One of the hallmarks of liberal democracy is the existence of an independent judiciary. It is responsible for interpreting and applying laws to cases brought before it.
In some countries, the judiciary is also charged with ensuring that the laws, adopted by the nation’s legislature are compatible with the constitutional laws of those states. Such constitutional courts, whether separate from the rest of the judiciary (as in Germany) or part of it (as in the US or Israel) are becoming increasingly important.
All courts are generally accountable: to the public through holding open hearings; to the judiciary through the process of appeals as well as through internal disciplinary processes. At the same time, it is incredibly important that courts remain independent – in this respect, the court should only be answerable to the law itself.
However, when it comes to the issue of constitutional jurisdiction, it is the accountability which becomes controversial. A court which considers the constitutionality of a law participates, in a way, in the law-making process itself, and as such should be more accountable to the public than a regular court.
There are multiple ways of doing this, however, I would like to concentrate on three most popular: term limits, accountability to the legislature, accountability directly to the public.
Term limits work rather simply – after the term of a judge expires, a new one is appointed in their place (or their term is extended). Removing the judge is almost impossible. However, this type of accountability makes judges too dependent on an appointment process, which in turn makes them accountable to whoever appoints them – the politicians, the judicial selection committee etc. This dependence can be eliminated by limiting the number of terms a judge can sit in a court of constitutional jurisdiction to one, but this precludes qualified jurists from continuing their service on the bench.
Another way to make a court more accountable is by making it accountable to the legislature. The problem with this is that this method either makes judges essentially unaccountable (as in the US, where the necessary Senate majority is almost impossible to achieve) or too easy, as is the case in the UK (where a senior judge is removed upon an address of both Houses of Parliament). The only reason why no UK judge has never been removed using these provisions is that British judges do not consider the constitutionality of Parliamentary laws (they do consider the legality of other primary legislation, for example, Orders in Council made under Royal Prerogative).
In my opinion, the best way to ensure continued accountability of judges is through the Missouri plan. Under this plan, a judicial appointments commission presents candidates for appointment to whoever makes the appointment (in Israel’s case that would be the President). The appointer usually can choose from the candidates presented, but this is not an essential feature of the plan. After an appointment, the judge must be confirmed in office at the next general election by the voters, and every 10 years thereafter. This method of appointment and control means that judges, who make constitutional decisions, remain attuned to the views of the public. At the same time, this method of appointment maintains the professional integrity and independence of the judges – the candidates are selected by qualified lawyers and are not dependent on politicians. The Missouri plan is practised in many of the US states, as well as in Japan, and it has so far worked marvellously.
There are however several problems with this approach – the first one is the fact that the judicial appointments commission sits behind the closed doors and is for this reason considered unaccountable itself. This flaw is easily remedied – the commission in question should sit in public. Another problem is the fact that while this process works well for judges who consider constitutional cases, it does not ensure enough independence for the trial courts.
My solution to this problem is simple – create a separate Constitutional Court, which will have the sole jurisdiction of deciding on the constitutionality of statutes. All other judges, including the ones sitting on the Supreme Court, will apply the law, but will not be able to determine its validity. The removal process for such judges should be far more difficult – it should only be possible to remove them for misbehaviour proven in a court of law, and only with a supermajority vote in the legislature. This approach will ensure maximal independence. This is also an approach many European countries have adopted, and it has worked very well so far.
I have not covered all the pitfalls of balancing judicial independence and accountability and all solutions to them in this essay. However, I have given a brief overview of available options, and I think that my proposals are sound and reasonable.