US Supreme Court abortion law leak and judicial independence

Aftermath of a leaked draft opinion that suggests the U.S. Supreme Court will overturn Roe v. Wade, supporters of abortion rights demonstrate outside of the Supreme Court building. (Photo: Twitter/ @noa_the_theydy / May 6)

The US public’s anger against the US Supreme Court’s leaked draft of abortion ruling to overturn a 1973 landmark jurisprudence in the Rove v Wade decision 49 years, almost a half century, later and the President Biden recommending that the Court should not do so demonstrate how much the judiciaries have become politicised and how important it is that the judges are made properly accountable.

In the US, the Supreme Court has become divided along party lines. In Poland and Hungary, the ruling parties attempted to remove unfavored judges and install their loyalists. In the UK, judges were accused of being “enemies of the people”. The French judiciary is accused of shattering lives. Former US President Trump went so far as to call judges “so-called” judges and “Obama judges”.

There is also a tendency to allow politicians to interfere with the judiciary all around the world. In France the executive is involved in the judicial Council (the CSM), in the UK the Lord Chancellor appoints judges on recommendations by JAC, while the Venice Commission considers it acceptable for the executive to have representatives in the judicial councils.

In my home country, Turkey, almost all of 13 members of the Council for Judges and Prosecutors are determined by the president i.e., the leader of the ruling party and the judiciary has been widely criticised for becoming an instrument in political cases.

As human beings, judges are intrinsically have their own political views. Yet politicians are mandated to appoint judges for their political lenience. It is only natural to perceive their rulings to be politically motivated. The public; on one hand complain about the judges’ political lenience but on the other mandate the judges to be kept under politicians’ leash…

Why is this paradox?

To ensure the survival of a democratic society the judiciary must be independent of the politicians, and its independence must be protected and nurtured. Judges must be given appropriate guarantees of tenure to ensure that they rule independently and impartially. In return, judges must fulfil their duties efficiently, and free from any interior or exterior influence. They must serve society with a top-quality judicial service that is proportionate to the great powers and exceptional privileges provided to them.

Generally, public trust is higher in better functioning judiciaries and lower in less performing ones. The lesser quality of service lead to the lessening of the public trust in the judiciary, and judges.

It is mainly the accountability of the judges that distinguishes judiciaries as better or worse service providers. It is only when the judiciary is scrutinised by free press the judiciary will serve the people better. In jurisdictions where the accountability is compromised, and the judicial office is taken for granted the judicial services lack essential quality elements. In spite of failing to serve people avoiding accountability under auspices of judicial tenure and judicial independence results in distrust in judiciaries. In such environment unaccountable justices will become partisans and rule according to their political agenda, or their loyalties.

Therefore, I am convinced that the loss of trust in judiciaries stems from the lack of quality of judicial services combined with a lack of accountability. To earn and protect its deserved independence, the judiciary must deliver quality services and must be truly accountable to the society, not to ruling politicians. Duties and interests of the judges and the politicians conflict, and would seriously compromise the accountability of both to the extent of conspiring against the very people they serve.

There is a better way: service-oriented regulation and supervision

It is utmost important to motivate judges rather than stressing to provide quality service while eliminating abuses of office. A unique system of accountability focused on securing quality service needs to be devised. First quality elements in judicial services need to be defined and be made the basis of accountability. All aspects of the quality judicial service should be regulated by an autonomous regulatory body. It should be water-tight against even a hint of influence by any individual, group, or coalition. A sophisticated performance assessment system must be established to ensure that the judiciary provides quality service and identifies abuses of tenure.

We at the Better Justice Association feel that the first step to ensure quality service is to transform judicial council into and independent regulatory authority. For this purpose, we propose to establish a Supreme Authority of Justice (“SAoJ”). We also propose to establish the Supreme Court of Justice (“SCoJ”) for efficient judicial review of any of the SAoJ’s decisions. Any member of the public can initiate such action and at no cost.

In summary, judiciaries can have their independence protected by gaining the trust of the people by providing quality judicial service whilst being truly accountable. A judiciary that provides quality service and is accountable will be “friend of the people.” Only then will the public defend judiciary against attacks and will perceive judges as their trusted guides even when they rule on serious political or social issues.

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