The Burden of Politicized Justice

This week the Bagehot column in the Economist takes a look at the wild proliferation of judicial inquiries initiated in the United Kingdom, commenting that the calls for these activist judges to enter the realm of politics feeds off a deepening public distrust of their elected officials.  Bagehot writes, “a growing number of claimants now seek–and obtain–judicial reviews of decisions made by public bodies, with judges asked to ponder everything from terrorist control orders to planning decisions.

As a lawyer working in a number of emerging markets featuring weak rule of law systems, this rise in the use of judicial inquiries as a policy instrument – and, at times, a weapon against opponents – is deeply troubling. 

The over-use of these types of inquiries cause untold damage upon thepolicy agenda, confusing roles of branches of government, and creatingcrippling delays in the process of basic governance.  The investigatoryadventurism can of course also come from the other side, as anyone whohas watched the absurdity of the U.S. Congress forming panels onbaseball and video games at a time when the country is mired in war andeconomic crisis.

The argument raised by Bagehot brings to mind an important 2009 article by the legal scholar Adam Dodek, which I recommend.  In Judicial Independence as a Public Policy Instrument,Dodek focuses on two examples in the Canadian system in which thesejudicial inquiries failed to produce a high quality result whichcoincided with the public’s hunger for answers, resulting in adegradation of judicial independence. He writes, “Outside of publicinquiries, there are other extra-judicial functions that governmentsassign to judges in the attempt to cloak political decisions with an aura of independenceremoved from the taint of the politics. The apolitical façade usuallyholds but at times it breaks down and when it does, the political natureof such decisions is readily apparent. The involvement of the ChiefJustice of Canada in the selection of members for the Order of Canada,Canada’s highest honour, is a case in point.”

At the moment itappears that we are due to see a steep rise in the executive appointmentof judges to take on public policy roles – and the chance that thiswill result in a decreasing public trust in the judicial system is muchto high to be worth the risk.  It’s time to start coming up with somenew ideas to undertake these inquiries (public ombudsmen, etc.), beforethe pessimistic prophecy is fulfilled and the institutional lines areblurred beyond recognition.