Judicial election by popular vote may violate international principles on independence of judiciary

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In a new report released today, the International Bar Association’s Human Rights Institute (IBAHRI) warns that judicial elections by popular vote may become politicised and the principles of judicial independence violated. Furthermore, the report finds that the judicial retention elections in the United States’ state of Iowa, in 2010, were incompatible with the principles of judicial independence as embodied in the United Nations (UN) Basic Principles on the Independence of the Judiciary (1985) and the right to a fair trial as set forth in Article 14 of the UN International Covenant on Civil and Political Rights (1966).

Baroness Helena Kennedy QC, IBAHRI Co-Chair commented, ‘The establishment of a method of judicial selection that is compatible with the rule of law and ensures security of tenure is fundamental to guaranteeing judicial independence. While the international community has not reached a consensus on what this method should be, serious concerns have been raised over the selection of judges by popular vote. The IBAHRI notes that this form of judicial selection is not prohibited under international standards, but what the Iowa case study demonstrates is that in politicised cases, it can lead to the wrongful removal of a judge and this must be considered as a serious impediment to the rule of law.’

This 28-page report entitled Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa, focuses on the retention elections that took place in Iowa in December 2010, where the Chief Justice and two other justices of the Supreme Court of Iowa were removed from office, following a decision made unanimously by the Iowa Supreme Court in April 2009 in favour of gay marriage. The report provides a detailed examination of international principles and standards of judicial independence, with particular focus on methods of selecting, retaining or removing judges as a precondition to guaranteeing judicial independence and impartiality, as well as analysing the judicial selection processes across the US. The system established for the appointment of federal judges in the US amalgamates procedures for merit appointment and removal and engagement with democracy. The IBAHRI report recommends reform of the appointment and retention process at state level. The IBAHRI holds that elections should be reconsidered by states through their constitutional processes (and in consultation with expert bodies) with a view to modifying a system of appointment based on merit.

Sternford Moyo IBAHRI Co-Chair said, ‘Judges should be appointed and retained based on their professional qualifications, through processes that guarantee both independence and impartiality.’ Speaking on the role of bar associations, Mr Moyo added, ‘Reformation of judicial selection and retention processes in the US should be undertaken in consultation with the national and state bar associations. It is the responsibility of bar associations to take up this cause.’
ENDS

Notes to the Editor

 

  1. In December 2010, three judges: Marsha K Ternus, Chief Justice of the Supreme Court of Iowa, and Justices Michael J Streit and David L Baker, were removed from office in a retention election, largely in reaction to decisions made earlier in their judicial capacity. 
     
  2. Click here to download the IBAHRI report Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa.

    The IBAHRI report is divided into four chapters:

    Chapter One characterises the international principles and standards on the independence of the judiciary as set forth in human rights treaties, declarations and other related instruments. This chapter in particular analyses the general principles and guidelines established in the 1985 Basic Principles on the Independence of the Judiciary adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders.

    Chapter Two analyses judicial selection in the US. In order to obtain a clear picture of the judicial electoral system, this section explains the different methods of judicial selection at both the federal and state level. The chapter describes the differences in judicial tenure among those states with selection methods involving some type of popular election. The method of selection and judicial tenure are related as judicial independence relies on both an appropriate method of selection as well as a secure term of office.

    Chapter Three canvasses concerns about judicial selection through a popular vote. Taking into account the content of constitutional provisions, this chapter discusses whether these provisions are inconsistent with the Basic Principles on the Independence of the Judiciary.

    Chapter Four analyses the retention elections that took place in Iowa in 2010. The chapter highlights: the politicisation of the elections; the threat this poses to the independence of the judiciary; and the roles that the Iowa State Bar Association and American Bar Association played in the elections.
     
  3. The International Bar Association (IBA), established in 1947, is the world’s leading organisation of international legal practitioners, bar associations and law societies. Through its global membership of individual lawyers, law firms, bar associations and law societies it influences the development of international law reform and shapes the future of the legal profession throughout the world.

    The IBA’s administrative office is in London. Regional offices are located in: São Paulo, Brazil; Seoul, South Korea; and Washington DC, US, while the International Bar Association’s International Criminal Court Programme (IBA ICC) is managed from an office in The Hague.

    The International Bar Association’s Human Rights Institute (IBAHRI) works to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.


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