- Temat numeru
- Artykuł pochodzi z numeru IUSTITIA 1(43)/2021, dodano 9 czerwca 2021.
Aktualne kierunki rozwoju władzy sądowniczej. Marsz Tysiąca Tóg rok później
The current state of the judiciary has, as it always has had, threats to its independence. Those threats come from many and different sources and at times from sources that seem well intentioned. There is a constant and present need, however, always to be on guard to defend that independence for the benefit of the public. It is essential because the public needs an independent judiciary to be confident in going about its ordinary business and ordinary activities. Ordinary people need to know that they can rely upon a fearless judiciary to apply the law and to resolve any disputes about its application when disputes arise. Knowing that disputes will be resolved by an independent judiciary committed to the Rule of Law is an important structural feature in a free society: people can safely obey rules when they know that rules will be fairly enforced.
The new architecture for the future judiciary will have much of its ancient structure and foundations. It will need to meet the ever-present challenges and the ever-changing ways in which those challenges appear. The continuity in architecture is the need for independence of decision making and conditions of fearlessness when deciding and giving reasons. The new architecture upon that structure and foundation must look to what makes judges vulnerable and to remove that vulnerability.
There are many things which may cause vulnerability including inadequate remuneration, lack of security of tenure and lack of security upon retirement. A person vulnerable in his or her position may be seen by the public as likely to be tempted by personal fear rather than the public good. That kind of vulnerability will undermine the confidence of the public in its judiciary and, ultimately, in its legal system. It is important that judges are adequately paid, that they cannot be removed from office except in the case of proven misbehaviour or established incapacity, and that they have adequate pension upon retirement. Removal of that kind of vulnerability will enhance public confidence in the impartiality and fairness of judicial decisions.
The absence of direct attack is also important. Judges need an environment in which they can express themselves without fear. They need that for the benefit of the public not for their own personal reasons. Error in decision making is something to be corrected by appeal courts rather than by making judges personally vulnerable in their personal or professional position. Disciplinary procedures should never be used as a means of stifling judges applying the law and expressing their view of the law and its application.
Freedom of speech is a precious feature of a free and liberal society because it enables each of us to express our view and by doing so enables each of us to learn from each other. Restrictions upon that freedom lessens the richness of society and should not be imposed lightly. The ability for judges to speak freely is different from the general freedom of expression enjoyed by the public, but it is no less important. It is the judges who are entrusted with the task of applying the law to its people and its people need to know what the judges think when they are acting in the name of the people; they need to know that their judges are not afraid to speak when applying the law.