The Judiciary

1. The Judiciary Supreme Courts, Appeals Courts and Supreme Courts that aren’t Supreme July 8th, 2013

2. The Judiciary • Law sets basic rules for citizens in society, judiciary applies • Ensures limits on the power of governments (democracies) • Wide ranging decisions that impact society • “Power behind the thrown” • Democratic society has a political culture wherein obeying of the law is expected

3. Law, Morality and Politics in Society • Potentially two sides of law: instrument of justice; instrument of oppression • Canadian Opinion? • Do courts treat people equally? No! • Do courts reform criminals? No! • Do courts determine guilt well? Yes! • Canada, as with most countries has demonstrated just and unjust law • Charter, education, health care • Head tax, Voting, internment

4. Morality and Society • Law is a reflection of the dominant social values/morals among a society’s elite • Gay marriage • Canada, US, UK • Adultery • US, Saudi Arabia, Iran

5. Types of Law • Public Law • Issues regarding the constitution, criminal law, international law • Issues of public safety, public health, morality • Private Law • Resolving disputes between individuals, not relating to ‘rights’, morality etc • Contract law, inheritance, real estate

6. Types of Law – In Detail • International Law: “complex body of rules, derived from treaties, covenants, and declarations signed by governments… [academics and courts] can also be source of law when rules are not clear.” – Heard • International courts • International Criminal Court • International Court of Justice • European Court of Justice

7. Details Cont… • Common Law: Primary law practiced in the UK, Canada, India (among other and former commonwealth countries) • “precedent from relevant cases in the past are applied to current cases. Judges are bound by precedence and should decide like cases similarly.” • Stare Decisis: Courts are bound by the decisions of other courts (all other things being equal).

8. Details Cont… • The Civil Code: Quebec, Western Europe and Former French Colonies • Napoleon and the Holy Roman Empire • Each case should have the principles of law applied to it in the current context (ie Past decisions should not bind current decisions) • In practice, judges still pay attention to past decisions

9. The Sharia • Sharia Law: “civil and criminal [laws], based on ancient teachings, Islamic scripture and the Qur’an, later scholarly writing, prescribing both a moral code of right and wrong and punishments commensurate with transgression.” • Faith-based law • Range of application • Iran, Afghanistan (under the Taliban), Parts of Nigeria • Egypt

10. Sharia Cont… • Institutionalized patriarchy, men have more rights than women, if applied in the extreme • Convictions based on the word of others • Because this is considered unfair (in Canada), justices often refuse to enforce foreign rulings based on Sharia • Sharia in Ontario

11. Functions of the Judiciary • Horizontal Powers: Interpret and Enforce • Not just courts, administrative tribunals • Quasi-judicial power held by executive • Civil Courts • Military Courts • Religious Courts

12. The Role of Courts • Law is imperfect, “cannot foresee all future circumstances.” • Judges fill in the blanks, interpret meaning • Sometimes results in policy making (or changing) • Determine guilt or innocence • Do not seek out wrong doers, only deal with issues and people brought before them • Neutrality

13. Role of the Courts Cont… • Adjudicate based on rules and evidence • Limiting power of government, essential in emerging democracies • Zimbabwe, Pakistan • Principle of the Rule of Law and Democracy • Laws from a body authorized in constitution • Laws are known or available to the public • Equality before the law (exceptions okay if written into law) • Enforcement by professional, non-partisan courts

14. Challenging the Rule of Law • War! • Governments want results, law limits abilities • Courts must ensure powers and actions are lawful • War Measures Act; Emergencies Act • Active role in rulemaking • Judicial government and Canada • PatriationReference, Secession Reference • 2000 US General Election and Florida

15. Court System in Canada

16. Judicial Review • Judicial review: “function of the courts where judges examine actions of the government to determine whether they are authorized by law.” Also: Constitutionality of law. – Heard • Ensuring that the executive does not arbitrarily use powers • Habeus Corpus • Reviewing actions and laws of other branches of government to ensure constitutionality. • Only where there are constitutionally protected rights and division of powers • Refereeing (in federations)

17. Judiciary as a Referee • Court decisions can concentrate power with one level of government or the other • JCPC and decentralization • UK Court • Top court until 1949 • SCoC and Centralization • Judicial review as an engine of Constitutional change

18. Judicial Policy Making in the Age of Rights • Filling in the blanks and interpretation • Different interpretations of similar ideas • Country to country • Court to court • Bills and Charters of Rights and the Courts • Marbury v Madison (1803) • Precedent setting powers for judiciary • Based in British decision of 1610 – Parliament should be limited by common law

19. Judicial Governance and Rights in Canada? • Post Charter (1982), role of court increased significantly • Big M Drug Mart (1985) • R v Morgantaler (1988) • Electoral Boundaries Reference (1991) • Delgamuukw v BC (1997) • Vriend v Alberta (1998) • M. v H. (1999) • SSM reference (2004)

20. Judicial Activism Positives vs Negatives. • Referees between society and government • Protection of minorities – WWII • A venue of explanation, evidence and argument • Trust in the courts to defend rights • Unelected body making policy decisions, preventing laws made by people’s reps (leg) • Leg accountable to voters (elections), SCoC not • Judges aren’t impartial, studies show the opposite – active policy makers, not impartial referees • Conservative vs Progressives

21. Judicial Activism in Practice • In practice, concerns about policy making must be overstated, policy making is a necessary component of the position • Issue as at the heart of where power lies • Ought to be viewed as a discussion between the different branches of government

22. Appointing a Justice • Manner of appointing judges varies around the world • Executive Appointment and Confirmation (cabinet) • Executive Nomination, Legislative Confirmation • Judicial Fraternity • Election (non-partisan?) • In Canada, executive appointment • Until recently, appointment generally a result of patronage • Since 1980s, representativeness major pillar

23. Appointment of Supreme Courts • Executive appoints a judicial advisory committee • Committee provides short-list, executive appoints • Federally, patronage still an issue • Highly recommend, recommend, cannot recommend • SCoC is the exception • Appointment of American SC very different • Senate confirmation, meetings and partisanship

24. Some Thoughts on Electing Judges • Most lower courts in US have elected judges • Pros: • Open about party preference • Reflect dominant values of society • Mandate for power associated with office • One/limited terms? Accountability? • Cons: • Impartiality? • Playing politics • Consistent sentences, irrespective of the case • Favours? (donations)

25. More Judges • Europe: • Judiciary considered career, much like any other • Senior judges select lower court justices for advancement • Record based • Low confidence in judicial system • Question: • Notwithstanding all of these different methods of choosing judges, what qualities should we look for in judges?

26. Independence of the Judiciary • Judicial Independence: “relationship between courts and other branches of government that allow judges to function without interference.” – Heard • “Telephone Justice” • Necessary components for an effective/independent judiciary: • R v Valente • Security of tenure, financial and administrative independence

27. Impartiality • Judicial Impartiality: “judges preside over and decide cases with an open mind toward the parties and issues involved.” – Heard • Judges cannot be seen to owe or favour social groups, loss of trust • Ministers and judges, judges and politics • Justices need to be free of interference, but must still follow norms of society in attitude/behaviour

28. Judges are People too.. • Socialization • Interpretation of facts and arguments • Generally consistent • Choice of Sentence • Social representativeness of court • Democratic deficit in the courts? • Issue of trust • Noted differences • Uniformity?

29. Removing Judges • Must strike a balance between non-interference and removal for ‘bad behaviour’ • Range of ways to do this, from dictatorial removal to judicial removal • In Canada – British Act of Settlement, 1701 • Monarch and majority vote by both houses • Judicial Councils • In the US • Impeachment • Judicial Commissions • What, though, is grounds for removal?

30. Are Courts Accessible? • If courts are passive, accessibility is vital to well-functioning system • Primary Barrier: • Costs • Thousands of dollars for simple case (guilt cheaper than court), appeals ($50,000 - $ millions+), time, quality of lawyer • Worse in private law (delays and court costs) • Unfair to women? • Men higher standard of living, post-divorce • Legal Aid