In this latest RevDem Rule of Law podcast, assistant editor Teodora Miljojkovic discusses the different models of judicial independence in Spain and beyond with Pablo Castillo Ortiz.
Dr Castillo Ortiz is a Senior Lecturer in Law at the University of Sheffield. He has recently published the Open Access monograph Judicial Governance and Democracy in Europe with Springer.
Teodora Miljojkovic: Judicial independence has been a hot topic in the EU for the last decades, and not only for the reasons of democratic and rule of law erosion. More generally, the question of judicial reforms has been at the center of both scholarly and public attention. For a long time, international standard setting organizations have endorsed the principle that more is better when it comes to the degree of judicial independence. But the growing body of research calls for a re-examination of the common wisdom regarding the role and organization of courts. Your recently published book, Judicial Governance and Democracy in Europe seeks to examine to what extent the existing mechanisms for judicial governance have contributed to the stability and quality of the democratic systems in which they are implemented. In the book, you take an interdisciplinary politics and law perspective, and you combine empirical and theoretical considerations. Beyond the world of lawyers and political scientists, there is a certain lack of clarity on what judicial governance even stands for. When we talk about the judiciary, I feel that the general public does not really know what it means to interfere with judicial independence and what is the value of judicial governance in the first place. Can you explain to our readers and listeners what judicial governance is and what types of judicial governance model there are in Europe?
Pablo Castillo Ortiz: I think it’s a very pertinent question. Actually providing a definition of judicial governance can prove tricky, because what we generally call judicial governance is actually a set of different functions that concern judiciaries, but do not concern adjudicating upon the law in specific cases, which is the main function of judicial actors. Sometimes people become confused on this topic.
Judicial governance is about managing judicial careers. It’s about how to recruit judges for a judicial system and how to promote them. It’s also about how to and when and why to discipline and sanction judges, which is very important because whoever has the power to sanction judges has a lot of power over the judicial branch.
But judicial governance also goes beyond that. It’s about the management of the judiciary, the allocation of cases to specific judges, and the allocation of workload. It’s about automation, it’s about software for judicial functions, and it’s about allocation of resources and financing. This whole range of functions concerns judicial governance.
We have different models of judicial governance and this is interesting for many reasons. One of them is that it allows us to compare. We like this variety and this diversity as comparativists precisely because we have this diversity at the academic level, so we can engage in comparison and we can try to understand which model does what in which way. In Europe, we have this classification dating back to at least one decade ago by Michal Bobek and David Kosař in which they propose a classification into the judicial council model, the court service model, the ministry of justice model, hybrid models, etc. In my book I go back to that classification and I try to classify different countries into these models of judicial governance. Now, going back to your question, how can we define these different models of judicial governance? Well, in the judicial council model one single institution, which is very often constitutionalized, has concentrated power over the management of the judiciary, the management of judicial careers, and the management of judicial governance in general. We have examples of this model in Italy, for instance, or in my country, Spain. Then we have the court service model, in which we have a separate organ that manages the judiciary at the administrative level, at the managerial level, and sometimes at the financial level also, but which does not have power over judicial careers.
This is very important. In the UK, for instance, we have the court service institution, the court service model in England and Wales, and also a court service model in Scotland and in Northern Ireland. In Scandinavian countries there is also a separate institution with powers to manage the judiciary, but without powers over judicial careers. And then we have the ministry of justice model in which the government, and in particular the ministry of justice, still has at least formal powers over judicial careers and over the management of the judiciary. But, in practice, we know that in many countries based on the on the ministry of justice model, which are a minority at the moment in Europe, this power is exercised by the ministry of justice, but also through some informal mechanisms, and by the judiciary. So, there is some sort of dynamic of cooperation between the ministry of justice and judges, especially higher judges.
Thank you so much for this overview. I feel it’s really important to lay this out because, usually when we discuss judicial governance, I think that the judicial council model is the one that comes to the minds not only of the public but also to lawyers. The great contribution of your book is that you examine the other models and the benefits that they have in comparison to the judicial council model. But what I would like to emphasize is that usually the scholarship and even the public discussion focuses on the effect of this judicial governance model on judicial independence. So, basically, we are always discussing how to make the judiciary more independent, and how to organize it in order to be more independent. What you do in your book is something different and very valuable, but also very hard. So I would like to discuss whether you had any problems with your methods, because what you are trying to do in your book is to connect the judicial governance models with the level of democracy.
You are empirically examining countries with different judicial governance models and you are examining them from the level of the quality of democracy in those countries. We know that the judicial council model is endorsed as best promoting the rule of law and judicial independence. But your research shows that countries where judicial councils exist score worst when assessed by all the main indexes of democratic quality. You show that the court services model seems to be more positively correlated with democratic quality. We may think that if the judiciary is more independent, then there is better democracy in place. But it seems that that is not the case. So, what are the explanations for these findings? What are the policy implications of this finding? Should we be reconsidering what models we are endorsing on the international level?
This is the starting point of the book. This is a very interesting puzzle. When you do a simple correlation between models of judicial governance and democratic quality, there are many countries based on the judicial council model that do very well in terms of democratic quality. But, actually, countries based on the court service model, on average, do a little bit better in terms of democratic quality. However, because we know that correlation is not causation, what I wanted to do in the book is actually try to find out why that is the case and what is behind it.
This is the initial puzzle that I found in my preliminary analysis. What I found is that, in general, what is behind this correlation is the fact that countries that implemented the judicial council model did it when they were exiting authoritarian periods.
Therefore, they have younger democracies that have had less time to consolidate, whereas countries that are based on the court service model are also older democracies which have had a longer period to consolidate. So countries based on the judicial council model do a little bit worse on average in terms of democratic quality, but this is not because they have a judicial council. In terms of policy implications, when we include in the equation other factors such as the level of modernization of the countries, judicial councils are not detrimental to democratic quality. So having a judicial council is not bad for democratic quality, and having a court service is not particularly positive in order to have a better level of democratic quality. The second finding of the research that I found very interesting is that models of judicial governance, when it comes to net effects and statistical analysis, do not seem to have a very significant impact on the level of democratic quality of the countries.
What does have a big impact in my analysis is that modernization has a clear connection to the levels of democratization of the countries. This is the factor that has the main impact in terms of democratic quality. In a statistical analysis, when it comes to net effects, judicial governance does not seem to have a very strong connection to democratic quality. Actually, it does not seem to have any connection whatsoever to democratic quality.
However, and this is the third finding, it does have an effect on democratic quality when we consider specific countries and when we consider the interaction of the model of judicial governance with other factors.
You say that the model of judicial governance alone does not contribute significantly to democratic quality. But what if we talk about the reverse scenario? So, if there is a reverse correlation whereby the quality of a democracy is worse, then I think judicial governance models are more important. I would really want to discuss one example of the judicial council model and how the story played out in Poland and in Hungary, and how the story played out in Spain. The structure is different, but all these countries have a judicial council model. But I think that their judicial governance model in correlation with their democracy level really played an important part in the picture. There are scholars who say that judicial governance models do not specifically enhance judicial independence, and that also relates to the research which discusses that the guarantees of judicial independence do not really match with the practice of judicial independence in a country. The example that is often mentioned in the literature is the Czech Republic which was a post-communist third wave democracy state which refused to accept the judicial council model. Yet its level of judicial independence has been shown to be relatively high in the last decade. Do you think that is because of the judicial governance model, or does it have something to do also with the level of democracy? If the Czech Republic has a higher level of judicial independence due to the judicial governance model could we then argue then the institutional design does not define judicial independence as much as the legal culture?
Judicial independence comes down to a number of factors which are both de jure and informal. The Czech Republic is a country that is achieving high levels of judicial independence and high levels of democratic quality regardless of the fact that it is not based on the judicial council model. Judicial governance plays a big role in democratic quality when it comes to countries with lower levels of democratic quality.
One of the findings of the book is that countries that have very low levels of electoral democracy, such as countries that are outright dictatorships like Russia or Belarus, obviously are never based on the model of independent judicial councils because that is incompatible with authoritarian control of the judiciary.
For countries with low levels of democratic quality, or which are outright authoritarian, judicial governance seems to be correlated in this way. Judicial governance is associated with this type of country in the sense that the leaders of these countries are allergic to having independent judicial institutions and independent institutions for judicial governance.
However, when it comes to countries with high levels of democratic quality, what we find is that judicial governance does not seem to be so relevant. The Czech Republic is based on the ministry of justice model, and still achieves a high level of democratic quality, and the same is true for Spain, which is based on the judicial council model, although not what the literature calls the Euro-model. In Spain we have a judicial council whose members are appointed by the parliament by super-majorities, not by simple minorities. Sweden is based on the court service model and has a high level of democratic quality. All these countries achieve very high levels of democratic quality with very different models of judicial governance. Therefore my analysis suggests that what matters in these country is modernization as a background condition. Membership of the EU could also play a role and then high levels of judicial independence and low levels of judicial corruption, regardless of the type of model of judicial governance.
This is something that I found very interesting, and this applies to the example that you were mentioning of the Czech Republic. In the Czech Republic, there is a ministry of justice model. The Czech Republic achieves high levels of judicial independence and high levels of democratic quality with this model.
The model of judicial governance can make a difference, according to my analysis, in countries that do not have such high levels of modernization, and that are not Member States of the EU. In these countries, with similar background conditions countries based on an independent judicial council model achieve intermediate levels of democratic quality.
Countries in which there is a dysfunctional judiciary that is controlled by the executive and without judicial independence achieve very low levels of electoral democracy quality with other similar background conditions. Sometimes these countries are outright authoritarian.
It’s very interesting how judicial governance plays out in these non-EU countries, especially because of the EU and Council of Europe pressure. But going back to the question of judicial governance models you have mentioned Poland as an interesting example. You have discussed how the judicial governance model in Poland correlates with democratic erosion. So, basically, I want to know more about this. As you mentioned, in Spain, you have a different model of judicial council. What would we do if, for example, Poland said “why can’t we have this”? So, my question concerns the abuse of references to successful judicial governance models. This abuse of comparative legal practices and also comparative theory by illiberal leaders is quite dangerous. It is important to discuss the benefits and the downsides of these models. This matters so much that it actually goes beyond just a scholarly discussion.
Yes, I’m very happy you asked me this question because this is something that I have been addressing in my research and also in some policy papers that I have prepared recently. I prepared one for a think tank in Spain. I think it is really interesting because it is literally exactly that. The Polish government sometimes tries to make references to the Spanish model of judicial governance to say “if Spain has it, why can’t we have it”? The answer is that they do not have the same model as Spain, and we can discuss whether the Spanish model is optimal or suboptimal. We are having a massive debate in my country as we speak about whether we should change the model of judicial governance to redesign it in line with European standards and have a majority of members of the council elected by peer judges. But at present in Spain, the judicial council members are appointed by the parliament through supermajorities, and that forces an agreement between the government and the opposition. This is not the model that exists currently in Poland. So, to answer your question, if Poland were to adopt the Spanish model that would probably be an improvement over what there is in Poland as we speak. Possibly it might not be good enough because there is a model that, according to European institutions, fosters further judicial independence, which is what is called the Euro model. But I do believe that the Spanish model is different and qualitatively better than the model that exists in Poland at the moment which allows for governmental control over the judicial council.
There are two problems in this because, first, the Spanish model in countries where there is high political polarization could lead to deadlock. It could lead to problems where you cannot elect judges. Secondly, I think that this could somehow prompt further polarization of judicial appointments. What if these countries do accept a Spanish model? At the moment, because the illiberal governments do not have a two-thirds majority in parliament it is fine. But in Hungary it would be a disaster. Once you have a government that can achieve a super-majority, this model does not work. This is how judicial governance is connected to the quality of democracy and to elections as well. Maybe at this moment the Spanish model would work in Poland. But what if that is a problem?
Absolutely. I agree with you. Something that I’m very proud of in the book is that I use not only statistics, but I also do qualitative research. In particular, I do qualitative comparative analysis which allows consideration of how factors interact in specific cases. I find this really helpful.
So in the case of Hungary, it is true that a super-majority probably would not be enough to secure judicial independence because of the specific conditions and how the electoral system is playing out. In the case of Poland, it probably would be an improvement.
In the case of Spain, there is indeed a deadlock in the appointment of members of the Judicial Council. And there is an ongoing discussion.
Something that I am always very keen on insisting upon is that, when it comes to designing constitutional institutions, be it judicial councils or constitutional courts or even mechanisms for constitutional amendment, there is no perfect solution. We always have to confront trade-offs.
If Poland were to move to the Spanish model, there would be other trade-offs and there would be advantages and disadvantages.
However, Spain has achieved a high level of democratic quality during the last decades with this parliamentary model of appointment of members of the Judicial Council by super-majority. And we know that Poland, with the current system of appointment of members of the Judicial Council and with the control of the judiciary and the Constitutional Tribunal by the executive, is having a decline in its democratic quality. So, this is the situation. The Spanish model is probably not perfect, but we can say that the Polish model has probably proved to be more imperfect so far.
The non-EU countries which are somehow forced to align with the EU and Council of Europe standards are forced to embrace the Euro model. This model of judicial governance presupposes that the majority of the council are judges. It is the model where judges primarily elect judges. There are other members in the council as well, but the point is that judges elect judges. But in some of the non-EU countries the problem is that there is a huge level of corruption and interdependence within the judiciary itself. One example is Georgia, which was the subject of a previous RevDem interview with Nino Tsereteli. We then have a new problem. This Euro model does not work in these new constitutional realities. There is a certain paradox: on one hand, Europe is strongly suggesting that these countries which are on the EU accession path adopt the Euro model, while we at the same time can see that in Poland and Hungary this model simply doesn’t work.
So, what do you think? Maybe the Spanish model instead of the Euro model could be a solution for these new countries where there still needs to be some kind of democratic accountability of the judiciary in order not to fall into this trap of corporativism among the judiciary.
In defense of the Euro model of judicial governance, I have to say that one of my findings is that countries that have other institutions for judicial governance have similar background conditions. Whenever they have a model of independent judicial councils and they have an independent judiciary, they achieve slightly higher levels of democratic quality. So, in those instances it could work. The Euro model of judicial governance is not an end in itself – it is a means to an end. And the end in these cases is to consolidate the rule of law and to consolidate democracy. Now, to the extent that the Euro model of judicial governance can contribute towards that, it is great. However, and this is probably my caveat vis-a-vis European institutions and their suggestions for these countries, what matters is not implementing a judicial council model based on, for instance, the Italian experience, which can work sometimes, or that we can tweak sometimes to adapt to specific country circumstances. What matters is that we achieve high levels of judicial independence, low levels of judicial corruption, and ultimately high levels of rule of law quality and democratic quality. Now, if we can achieve that through the model of independent judicial councils, that is great. If we have to finesse that model, that is all right.
So, in terms of policy, my reflection after this research is that this is not about implementing judicial councils – this is about helping countries achieve higher levels of democratic quality and rule of law stability.
If we can do that through independent judicial councils, and through the Euro model, that is great. If we have to finesse it a little bit to adapt it to national circumstances, then I think European institutions and countries should be open to that. Now, I also understand that there is a massive discussion in the field, and that different colleagues have slightly different views on this. It is very important that we start discussing this issue, which a lot of colleagues are doing already with evidence based approaches, which I think is very welcome news. I try to do this with my little book and I know that some other colleagues are also doing the same. We are trying to advance knowledge, using evidence in order to understand what is best and what works and what does not work when it comes to the rule of law, judicial independence, and democratic quality.
Yes, exactly. That is why I said that the empirical evidence that you put forward in your book is of immense value, because in constitutional theory we had in mind these perfect models, perfect example, and best practices. But the problem is that the last decade has shown us that these best practices can be abused. That is why we now have to go into each context specifically. But obviously there are dangers with going into specific contexts, because then again illiberal leaders would say “why does your interpretation of the context matter when it comes to our policy on our judicial governance?” As you said, there are always trade-offs. But going towards evidence-based analysis of judicial governance is necessary because, as you said, it is just a means to an end, not an end in itself. You mentioned that you wrote a policy paper for Spain and that there is a huge debate. So where do you stand in that debate and what is your position when it comes to the topic?
It is a really difficult debate because there is a deadlock in Spain. The government and the opposition cannot agree on appointing new members of the Judicial Council. Therefore, the mandate of former members has been extended, which should not be the case. The main opposition party, Partido Popular, argues that we should have new members at this point. They have put forward several reasons to refuse agreeing with the government on new members of the Judicial Council. One is that they say that a majority of members of the Judicial Council should be appointed by pure judges following the standards of the Council of Europe or the GRECO (Group of States Against Corruption) Group.
My position is that the proposal of the opposition party in itself is not bad. It is okay to have a discussion on whether we should move from the super-majoritarian parliamentary model in Spain to a more judicial oriented model.
I think it is reasonable to the extent that this proposal is able to reinforce judicial independence and minimize judicial corruption. Spain, by the way, achieves good levels in both of these dimensions.
In terms of judicial independence it is, of course, very good. In terms of judicial corruption, there does not seem to be much in Spain at the moment. But if we can reinforce even further those two dimensions, then moving to a different model of judicial governance would be great. However, I do not agree with the opposition party in their position of refusing to agree to new members of the Judicial Council; I think that position would be reasonable in a scenario in which the quality of democracy in Spain was deteriorating. But that is not the case. I think Spain is achieving healthy levels of democratic quality with the current model of judicial governance with parliamentary appointment of Judicial Council members by super-majority. So, my position is that the government and the opposition should sit and discuss which model of judicial governance is best for Spain. The opposition party should ultimately agree with the government on the renewal of the Judicial Council regardless of whether the model of judicial governance is changed or not. If they win the election, they can change the model of judicial governance later.
On the side of the government, there was the temptation in response to the refusal of the opposition party to negotiate on members of the Judicial Council to go for a majoritarian process of appointment of Judicial Council members. That proposal was dropped, which was a good thing, because that was a very dangerous path.
I think that the government should forget about these ideas, which they have done for the moment. That is my position on the situation in Spain, which is very complex like in many countries.
So basically there is a discussion, and the reform is on hold? Do you think that there will be some steps forward either in reaching the political agreement, either on the appointment of the members, or on the reform taking place? What do you think will happen in the next months?
I’m not sure. I don’t see the reform of the system of appointment happening before the next election, which will be at the end of the year. I think that, if after the next election the conservative main opposition party Partito Popular comes to power, then they might reform the system of appointment of council members. I am hopeful that in the next few months there will be some sort of agreement on the renewal of members of the Judicial Council under the current system. I can agree that having a different system of appointment for some of the members of the Judicial Council, which is more in line with European standards, could be a great idea. It is something that can be discussed and, depending on how it is implemented, it could be positive. I also consider that, with the current system of appointment, Spain is a stable democracy with a very good level of judicial independence. Therefore, there is no reason to refuse the renewal of the council. I hope that the main political parties in the country will be able to reach an agreement in the next few months. But I don’t know.
When this whole drama over judicial appointments in Spain started, at the same time the Polish cases were being decided before the European Court of Justice (ECJ). So there was this discussion about whether the Spanish case should end up before the ECJ as well. Do you really think that? What do you think about this new prerogative for the ECJ to set the standards on judicial independence and somehow guide judicial design in the Member States? Do you think that the standards they set could be valid and applied in all the countries? Or do you think that this was a specific solution for this one problem that happened in Poland? Do you think that this jurisprudence of the ECJ will survive beyond the illiberal regimes?
The European Union has a mandate in the Treaties to uphold the rule of law.
Whenever the rule of law is under threat in a Member State I think that it is right for the EU to intervene, and it is right for the European Court of Justice to set the standards in cases in which the rule of law is seriously under threat.
I don’t think that’s the case of Spain at the moment. Therefore, I don’t think that it was justified to compare the Polish case to the Spanish case. For sure, there are many things that need to improve, but Spain is rating well in terms of rule of law, democracy, etc. Now, another problem here is with how we measure rule of law, democratic quality, etc. We have two options here. First, we can measure based on international standards. For my research, for instance, I use V-Dem (Varieties of Democracy) because I think it is one of the main standards. The literature discusses whether indexes like the Freedom House Index or V-Dem or any other are reliable. Obviously, they are not perfect, but the alternative is to make assessments based on our intuitions, and I think that is even worse. When it comes to Poland and Spain, international indexes like V-Dem, Freedom House, and many others consistently rate Spain as a country with a good level of democratic quality. This is not the case for Poland, which unfortunately has had some backsliding. This is even more pronounced for Hungary. Therefore, in these cases, I think it could be more justified for the European institutions to intervene in these countries in terms of the rule of law.
This transcript has been edited for length and clarity.In collaboration with Oliver Garner.