In recent years, increasing tensions have been observed in various parts of the world between the political authorities and the judiciary. These tensions are manifested not only through reforms of the judicial system, but also through attacks originating from the political decision-makers undermining judicial independence and public confidence in the judiciary.
These practices take different forms: undermining of the judicial function as a whole, for example, through narratives portraying the judiciary as “politicised”, undermining of judges as individuals, through personal attacks or denigratory media campaigns, and undermining of judicial decisions, particularly when they are unwelcome to political authorities.
In certain contexts, pressure may also be exerted through the abuse of legislative power to overturn considered court approaches to law and justice often perceived by the public as indirect forms of influence or control as they ‘correct’ judicial decision-making.
Within this context, a central question arises: how can the judiciary respond to attacks and undermining without falling into silence — which risks leaving room for distorted narratives and may contribute to undermining public confidence in the judiciary — that could compromise, or appear to compromise, the independence of the judicial function?
The issue of judicial communication lies precisely within this tension. Freedom of expression is guaranteed to every citizen through our Bill of Rights Act, and that includes judges. Apart from national law we have obligations formed by international law in certain contexts.
In some cases, judges must intervene in public debate, particularly where judicial independence, the balance between the powers of the State, the proper functioning of the justice system, and the safeguarding of the rule of law are at stake. However, this freedom is intertwined with judicial duties of restraint and balance.
The IAJ First Study Commission is collecting national responses with the objective, through a comparative analysis of national experiences, to identify certain shared conditions of balance. The research aims to find criteria that allow judicial communication to avoid becoming either imposed silence or an improper politicisation of the judicial function. We would appreciate your view.
You can find the questionnaire at the button below: