Diversity and Independence: Legitimacy of Courts

“Diversity and independence [in the Court of Justice of the European Union] are not ends in themselves, but means to an end: legitimacy”

Introduction

            Internal courts, in the same way as their national counterparts, rely on public faith in their rulings to stimulate confidence in the judicial system and in particular, court decisions. To realise this goal, the courts ensure that candidates filling up the positions of judges possess such qualities as impartiality, independence, diligence, integrity, equality, and competence[1]. Unlike national courts, international courts have to also take into account the nationalities of their individual judges, and the ways in which these nationalities could influence the ability of judges to issue judgement in cases where their states of origin have been implicated with independence and impartiality[2]. However, the manner in which the CJEU (Court of Justice of the European Union) approaches the issue of independence and diversity of its judges is a clear indication that diversity and independence are tools that the court uses to attain an end namely, legitimacy[3], as opposed to being an end in themselves.

Member state representation to the CJEU

            The TEU (Treaty on European Union), under Article 19(2) provides that,' the Court of Justice shall consist of one judge from each Member State. The General Court shall include at least one judge per Member State'[4]. This principle is explicitly enshrined in the EUCJ's founding treaties. By ensuring that each of the domestic legal order has been represented, is aimed at guaranteeing that every Member State contributes to EU law and that the individual national courts are in tune with the EUCJ[5]. What this means is that in the event that the development of the ideation of EU legislation dully considers the abstractions accepted in individual Member States, this will aid in their adoption[6]. The other objective is to enable the Court of Justice to gain an in-depth comprehension of the national legal background behind every dispute[7]. Although Article 19(2) TEU demands that each of the Member States should provide one judge, it is highly unlikely that an individual Member States would offer a candidate of a different nationality. There is also the question of the impartiality or independence of the judge. In this case, even though the judge has been appointed by a Member State, an individual Member States hopes that the judge it has appointed shall somehow have an influence on the rulings made by the Court of Justice[8]. However, judges should be seen to be impartial in issuing rulings.

Legitimacy in representation

            It is a widely recognised fact that the legitimacy of courts is to be found in “the extent to which their composition reflects those whose lives are affected by their decisions”[9]. This has in turn led to a widely acknowledgement that diversity improves the legitimacy of the courts and by extension, their effectiveness. This can be due to several factors. To begin with, there is a higher probability that citizens will trust and respect courts made up of personnel who are like them[10]. Also, this could be affected by the existence of traits which judges can individually identify with; including race and gender, and which could in turn impact on the decisions arrived at[11]. Finally, gender and ethnic diversity enhance the courts' ability to make decisions[12]. In this case, diversity ensures that the judiciary remains open to alternative perspectives. This is, however, not the case owing to the fact that judges of a certain ethnicity are better placed to 'represent' an unbending perspective,  but on account of the likelihood that judges drawn from a specific ethnicity or race are better able to comprehend and be passionate about the views held by their individual ethnic or racial communities[13].

            The CJEU has come under mounting criticism on grounds that its composition does not represent the EU citizens whose interests  is expected to diligently served [14]. The International Criminal Court (ICC), under Article 36(8) of the Rome Statute acknowledges the need for State Parties to ensure a fair representation of male and female judges while selecting judges to the Court[15]. The CJEU's composition lacks ethnic minority, gender, and racial balance representation.  More importantly, the EU primary law does not contain any provision that is opposed to this form of imbalance.  Fidelma O'Kelly Macken, an Irish judge, was the first woman to be appointed as a judge of the CJEU in 1999, while Simone Rozes had served in the capacity of Advocate-General between 1981 and 1985[16]. Nonetheless, the start of the twenty-first century reveals a growing trend towards increased female representation, although the situation is still far from satisfactory. As of 2014, the CJEU consisted of only two female Advocate-Generals. The Court of Justice consisted of two five female judges, whereas the General Court had six female judges.

            On the issue of the representation of ethnic and racial minorities, it is worth noting that to date far, all the Advocates-General and judges have been white[17]. The sustained mostly masculine composition of the CJEU's judiciary might be interpreted as one of the various reasons why the Court has now embraced a formal as opposed to definite ideation of gender equality that has not managed to adequately address the issue of structural limitations brought about by family, households, or labour market traditions.  

            While there has been an increase in the number of female judges over the years, the Court is still predominantly made up of male judges, as is the case with most national supreme courts. Currently, The Court consists of 7 female judges and 3 female Advocate Generals. On the other hand, there are 6 women judges of the General Court out of 28[18].  It is also not clear from the EUCJ system who ought to be nominated as a member, and the criteria to use. This lack of transparency at the EU level is a duplication of the ethnic and racial distribution evident in the national judiciaries.

            The English legal system has traditionally relied on the notion of impartiality as its guiding principle[19]. This has in turn acted as the foundation stone for the legitimacy and credibility of the criminal justice system based on the idea that a judicial system that lacks impartially is not capable of commanding universal respect and consent. This is because it would be seen to issue non-impartial rulings and hence as lacking credibility.

However, there are still claims that the judicial system in England and Wales is predominantly white, elderly, and male, implying that justice translates into 'male justice'. However, in recent years, the Government has acted to enhance diversity of the judiciary, such as the establishment of a judicial diversity taskforce.  In addition, the JAC (Judicial Appointment Commission) in an effort to increase diversity welcomes and encourages applications from diverse constituencies. Nonetheless, the judiciary is still dominated by white males[20]. Women account for a partly 13.3% of the senior judiciary positions in the UK (these include the High Court, Supreme Court, and Court of Appeal). In addition, out of some 165 judges, only five are from a BMW background. However, the lower cadres of the judiciary have more women and BME groups, with 28.4% of the magistrates being women[21].

            It is also important to note that even as the Court has made progress towards gender representation, over the past 6 decades, there have only been five female judges and five female Advocates General.  On the other hand, the Court is yet to have a BME judge Court or Advocate General[22]. Accordingly, advancement in the realisation of minority representation is regarded as a key challenge that modern-day judiciaries have to contend with.  The lack of diversity in is exacerbated at the EU level based on the fact that groups deficiently represented in both the judicial and national legal systems cannot independently access the General Court or the CJEU. This is indicative of a procedural problem in that there is no Treaty that expressly spells out common or formal appointment procedure for CJEU judges or Advocates General. EU law affords their Member States the unrestrained preference to decide independently how their nominees should be identified and selected. Consequently, selection is largely restricted to the “muffled atmosphere of ministerial cabinets and diplomatic meetings"[23].

Independence and legitimacy of CJEU members

            To become a member of the CJEU, the individual candidate must possess an independence that is beyond doubt. Ensuring that the independence of candidates becomes an issue of vital consideration is a moral requirement whose goal is to defeat any ideation that such a candidate represents the interests of the government or Member State responsible for their nomination[24].  In the same way, the requirement that candidates to hold legal qualifications augments public confidence in the rulings made by the Court. Moreover, it involves a precaution against entirely political appointments considering that the candidate ought to be at least qualified and competent for that position. Nonetheless, the requirement that the candidate should hold specific qualifications “is deprived of any effectiveness if there is no procedure foreseen to assess them”[25].

            International courts attempt to advance their legitimacy and act judiciously in a bid to pursue this objective. They pursue legitimacy in order to meet such goals as enhancing their compliance with judgements, and for legitimacy sake. Although international courts could have other objectives that they endeavour to meet and even as some of them compete in a bid to improve their legitimacy, to a certain extent their judgements could be explained as a desire to develop their legitimacy.   One way through which a court can enhance its legitimacy is by giving well-reasoned judgements; acquire acceptable actions in the eyes of the public, and judgements that seem confined to the law[26].  The legitimacy of a court is determined by its behaviour, and the reputation of its judges.  A court with highly respectable judges is likely to be perceived by the public as issuing judgements in a legally correct and impartial manner, thereby enhancing its legitimacy[27].

            Since international courts have dealings with states that abide by their rulings, it is important that they intensify their legitimacy as a means of increasing the probability to states will abide by their rulings and not react to their rulings in a manner that is likely to impair their interests. The court can realise this by demonstrating its impartiality to states.  Without taking into account the extent or form of diversity, or its implications on judgements, there appears to be a general consensus that “diversity enhances the legitimacy and hence effectiveness of the courts”[28]. This is not only applicable to the national courts, but also transnational courts like the CJEU. This is important considering that the judgements issued by transnational courts impacts of the daily lives of BEM (black and ethnic minority) residents and citizens of the European Union.

Conclusion

            Legitimacy is a key requirement for all national and international courts. In order for a court to be perceived as legitimate, it must give impartial rulings. To encourage public confidence in them, the composition of national or international courts should be such that it reflects individuals whose lives shall be impacted by their decisions.    In other words, courts must demonstrate a balance in terms of gender, ethnicity, and racial representation as diversity has been shown to promote the legitimacy and by extension, the effectiveness of courts. However, the CJEU predominantly consists of white male judges while women and the BEM groups are grossly underrepresented.  A similar situation is to be found in the judicial system in England and Wales which is also male-dominated. Considering that the judgements issued at national and international courts affect women, men, and BEM residents equally, there is the risk that these courts could be perceived by the public as lacking the legitimacy to give fair judgements on account of their lack of diversity. 

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