30 June 2013

Function of judges of the federal Supreme Court

In the previous post I presented my idea that a supreme court of the European federation should have the function of a constitutional court and at the same time a court of last resort on the top of the federal judicial system. Now I will deal with the concrete form of the court, namely with three questions – how many members (judges) the court should have, for how long time the judges should hold their function and in what way they should be installed in their functions.

I start with the size of the court. What number of judges would be the most suitable for the supreme court of the European federation? The court that I took as an example, the Supreme Court of the United States of America, has nine judges. Such number seems to me however low for purposes of the European federation, especially because a role of European constitutional courts is somewhat broader than the constitutional role of the Supreme Court of the USA. The Federal Supreme Court of Switzerland presents a wholly different number – it has 38 judges (in the present time). This number can seem surprisingly high in view of the size of Switzerland but it is due to the fact that there is not a fully developed federal judicial system of more degrees in Switzerland (the FSC was the only federal court for the long time). The Court of Justice of the European Union which can partially be compared to a constitutional court has 27 judges at present which is the number corresponding to the number of the member states of the community. The constitutional court of Russia has 19 judges which I regard as being in a reasonable range. The number of judges of the supreme court of the European federation must not be to high in order that the most important things can be heard in a plenary session (the number of 27 or even higher would be too high for that) but it must not be also too low in order that a sufficient number of collegia with lower number of judges to hear appeals from federal courts of lower degrees and to deal with constitutional complaints can be made. Finally, I came to the number 19, primarily on the basis of the number of collegia of the lower number of judges. If one of functions of the supreme court of the European federation should be to judge constitutional complaints that every citizen can file as it is common in practice of many European constitutional courts it can be expected that a number of such complaints will not be inconsiderable, so the number of collegia must correspond to it. For that reason I suggest to create six collegia and because the lowest reasonable number of judges of one collegium is three it makes together the resulting number 18. The president of the court should have a special position and should not participate in any collegium, he (she) should (in addition to other duties) only participate in plenary sessions and chair them. Nineteen judges may seem many for plenary decision making but similar numbers are known also from elsewhere (for example, the plenum of the constitutional court of Ukraine numbers 18 judges, the plenum of the supreme court of Finland as well); if we weigh up that nineteen persons can decide whether laws are constitutional that hundreds of millions people will be governed by, it is not a high number at all.

The second question is how long the judges of the supreme court of the European federation should hold their functions. There are two possibilities – lifetime tenure or for a determinate period of time. Appointment for lifetime naturally is also appointment for a limited period, only the period is not delimited in advance and usually is longer than terms determinate in advance. Nonetheless, judges in many states where appointed for lifetime have an obligation to retire after they have achieved a certain age and if a fact is added that a minimal limit of age of a candidate is determined is some states, appointment for lifetime in fact is appointment for a period that must not exceed some concrete number of years. It is better in that case right away to determine a determinate period equal for all judges which I prefer. And how long the period should be? It should represent balance between change and stability. Too long term of mandate of judges could result in enforcing outdated view at organization of society that accords not with changed societal reality, too short term of mandate on the other way could lead to frequent alterations of the Supreme Court's opinions and so to certain legal uncertainty in some measure. I take a period slightly exceeding 10 years for the best for the term of mandate of a judge of the supreme court of the European federation. I chose the term of 13 years, for that ground that the given number overlaps not with election cycle to the Assembly of the Union (4 years) and to the Council of Chancellors (5 years). A question is connected also with this number whether members of the supreme court should have the right to re-installation after their mandate has expired. I believe that it is not suitable, just due to length of the mandate: a mandate for twice 13 years or close to it in fact would be a lifetime mandate.

The last question remains, namely a way of installation of the judges of the supreme court of the European federation in their functions. I was hesitating here long before I decided for the solution. Because the supreme court (in the concept that I write here about) is one of three most important state bodies and if both the House of People of the Assembly of the Union and the Council of Chancellors are directly elected by citizens in my suggestion, I put a question to me whether the third of the most important state bodies should also be directly elected. Popular election of judges is not an unknown thing, it is under way for example in Switzerland in Europe (judges of lower courts), in the United States of America outside Europe (in state level, again mostly judges of lower courts but also of highest courts somewhere). So there are concrete experiences and there is also a long-lasting debate about advantages and disadvantages of popular vote of judges. It is stated as an advantage of popular vote that judges elected this way have greater responsibility to the people and have more respect to public sentiment or that direct election gives a legitimacy to the judges to be self-confident counterweight to other components of the state power; it is stated as an disadvantage that people are not able to consider quality of candidates and tend to choose according to partisan or secondary criteria or that directly elected judges can be influenced in their decision making by pressures of those who supported them in the election campaign (with money). Both kinds of arguments are weighty and do not facilitate a simple, prompt decision. There is an objection against popular vote of judges that it is purposeless because judges anyway must judge a thing by correct interpretation of law and there is no place for subjective beliefs in it. But it is not true; so why courts of highest levels judge in collegia (senates) and decide by voting if law can be applied only in sole way? I will introduce two examples of subjective (and most likely unconstitutional) decisions of the constitutional court of the Czech Republic which made me to ponder popular election of judges of the supreme court of the European federation.

In 2008, the right-wing government of the Czech Republic consisting of political parties loaded in favour of influential business groups and connected with them through corruption introduced (through the parliament) limitations (“ceilings”) on levies in the system of public pension and medical insurance for highest income groups (including great firms). These changes caused a loss in amount of (in conversion) 1,46 milliard euro in the public health system only in the first year of the respective law's force and the health system went further down in next years (the government called it a result of the global economic crisis). In order that the health system collapsed not the government introduced (through the parliament) charges for a visit to a doctor, for a hospital stay and extra charges to medicines to compensate the loss mentioned above (the official governmental justification was that people excessively use health care and waste medicines). It was in fact a transfer of (part of) tax duty from the richest to the middle classes and the poor (a typical neoliberal agenda known Europe-wide). The opposition termed it breaking the constitutional article which says that“ citizens shall have the right, on the basis of public insurance, to free medical care and to medical aids under conditions provided for by law”. Medical charges then came to the constitutional court which decided by close majority of votes that they are in conformity with the constitution. A core of its decision was that amount of the charges was not set so high that anybody would be kept from access to the public health care. The judgment even insinuated that free health care relates to the totalitarian communist regime (in which it really started – one of paradoxes of that age) as if it should be restricted in a democratic regime and acceptability of medical charges justified by reference to Hammurabi's code of law of ancient Babylon (!) that prescribed to pay for medical care as if no social progress could occur since than. The constitutional court itself thus by its own judgment (strangely justified in addition) authorized violation of the constitutional article which access to free medical care conditions only by paying public health insurance. In addition, the assertion of the court that amount of medical charges is no obstacle to access to health care proved to be untruth because the charges appreciably afflicted in particular old people who need health care in a higher degree and even mainstream mass media (which constantly uncritically favour whatever right-wing government and which after pronouncing the judgment predominantly exulted that the left-wing opposition succeeded not at the constitutional court) from time to time bring news about pensioners who reduce purchase of foodstuff to be able to afford medicine charges (that increase after their introduction which the constitutional court “could not” anticipate) or even visit not a doctor in the case of health inconveniences because they presume not to be able to afford to buy medicines that the doctor would prescribe to them. The constitutional court of the Czech republic gave another similar ruling recently. A right-wing government (other than in 2008 but corrupted even more) in 2012, in defiance of opinion of most citizens, pressed donation of public landed property in value of approximately 2,9 milliards euro to the catholic church with official substantiation that it is a remedy of injuries of the communist totalitarian regime (the public believes that it is only a pretext and that this property at least in part should be thieved by influential business groups connected to the government parties). The respective law (adopted by manipulating voting procedures in both chambers of the parliament and by bribing some deputies) came to the constitutional court which confirmed it as adopted in conformity with the constitution and not opposing it. One of the judges of the constitutional court attacked the decision of the court in his dissenting opinion writing that the constitutional court disregarded unlawfulness and immorality of the manner in which the respective law was pressed in the parliament, further the fact that the government conceals what concrete property should be given, that a principle of equality was violated because the catholic church should be more than abundantly compensated while others damaged in the age of the totalitarian regime received only small or even no restitution and that donation of immense property to the catholic church will appreciably raise its influence in the society which endangers religious neutrality of the state. The public feels this decision of the constitutional court unfair, there are voices that the constitutional court does not the job for which it was established.

Two mentioned examples of low-quality judgments of the court that should protect constitutional rights of the citizens but does it not can be attributed to low level of the society in the Czech Republic (as in other post-communist countries) but I believe that there can be a danger also in western Europe that courts guarding constitutionality may not put the proper accent to the rights of the citizens. From this point of view the argument supporting popular election of judges seems to me fully legitimate that says that judges elected this way will more observe interests of the people. In spite of it, I am not sure that it is possible to hold elections of 19 judges of the Supreme Court in a Europe-wide frame so that it has the effect that I have mentioned. After all, judges stand not in the main focus of mass media and it is more difficult to get information about all candidates for citizens in a wider European extent if no pan-European mass media exist. It would be also an organizational problem – how many candidates would have to run if 19 of them should be elected? Therefore I believe that especially in the very beginning of the European federation, it would be a problem to satisfactorily choose 19 judges by popular election so I decided for traditional appointment though I rejected the popular vote not entirely. In the end, there is one problem yet connected with appointment – namely whether appointment of the judges of the Supreme Court should be committed to the executive power with ratification of the legislative power as it is common in many states. The problem is that I wrote earlier that both chambers of the European federal parliament should be fully equal and it would follow from it that both chambers would have to deal with candidates proposed by the Council of Chancellors – and it would be complicated and lengthy. It would be also possible to use a joint session (as in Switzerland) but thus the principle of their equipollent status would be gone because of their different size. Finally I decided to divide appointment among three components of the state power – one third of judges appointed by the Council of Chancellors, one third by the House of the People and last third by the House of States. Altogether it is 18 judges and the last, just the president of the court would be chosen in mentioned popular election. Significance of the court's president (his/her competencies) should be in accordance to the fact that he, unlike other judges, was elected directly by the citizens, nevertheless I will get on to it in another post.