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Supreme courts should join in public debate to increase their legitimacy

"It is part of the job of these courts to make the law as well as to interpret it, but the challenge is to legitimise this role in democratic societies. "

It is time for supreme courts to follow the lead of the German Constitutional Court, and join in public debate when their judgments hit the headlines. The same goes for the European Court of Justice (ECJ). It is part of the job of these courts to make the law as well as to interpret it, but the challenge is to legitimise this role in democratic societies. Transparency works for central banks, and it could work for supreme courts too. Transparency is a better form of accountability than excessive involvement of politicians in the selection of judges.

A ruling of the German Constitutional Court last year in effect overruled a judgment of the ECJ upholding bond-buying by the European Central Bank, and unleashed a storm of legal and political criticism. The President of Poland’s Constitutional Court (who has close links with Poland’s populist leader) praised the German judgement, saying that it showed that national courts have the last word.

All this provoked two authors of the German court’s controversial ruling to do the hitherto unthinkable and give interviews to the press, defending their judgment.  

One described it as one of those rare cases when a national constitutional court has to step in to prevent the ECJ from gravely exceeding its authority under EU law. The other distanced the Court’s position from that of the populist Governments of Poland and Hungary, which he described as wanting to deprive the ECJ of its authority to review the legality of acts of the EU institutions.

In response, the President of the EU’s General Court (the court below the ECJ) also spoke to the press, warning that the ruling could amount to de facto German withdrawal from the European Union. The words were his own, but he appeared to speak as proxy for colleagues down the corridor in the CJEU. He was not wrong to say what he said, but wrong to say it when he did, when it was obviously possible that the CJEU would be called upon to rule on the consequences of the German court’s ruling. 

Then a month ago the European Commission initiated proceedings before the CJEU to call Germany to account for the misconduct of its Constitutional Court. This was another unprecedented development. Even when in the 1980s France’s Conseil d’État defied CJEU judgements for a decade, the Commission held its fire. In these more troubled times, the legal coercion of a CJEU action and potential financial penalties became the Commission’s first resort. The genuinely independent German Constitutional Court is being put under political pressure to prove that the von der Leyen Commission does no favours for Germany, and as a warning to the far from independent Polish Constitutional Court.

In the event of a ruling against Germany, the German Government would be obliged to take measures to implement that judgment. It is not clear what steps the German Government could take to force the German Constitutional Court to change its position.

Only three days after the judgment of the German Constitutional Court the CJEU issued a press release referring to that judgment and saying that it never commented on the judgments of national courts. But it went on to say that only the CJEU could declare an act of an EU institution contrary to EU law, which amounted to at least implicit disapproval of the German judgment.

For now, the CJEU is right to remain silent. But once it has given judgment, it should be more forthcoming. It is time it spoke to those whose lives it changes (mostly for the better) in terms that ordinary people -including populists – can understand.

The German Constitutional Court, and just about any Supreme or Constitutional Court you can think of (certainly the UK Supreme Court), have much in common with the ECJ. They claim their judgments are simply declaratory of existing law, but they make the law as well as interpreting it, and they present their law-making as interpretation.

So how should we square the circle, and reconcile the need for independent judges with the need in democratic societies for some kind of accountability of judges who make the law as well as interpret it?

An analogy – far from precise, but worthy of remark – is the case of independent central banks. Like supreme courts, they take decisions which directly affect society, and which are a mix of technical assessment and policy-making.

One lesson to be learned from central banks is that policy-making by autonomous officials raises legitimacy issues in a democratic society which can be mitigated through the device of transparency.

The authors of a 2015 working paper for the European Central Bank commented that transparency, as well as contributing to the effectiveness of monetary policy, “is also a vital element for independent central banks to lend legitimacy to their policy decisions in a democratic constitution”. This is a fairly conventional view.

That is why the Monetary Policy Committee of the Bank of England publishes transcripts of its behind-the-scenes deliberations on policy-making, even if it is 8 years after the event!

Another lesson about transparency to be learned from the practice of central banks is that individual members of a decision-making body such as the Monetary Policy Committee can be free to explain their policy positions in public without undermining the efficacy and integrity of that body.

Similar leeway should be given to individual members of national supreme courts or constitutional courts, and the ECJ. As in the case of central banks, this would “lend legitimacy to their policy decisions in a democratic constitution”.

The statements of members of the German Constitutional Court, and of the President of the EU’s General Court, referred to above, suggests that some leeway already exists in Germany and at the level of the EU judiciary if judges choose to make use of it.

National systems have checks and balances to counter the law-making aspect of the judicial role – such as short-term appointments for judges, and the involvement of politicians in the appointments process.

But the more that politicians are involved in the appointment of judges, the more politicised judges become, and the less credible the claim that they can act as impartial referees in cases involving their political patrons.

A good example (amongst others) of how to secure judicial independence is set by the UK, where all judicial posts are publicly advertised, and where politicians play no active role in the selection of judges, including selection for the UK Supreme Court.

Where politicians play no part in the selection of judges, transparency becomes an even more important factor in legitimising the law-making role of judges in a democratic society.

Supreme court judges (and I include constitutional courts and the ECJ) should be more honest about their law-making role, and ready to explain and defend in public the policy choices they make.

One policy choice which sometimes confronts supreme courts is whether they, as unelected officials, should develop the law in a particular case, or defer to elected legislative bodies. Transparency on this issue might be particularly welcome.

It is true that judges provide legal reasoning for their decisions, but legal reasoning can obscure the distinction between applying existing law and changing the law, and often fails to disclose non-technical policy considerations which have had a decisive effect on the outcome.

Judges should not, however, be forced to become media personalities, and they should not seek that role.  

They should instead, both collectively and individually, have well-qualified press officers to act as intermediaries, who will engage with the press and public and justify the policy choices which have led to innovation in the law, or to a refusal to countenance change. The aim should be not to court public opinion, but to inform public debate.

Following the spirit of Bank of England advice to members of its MPC, I would counsel judges of national supreme and constitutional courts, and of the CJEU, to express their personal views in a way that maintains the high reputation of their respective courts for impartiality and constructive policy debate.

Professor Derrick Wyatt QC, Member of the International Academic Council of Fide. This article first appeared in a shortened form as a blog for the London-based think-tank UK in a Changing Europe.

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