 introduced into the structure of the state the threefold division of the state power by Montesquieu, the judicial power was constitutionally consolidated as an independent institutional and functional branch of the state power. Thus, on the one hand, a foundation was laid for a democratic state governed by the rule of law, the model of which, in different variations, was introduced in many countries of the world during the 19th and 20th centuries. On the other hand, since the end of the 18th century the legal doctrine and also the judicial power themselves have constantly fought to achieve both real independence from and equal authority with the legislator and the executive.
Even today the courts still have to remind the other branches that the three powers are not arranged vertically, with the legislator on top, but horizontally, with each of the powers performing its functions within the scope of authority granted to it by the sovereign, the people. It was highlighted already by Georg Jellinek at the turn of the 19th and 20th centuries because this requirement follows from the principles of the separation of powers and a state governed by the rule of law. The principle of the separation of powers includes also the requirement that the constitutional bodies, which are equally important, should show mutual respect and mutual loyalty.
The parliament and the government are the bearers of the political power, whereas the task of the court is to be neutrally apolitical. This significant difference, to a certain extent, sets for the court different “rules of the game”, compared to the parliament and the government, inter alia, regarding the right to affect its remuneration and the principles in accordance with which this remuneration is set. Therefore both other powers must understand the need for an independent judicial power and its role in a state governed by the rule of law, at the same time taking into consideration that a judge’s independence differs from that of a member of the parliament. It is a complicated task, even more so because for a judge to take up office he has to meet the requirements set for education and experience, whereas the parliament and the government is formed by the people, in the selection of which the sovereign relies on the personal traits of the candidates, their public reputation and charisma, rather than experience and education.
A state governed by the rule of law does not exist if the principle of the separation of powers is not complied with, as the implementation of this principle leads to the establishment and functioning of an independent, qualified and responsible court. Today, I want to examine the implementation of the principle of separation of powers from one, rather narrow, perspective which is the perspective of judges’ financial security, turning to the system of judges’ remuneration. The choice of the topic was determined by my experience in the office of a judge of the Constitutional Court. Having worked at the Court for 6 years, I have participated already twice in the so-called “judges’ salaries cases”. In total, during its 25 years of existence the Constitutional Court has examined 4 cases regarding judges’ salaries. Basically, examination of the constitutionality of judges’ remuneration means reviewing, on the one hand, whether the judges’ work is appropriately remunerated so as to guarantee the independence of the judiciary, but, on the other hand, the other aspect that needs to be examined is the requirement of the separation of powers and the balance of the state powers. Namely, in this case it must be examined whether the judges’ remuneration is appropriately correlated with the remuneration paid to the officials of other constitutional bodies: members of the parliament and members of the government.
Acting as the judge rapporteur in the most recent case of judges’ remuneration, I found that at least one such case had been adjudicated in almost every country. It is interesting that the cases of “judges’ salaries” have been examined not only in the new democracies of Europe like Latvia, Lithuania, Slovenia, and Poland, but also in countries with considerable experience of democratic legal culture and implementation of the principle of the separation of powers, for example, in Germany. All this visibly outlines the existence of a common problem, at least in the model of the separation of powers implemented in the continental European democracies (I have not conducted a more extensive research). At the same time, it must be emphasised that in all the countries I have referred to the principle of separation of powers is duly implemented because it is exactly the proper implementation of the principle of separation of powers that has ensured the possibility to resolve the threat to judges’ financial independence, because this problem was brought before and resolved by the constitutional courts.
I shall share Latvia’s experience in examining the two issues referred to before:
1. Whether the judges’ remuneration ensures the independence of judges;
2. Whether in determining the judges’ remuneration the requirement to ensure the principle of checks and balances between the state powers has been complied with.
The first three of these cases, that is, the case adjudicated by the Constitutional Court on 18 January 2010, the case adjudicated on 22 June 2010, and the case adjudicated on 28 March 2012, were linked to the legislator’s activities during the period of a rapid economic recession. However, the judgment of 26 October 2017, was adopted when the economy was already stabilised and was improving.
Within the period from the end of 2008 until 2010, the legislator in Latvia, but not only in Latvia, was looking for a way to stabilize the national economy by rapidly decreasing the state expenditure. The solutions had to be found immediately and there was no time to sufficiently examine and discuss them; therefore the possible threats to ensuring the principle of checks and balances between the state powers, as well as the limits to permissible restrictions of fundamental rights were not always given due consideration. During the period of economic crisis, the Constitutional Court was overloaded. We were overrun by applications based on the legislation adopted by the legislator during “the time of crisis”. The Constitutional Court continues to examine cases based on the restrictions to a person’s fundamental rights established during this period, although it has repeatedly recognised that in a state where the economic situation has stabilised it is the legislator’s obligation to re-examine the validity of restrictions on fundamental rights established in the circumstances of economic recession.
The judges’ remuneration fell within the general flow of budget savings, alongside decreased benefits and pensions, prohibition to pay bonuses to civil servants, et cetera. However, the Constitutional Court did not examine this problem only from the perspective of judges’ fundamental right to appropriate remuneration for their work, even though these cases were initiated on the basis of a constitutional complaint submitted by judges. The Constitutional Court examined the judges’ remuneration in terms of judges’ independence, in 2010 mentioning for the first time in the case-law of the Constitutional Court the judges’ financial security as one of the safeguards of the independence of the judiciary, stating that “by decreasing judges’ remuneration the legislator can exert political influence on the judicial power by using economic manipulations.” I would like to emphasise that the Constitutional Court called for a careful assessment of the system of judges’ remuneration not for a simple increase, because, as it is stated in the judgement: “[..] unmotivated increase of the judges’ remuneration could also be considered as influencing the judicial power.” The Court recognised that a judge’s financial security also meant that a judge was sure that the remuneration established for him upon commencing performance of his duties of office would not be subsequently decreased. This is a classical finding which has been built into the foundations of the independence of the judiciary already in the Constitution of the USA. Whereas the 20th and 21st centuries have brought into our minds the awareness of the impact of inflation upon the judges’ remuneration, therefore the Constitutional Court included in its judgement another aspect to the financial security of judges, which has been recognised in the case-law of other countries: “if the costs of living increase, there should be an appropriate increase [of the judges’ salary].” The judgements of 2010 explained to the legislator that an automatic mechanism for calculating the remuneration for judges’ work should be included in the law that would ensure that remuneration was adjusted. The Constitutional Court explained to the legislator the criteria, the compliance with which could ensure that judges were entitled to remuneration that guaranteed their independence. Another concept that follows from the concept of judges’ financial security appeared in this judgement – the actual value of judges’ remuneration; that is, that the remuneration should ensure that a judge’s standard of living would not change in the wake of economic fluctuations.
It has already been established in the case-law of European constitutional courts that the principle of a judge’s financial security requires the state to set such remuneration for a judge’s office that would allow him not only to provide adequately for himself but also for his family. The Constitutional Court of Latvia recognised that: “…, the actual value of a judge’s remuneration is to be understood as the relative value of remuneration – the ability to ensure a certain standard of living. Whereas a judge’s financial security is not jeopardised only if the remuneration that a judge receives allows him to maintain an appropriate standard of living and to provide for the welfare of his family.”
Moreover, a judge’s remuneration should be examined in interconnection with restrictions imposed on combining offices which for judges traditionally have been rather strict. Thus, in the case of 2015 no. 2015-10-01 and in the case of 2016 no. 2015-22-01 the Constitutional Court examined restrictions on combining offices for a judge, that is, the right to provide assistance to a family member with special needs and to receive remuneration for it, which was not referred by law as one of the additional jobs allowed for a judge. In families where the only person capable of working was not a judge and when it was impossible to hire a professional assistant for the modest remuneration granted by the state, the assistance was provided by the members of the family themselves, concluding a respective agreement with the municipality. The judges, however, were prohibited by law to do so. The Constitutional Court, in examining the restriction from the perspective the principle of equality, concluded that “the contested norm, as to its nature, is neutral, in that it does not envisage differential regulation with respect to persons who are in different situations; however, it gives rise to a restriction on the petitioner’s equal rights.” The Constitutional Court held that the norm was incompatible with the Constitution because it was not appropriate for achieving the legitimate aim – preventing a conflict of interests.
When viewing these cases outside the function of the administration of justice, in terms of compliance by the principle of judges’ financial security, it can be concluded that:
1. both applicants were judges of a first instance court, for whom the salary for providing the assistant’s services to a family member with special needs was a matter of the family’s subsistence. A situation like this, in which a judge, without receiving additional financial resources, is unable to support a family member with special needs, might jeopardise the independence of courts;
2. strict restrictions have been imposed on every judge with the aim of ensuring to other persons the right to a fair trial; however, in 2015/2016, these restrictions were not proportionate with the judges’ salary and social guarantees. Thus, the state, by eliminating some risks of corruption, had created others instead.
Now, very briefly about the case-law of the Constitutional Court with respect to the following question: whether, in determining the judges’ remuneration, the requirement to ensure the principle of checks and balances between the branches of the state power which follows from the principle of the separation of powers has been complied by?
On 18 January 2010 the Constitutional Court in the case no. 2009-11-01, in examining the compatibility of judges’ remuneration with the Constitution, introduced as a criterion the compatibility with the principle of separation of powers, providing that: “In harsh economic circumstances, the state may have to review the financing in the whole public sector; however, in a situation like this the principle of constitutional equality of all branches of power must be, in particular, respected. Decreasing the financing of only one branch of power or maintaining the financing of one branch of power unchanged, while the financing for others is decreased, is unacceptable.” This finding is based on the fact that the legislator deviated from the principle of “mutual loyalty between constitutional institutions”, which the Constitutional Court specified in this judgement as a requirement to decrease the remuneration in the public sector in an equal and solidary manner. Whereas the members of the Latvian Parliament, after having decreased the judges’ remuneration, increased and then froze the monthly salaries for the members of the Parliament. The same was done to the remuneration of the members of the Government. The Constitutional Court found that in establishing remuneration of persons employed in various constitutional bodies, equal and solidarity-based decrease of remuneration was not implemented. Although in the framework of this case the Court found that: “Such an interpretation of the principle of equality that would provide that an equal level of remuneration should be set for all branches of power is impermissible”, the impugned norms were recognised as being unconstitutional, because “a violation of the principle of separation of powers and the principle of judges’ independence was established.”
The Constitutional Court made the most extensive assessment of ensuring the principle of checks and balances between the branches of the state power in the case no. 2016-31-01. The Constitutional Court accentuated that: “[..] every judge in administering justice acts as a check for the executive power and the legislator in the system of checks and balances that follows from the principle of the separation of powers. Whereas the legislator has an obligation which follows from this principle of the separation of powers to respect the status of a judge, i.e., to treat the judicial power so as to ensure a balance between the three branches of power. This legislator’s treatment of the judicial power must be reflected, inter alia, also in the legal regulation of judges’ remuneration.”
To conclude with a summary, the principle of the separation of powers requires the establishment of an independent judiciary, so that it could function in the interests of the sovereign, guaranteeing the protection of every person’s freedoms and rights. This can be implemented only by ensuring the system of mutual checks and balances in the functioning of the branches of the state power, inter alia, regarding the judges’ remuneration. Unfortunately, it is rather typical of those powers of the state, which hold “the state’s purse”, i.e., the legislator and the executive, to forget that an appropriate remuneration of judges’ is not their free choice but rather one of the pre-conditions for a fair trial and a judge’s independence.