As part of a three-day conference ending Thursday, former Pakistani Chief Justice Tassaduq Jillani cautioned his Israeli audience at the Hebrew University of Jerusalem about the paramount importance of fighting for judicial independence – and he was not speaking metaphorically.
Jillani retold the story to the Independent Conference on Judicial Independence, but with his own insider personal commentary, about how he and other Pakistani judges helped to thwart then-Pakistani president Pervez Musharraf’s attempt to essentially cancel the judicial branch.
Responding to pressure to delay a ruling shortly after a group of lawyers were bombed and when he knew the decision would risk Musharraf’s ire, he said, “Let them blast the court – we’ll announce the judgment on the street and on Constitution Avenue.”
The support of Jillani and other judges for the then chief justice, who Musharraf had tried to fire, helped lead to a counter-revolution ending in Musharraf’s downfall and trial for treason.
But just as remarkable as his personal story was Jillani’s appearance, even if virtual, at a public Israeli legal conference when Israel and Pakistan are not on positive terms, to say the least.
The hook which connected Jillani’s judicial independence story to Israel and the conference was Hebrew University Prof. Shimon Shetreet, who is also the president of the International Association of Judicial Independence and World Peace.
The former Pakistani chief justice recalled how a lawyer for Musharraf had misquoted a line from a book by Shetreet out of context, but refused to share the original copy of the book with him to check the full passage.
Jillani was eventually able to get a copy of the book to check the context – which Shetreet himself sent by courier, since it was generally out of print.
Shetreet, both in his book and at the conference, extolled the critical virtue of judicial independence.
Former British chief justice Lord John Thomas, also speaking virtually, talked about the “huge transformation in Europe in recent years” and the “need to try to ensure that modern stands of judicial independence were applied to a very different political structure.”
PUBLIC SECURITY Minister Omer Bar Lev said that reminders about the “importance of judicial independence” are “needed more than ever… these matters have been abandoned. We call to the public and say we promise we have not forgotten and we will protect the judicial branch on all fronts. This government will struggle with anyone threatening the independence of the judiciary.”
He said that judges must have independence both as individuals and as a branch of government.
The situation must be that “judges are only bound by the law, and the parameters of their service must be protected from improper interference. I reject all public servants’ statements, which have been heard many times and even from the Knesset podium, against judges,” he said. “These statements are dangerous to democracy.”
Bar Lev did acknowledge that “the judicial branch is not perfect, and there should be criticism as long as it is substantive.”
ISRAEL BAR Association President Avi Himi was slightly more direct than Bar Lev in slamming Likud MK David Amsalem for an “unbelievably” problematic attack on Supreme Court Justice David Mintz.
Himi recalled the attack last week, still without mentioning Amsalem by name, in which the Likud MK stood at the Knesset podium and said Mintz was “a disgrace and must have been drunk” when he wrote an opinion rejecting Amsalem’s standing to challenge a government decision.
While part of what was unusual about Amsalem’s attack was that Mintz is considered one of the most conservative and Likud-friendly justices on the court, part of it was also the nakedly personal nature of the attack.
“The only way to view it [Amsalem’s statement] was as a threat against judges: Whoever doesn’t do what MKs like will get publicly attacked,” the IBA president said. “This undermines the independence of the judiciary and is improper in a democracy.”
Himi said he believed that “the public supports the courts much more than surveys indicate… but I am worried about the reduced support in surveys,” adding that there was no place for politicians to personally attack the courts simply because they did not like a specific decision.
Rather, he said, criticism of the court was appropriate only when it was directed at the substance of a specific decision, without getting into personal issues.
He also addressed the mechanism for appointing new justices to the Supreme Court, acknowledging that the current method is far from perfect, but positing that it does provide a certain balance of interests.
Himi, whose IBA is engaged in a stalled negotiation with Justice Minister Gideon Sa’ar and the Supreme Court over selecting four new justices, said that it is crucial to limit the influence of populist waves from the political class.
Former deputy chief justice Hanan Melcer, speaking from quarantine, suggested that the judicial budget and some administrative aspects of the branch should be shifted from the Justice minister’s authority to that of the Supreme Court president.
He said this would further support judicial independence.
UN SPECIAL Rapporteur (for judicial independence) Diego Garcia-Sayan said that, “every citizen should see judicial independence as” critical to preserving “truth, freedom and guaranteeing impartial justice.”
He discussed different benchmarks for tracking judicial independence.
These included to what extent: judicial freedom of expression and assembly are protected, they control their own standards for training, conditions of service and tenure and they receive immunity from problematic suspensions or removals.
He warned that “many countries are threatening judges, and [the UN] established a special rapporteur to try to help. Weakening the power of the judiciary leads to weakening human rights.”
Hebrew University Rector Barak Medina said that “I am less worried about judges using a loophole [in a statute] to overly assert themselves over the Knesset than I am that the court will use a loophole relating to norms to run away from restraining anti-democratic behavior by the executive and legislative branches.”
Medina said this was a “special concern in corona times when basic rights are restricted – and many try to do so without full information and transparency to the public and try to pass fundamental changes through regulations without the debate that comes with passing and debating full Knesset laws.”
Hebrew University Law School Vice Dean Keren Weinshall said that sometimes debates about the judiciary focus too much on whether the courts are acting efficiently as opposed to maintaining quality and effectiveness.
Though efficiency is easy to measure in terms of how quickly cases are opened and closed, effectiveness is harder to measure, she said, because each case has its own specific dynamics about what a good result might be for the parties involved.
Weinshall said that this issue is especially complex when judges push parties to settle due to lack of judicial time to invest in many cases – even though from a justice perspective, one side might have had a clearly better case if a trial was held.
Current Supreme Court Justice Yosef Elron warned that much of the political class and the public often get overly excited about hot front-page public policy debates, while ignoring the court’s role in safeguarding society’s socio-economically weak sectors.