The Role of Constitutional Courts in Strengthening the Independence of the Judicial Power: Latvian Experience
Aldis Laviņš
President of the Constitutional Court of the Republic of Latvia
XX Yerevan International Conference
“The Role of Constitutional Courts in Strengthening the Independence of the Judicial Power:
Doctrinal Approaches and Contemporary Challenges”
Yerevan, Armenia on 8-10 October, 2015
[1] The status and the jurisdiction of the Constitutional Court give it the possibilities for strengthening the independence of the judicial power. However, it is not solely the Constitutional Court and its rulings that influence independence.
[2] The judicial power itself to a large extent determines, how independent the judicial power is. The judicial power must organically fit into society, and it needs to be accepted and respected by society. It is the judicial power itself, which is the main enhancer of its authority and the promoter of public trust – by its rulings, attitude, openness, respect and self-restraint/ self-restriction, etc.[1] The principle of judicial independence comprises not only the requirement to be independent, but also to appear independent. To ensure an important element of a judicial state – public trust in the judicial power – the judicial power itself has the obligation to demonstrate, to the extent possible, judicial independence, impartiality and integrity.
If all the courts and any of judges acted perfectly the judiciary would have an immense public trust. In such a case, it would be a great risk for anyone – also for politicians, to attack or influence in some way a strong and independent judiciary. But it is not an easy task to establish such a trustful judiciary. This should be a goal, and Constitutional Courts with its jurisprudence can contribute to it.
The Constitutional Court of Latvia and its Jurisdiction
[3] The Constitutional Court of Latvia, in its turn, as the enhancer of the independence of the judicial power, acts within the limits of its jurisdiction. The Constitutional Court Law does not envisage hearing disputes of jurisdiction. Usually the issue of the independence of judges reaches the Constitutional Court as an application with the regard to the incompatibility of a norm with a norm of higher legal force. In all cases of this type the Constitutional Court has strengthened the independence of judges as a fundamental value of a judicial state, but not as an end in itself. I shall continue by examining the ways, in which the Constitutional Court in Latvia has strengthened the independence of the judicial power.
The Guarantees for the Independence of Judges
[4] A court can be truly independent only if the guarantees for the independence of the judicial power that the Constitution comprises are being implemented in practice.
In its judgement in the first case of judges salaries[2] the Constitutional Court listed the guarantees for the independence of judges, noting that “[t]he independence of judges is connected with a number of such guarantees: guaranteed tenure of the judge (the procedure for appointing or approving judges, the qualification necessary for the appointment, guarantees of irremovability, conditions for promotion and transfer to another position, conditions for suspending and terminating the mandate), the immunity of the judge, financial security (social and material guarantees), the institutional (administrative) independence of a judge and the actual independence of the judiciary from the political influence of the executive power or the legislator.”
At the same time the Court also developed the test for verifying the principle of the independence of judges, noting that “all these guarantees [for the independence of judges] are closely interlinked, and, if even one of them is disproportionally restricted, then the principle of the independence of judges is breached and thus the fulfillment of the basic court functions and ensuring human rights and freedoms come under threat.” Whereas a restriction upon the guarantees for the independence of judges must be recognized as being proportional, if the legislator has abided by the limits of its discretion, i.e., in adopting decisions that leave an impact upon the independence of judges, has abided by the principles that follow from the Constitution.[3] Thus, the Court has indicated how it examines, whether the independence of judges has been ensured in appropriate scope.
[5] The Constitutional Court of Latvia so far has examined only one of these guarantees, namely, the financial security of judges.
Both in the cases pertaining to judges’ salaries, as well as in the case regarding creating the budget of independent institutions, courts among them, the Constitutional Court has also examined the relationships of the judicial power with the executive power and the legislator.[4]
In view of the case law of the Constitutional Court until now, in the continuation of my presentation I shall examine the following:
- firstly, the relationship of the judicial power with the executive power and the legislator; i.e., terms of cooperation and procedural requirements in those cases, where the legislator and the executive power, within the limits of their competence, deal with issues pertaining to the judicial power (“doctrine of cooperation” of the branches of state power and “the obligation to hear” that follows from it), and
- secondly, the financial security of judges as one of the most significant guarantees of independence.
“The Doctrine of Cooperation” of the Branches of State Power and “The Obligation to Hear” that Follows from It.
[6] In the so-called “judges’ salaries cases”, the Constitutional Court developed “the doctrine of cooperation” of the branches of state power; and “the obligation to hear” that follows from it is not only a procedural pre-requisite for ensuring the independence of the judicial power, such cooperation also ensures the possibility to reach the most effective solution as to the content, when amendments are introduced into regulation pertaining to the judicial power. This doctrine operates also in the process of preparing and adopting the budget, and the procedural requirements that follow from it must be met.
The doctrine of cooperation, as the Constitutional Court has noted, means that the legislator, prior to adopting a decision on the functioning of courts – both with regard to budgetary issues and other issues related to the performance of court functions[5], must give the possibility to an independent institution that represents the judicial power to express its opinion on issues that influence the work of courts. In the context of separation of power and judicial independence, hearing the opinion of the judicial power means:
- the legislator has the right not to uphold the opinion of the judicial power; however, it must be heard and treated with respect and true understanding; and
- in case, if this opinion is not taken into account or is taken into account only partially, the legislator has the duty to provide substantiation for its action in the scope that would provide to the court, if it had to examine the compliance of the legislator’s actions with the Satversme, all information needed to perform the proportionality test.
Such “procedural rules” currently operate both in the process of drafting laws (pertaining to the judicial power and functioning of courts), as well as in the procedure of preparing and adopting the budget. In this cooperation the judicial power is represented by the Council for the Judiciary – a collegial institution, which participates in elaboration of the policy and strategy for the judicial system, as well as improving the work organisation of the system of courts.
It must be admitted that sometimes this communication is rather effective, but occasionally, unfortunately, this obligation to cooperate and to hear is fulfilled only formally. However, to ensure balance between the branches of power and to solve possible disputes, the legislator has envisaged the possibility for the judicial power to defend its rights by exercising the right granted to the Council for the Judiciary to submit an application to the Constitutional Court. Since 2010, when the Council for the Judiciary was established, it has had the right, in certain cases and in certain procedure, to submit an application requesting initiation of a case before the Constitutional Court. Whereas the Constitutional Court Law specifies (restricts) this competence – the application may pertain only to issues related to the jurisdiction of the Council for the Judiciary, namely, to the extent it is necessary for ensuring the policy and strategy of the judicial system, as well as organising the work of the system of courts. Hence, the Council for the Judiciary may turn to the Constitutional Court also to defend the principle of the independence of courts.
This form of strengthening the independence of judges, namely, an application to the Constitutional Court by the Council of the Judiciary, thus far has not been used. However, this possibility per se strengthens the position of the judicial power and its independence.
The Financial Security of Judges
[7] One of the guarantees of judges’ independence is the financial security of a judge. A number of aspects of judges’ financial security have been identified in the constitutional doctrine, but in all democratic states the financial security of judges has been unequivocally recognised as one of the most essential elements in ensuring the independence of judges. Judges need this guarantee as a safeguard against external influence.
The financial security of a judge comprises establishing due remuneration to judges, namely, payment for work, social guarantees, including pensions[6], it serves as the safeguard for due administration of justice and provides the grounds for setting high requirements for the judge and allows retaining trust in his competence, independence and fairness.
In this particular case the Constitutional Court examined due remuneration for work as one of the elements in the financial security of judges.[7] The Court differentiated between the individual level of financial security, over which the State could not and should not assume responsibility,[8] noting that the State had the obligation to ensure the financial security of judges on a level that the judge required for performing his duties of office.
Later the Constitutional Court revealed also the content of judges’ financial security, within it abiding by the requirement for, first of all, understandable, transparent, stable and sustainable system of remuneration, and secondly, maintaining the real value of remuneration. The Constitutional Court explained in its rulings what “real value of remuneration” and maintaining it meant. Namely, it means that the judge feels certain that the remuneration that was established at the moment, when he started performing his duties of office, will not be decreased and in case, if the living costs grow, the remuneration would be increased accordingly.[9] Moreover, as the Constitutional Court has noted, the legislator’s failure to act, i.e., abstaining from increasing judges’ remuneration for work in accordance with the actual increase in living costs, is incompatible with the judges’ financial security and should be recognised as being decrease de facto.
Currently, the issue of judges’ financial security is again gaining relevance. Let’s hope that in this case the Constitutional Court will take preventive measures to strengthen judges’ independence – by the theoretical findings included in its previous rulings and not in the framework of a new “judges’ case”.
[1] Public trust in the judicial power is influenced by a totality of various circumstances – the effectiveness of the work of the judicial system in general, reflection of legal processes and rulings in mass media, quality of the management of judicial proceedings and rulings, as well as the public opinion on the moral authority and integrity of judges.
[2] Judgement of 18 January 2010 by the Constitutional Court in Case No. 2009-11-01.
[3] The Constitutional Court, in examining, whether the legislator by its actions has infringed upon the independence of judges, must examine all facts of the case in each particular situation. The legislator’s action, which in one case creates disproportional restriction, in another, in view of the particular facts, could be recognised as being proportional and in compliance with the constitutional requirements.
[4] In the budgeting [elaboration and adoption] process or legislative process.
[5] The Constitutional Court noted in its judgements, which issues should be recognised as being essential for the functioning of the judicial power and for its independence, leaving the enumeration open; however, noting expressis verbis issues regarding “financing, the number of judges, the necessary staff, as well competence requirements, remuneration”. It also noted that the principle of separation of power prohibits the executive power from taking decisions on these issues with regard to courts.
[6] Thus, the principle of the independence of judges included in the Constitution protects judges’ pension in the same way as other guarantees for judges’ financial security.
In view of the procedure for calculating pensions established in law, a judge, whose pension amount depends upon the decreased remuneration for work, also in case of economic growth would be paid the pension calculated in this way, namely, his social guarantees would be restricted.
[7] The issue of decreasing judges’ salaries, as well as other aspects related to judges’ financial security have been examined not only by those countries, where, due to historical reasons, there could be discussions about the scope and content of the independence of the judicial power (Czech Republic, Russia, Lithuania, Poland, Slovenia), this issue has been relevant also in Australia, the United States of America, Canada, Germany, and elsewhere.
[8] The individual level (scope) of financial security depends upon the life style of each particular person (judge). The state may not and should not assume responsibility for a judge’s excessive expenditure or disproportional financial plans. However, a situation, where the state decrease a judge’s remuneration to the extent that the judge may no longer assume financial commitments commensurate with his remuneration, becomes insolvent and, thus, his independence comes under threat, is inadmissible.
[9] If the law does not provide for a procedure by which the remuneration for work is automatically adjusted to living costs, then the law must establish another mechanism for ensuring this conformity.
In this regard, the Constitutional Court has referred to the Supreme Court of Canada, which has also pointed to the prohibition to decrease the real value and the necessity to provide for in law concrete procedure for ensuring it.