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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Impartiality of the Judiciary

Piotr Mikuli

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 04 August 2020

Judicial review — Judicial accountability — Judicial independence — Judicial power — Fair hearing and fair trial

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  Impartiality of the judiciary is a derivative of the independence of the judiciary, which as such constitutes one of the most cardinal principles of the contemporary democratic state ruled by law.

2.  According to the Collins dictionary, the term ‘impartial’ means ‘not prejudiced towards or against any particular side or party; fair; unbiased’. Similar definitions are given in the Cambridge and Oxford dictionaries, according to which it means respectively ‘not supporting any of the sides involved in an argument’ and ‘treating everyone or everything equally, not bias’ (The Cambridge Advanced Learners’s Dictionary & Thesaurus; The Oxford English Dictionary 362). Webster’s Third New International Dictionary defines impartial as ‘not favouring one more than another’ and ‘impartiality’ as the quality or state of being impartial, ie freedom from bias or favouritism (at 1131). However, the legal meaning of the term ‘impartial’ and ‘independent’, as well as the mutual relations between the two terms, may sometimes be a result of the specificity of a national language and may differ from the English connotations. It seems, nevertheless, that the adjective ‘impartial’ relates both to courts and tribunals as well as to personal substrate of the judicial power, ie judicial officers—first of all to judges or members of the jury.

3.  Judicial independence and, in consequence, impartiality of the judiciary may also be currently perceived as important contents of the separation of powers doctrine. The scholarship often distinguishes the concepts of judicial independence and judicial impartiality. ‘Impartiality’ constitutes the judicial characteristic of disinterest towards parties and their causes in litigation, while ‘independence’ may be understood as ‘free from pressures from governments, funding bodies, armies, or any other source of state power or inappropriate influence that may possibly bear upon them’ (Robertson 3). Thus judicial independence often pertains to the organizational separation of courts and tribunals from the other branches of government, and certain guarantees connected with an apolitical nature of judicial appointments, while impartiality refers often to a state of mind or an attitude of judges in a particular case (see for instance Valente v The Queen (1985) (Can)). In this context, Justice McLachlin argued in the Canadian landmark case Mackeigan v Hickman that impartiality relates to ‘the mental state possessed by a judge’ while judicial independence concerns ‘the underlying relationship between the judiciary and other branches of government which serves to ensure that the court will function and be perceived to function impartially’ (Mackeigan v Hickman (1989) 826 (Can); see also Lee and Campbell 7). Jackson argues, in turn, that ‘independence has components of independence from certain forces and independence to do justice impartially’ (Jackson 20). Some constitutional lawyers argue that the two concepts, independence and impartiality, overlap each other (Peters 372).

4.  In the German scholarship, for instance, the notion of impartiality is close to the concept of a judge’s neutrality, which includes both his or her impartial relationship to parties as well as his or her objective attitude towards the case subject matter (Wolf 219). This is also confirmed by the case law of the Federal Constitutional Court of Germany (Bundesverfassungsgericht), which emphasizes that judicial activity requires unconditional neutrality vis-à-vis the parties to the proceedings and the subject matter of the proceedings, simultaneously stating that the desire for impartiality and neutrality in the judge is also a requirement of the rule of law (2 BvR 2628/10 (2013) (Ger)).

5.  MacDonald and Kong argue that: ‘[a] judiciary may be in principle independent, but in a particular case, a judge may not be impartial—that is, may display favo[u]ritism towards one party’. They also call attention that ‘[a] judiciary may be independent of the executive and legislature but partially in favo[u]r of interests other than the state’. In this context, they mentioned an example of corporations which may have the resources to influence judicial decisions improperly and a situation when a judge may refuse to convict obviously guilty murderers because he or she for instance disbelieves in a mandatory death sentence (MacDonald and Kong 856).

6.  Geyh argues, in turn, that one may observe three distinct but also in a sense overlapping dimensions of judicial impartiality: the procedural, ethical, and political ones (Geyh 493–551). The first consists in ensuring procedural fairness for parties in the litigation process; the second relates to encouraging judges to conduct themselves honourably and ethically; the third dimension—mainly regulated by elected representatives—concerns preserving public confidence in the courts. In the opinion of the author of this article, all the dimensions may not necessarily coexist together, since ‘what is impartial enough to assure parties a fair hearing in the procedural dimension may or may not be impartial enough to satisfy the public in the political dimension, which may or may not be impartial enough to ensure that judges are behaving hono[u]rably in the ethical dimension’ (Geyh 493).

B.  The Principle in International and Constitutional Law

7.  The notion ‘impartial’ emerges in a number of international human rights agreements: they all guarantee the right to ‘an independent’ and ‘impartial tribunal’ (see Art. 14(1) of the UN’s International Covenant on Civil and Political Rights (1966) (ICCPR); Art. 6(1) European Convention for the Protection of Human Rights and Fundamental Freedoms (1950); Art. 47 Charter of Fundamental Rights of the European Union (2000); Art. 8 (1) American Convention on Human Rights (1969); and Art. 7 (1)(d) African Charter on Human and Peoples’ Rights (1981)). The jurisdictions selected for this analysis encompass, apart from international law systems, selected states of the European Union as well as representatives of countries on other continents, ie the United States (US), Mexico, India, and the Republic of South Africa.

8.  The UN’s Basic Principles on the Independence of the Judiciary, of 1985, stresses that: ‘[t]he judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason’ (para. 2). Profound analyses of judicial impartiality may be found in the Bangalore Principles of Judicial Conduct 2002, where impartiality is treated as one of the important values for the judiciary apart from integrity, propriety, equality, and competence/diligence; the document states that impartiality ‘applies not only to the decision itself but also to the process by which the decision is made’, and, in addition to the need to observe basic requirements of impartiality such as a judge performing his duties without favour, bias, or prejudice, the external component of impartiality is also emphasized: ‘[a] judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession[,] and litigants in the impartiality of the judge and of the judiciary’ (para. 2.2).

9.  The UN Human Rights Committee (UN HRC) has ruled that the notion of impartiality used in Art. 14(1) ICCPR ‘implies that judges must not harbour preconceptions about the matter put before them, and that they must act in ways that promote the interests of one of the parties’ (UN HRC Communication No. 387/1989, Arvo O. Karttunen v Finland para. 7.2). The European Court of Human Rights (ECtHR) often links the concepts of independence and impartiality: if a court is neither independent nor impartial, the right to a fair trial cannot be assured (for instance: Findley v United Kingdom (1997); see also right to a fair trial in administrative law cases; right to a fair trial in civil law cases; right to a fair trial in criminal law cases). Impartiality, according to the ECtHR, means lack of prejudice and bias.

10.  The ECtHR distinguishes objective and subjective criteria of judicial impartiality (De Cubber v Belgium (1984)). Its objective criterion relates to the assessment as to whether a court/tribunal offers ‘guarantees to exclude any legitimate doubt in this respect’ (Pullar v United Kingdom (1996); Fey v Austria (1993)). In the light of the jurisprudence of the ECtHR, the objective criterion requires that there would be no ascertainable facts which may raise doubts as to the impartiality of judges, since the courts have stressed that ‘even appearances may be of certain importance’ and ‘what is at stake is the confidence which the courts in a democratic society must inspire in the public[,] and above all in the parties to the proceedings’ (Hauschildt v Denmark (1989) 48; see also Human Rights in the Administration of Justice 137). Thus, the objective criterion relates to the assessment as to whether there are any hierarchical or other connections between judges and parties of a proceeding, or if their character and degree may lead to the lack of impartiality of a court, for instance an affinity between a judge and a parties’ proxy (Nowicki, comment concerning Art. 6). The ECtHR expressed a conviction that, in an objective sense, judicial independence and impartiality requires judges to be free from improper influences, not only from the outside of the judiciary but also from its interior (see for instance Agrokompleks v Ukraine (2011)). In addition to this perspective, the so-called subjective criterion also occurs; it is connected with a situation when a personal conviction and a personal interest of a particular judge are taken into account in a concrete case, ie whether he or she tends to exhibit prejudice or bias.

11.  The term ‘impartiality’ in relation to courts and judges is included in many contemporary constitutional texts; however, impartiality can also be derived from wider principles referring to the status of the judicial organs and judges. The use of the term ‘impartiality’, as at the international level, is frequently connected with the establishment of the right to justice. This attitude is visible inter alia in the following provisions: Art. 30(2) of the Constitution of the Republic of Cyprus: 16 August 1960 (as Amended to 21 November 1996) (Cyprus); Art. 36(1) of the Constitution of the Czech Republic: 16 December 1992 (as Amended to 2013) (Czech); Art. 31 of the Constitution of the Republic of Lithuania: 25 October 1992 (as Amended to 26 May 2006) (Lith); Art. 39(1) of the Constitution of Malta: 21 September 1964 (as Amended to 17 April 2014) (Malta); Art. 45(1) of the Constitution of the Republic of Poland: 12 April 1997 (as Amended to 7 May 2009) (Pol); Art. 46(1) of the Constitution of the Slovak Republic: 1 September 1992 (as Amended to 21 October 2014) (Slovk); Art. XXIV(1) and Art. XXVIII of the Constitution of the Republic of Hungary: 18 April 2011 (as Amended to 26 September 2013) (Hung); Art. 17 of the Political Constitution of the United Mexican States: 5 February 1917 (as Amended to 24 February 2017) (Mex); and Art. 34 of the Constitution of the Republic of South Africa: 18 December 1996 (as amended to 1 February 2013) (S Afr).

12.  The term ‘impartiality’ is also sometimes entrenched (entrenched clauses) as one of the basic principles referring to the functioning of the judicial powers or judges (see, inter alia, Art. 19(3) of the Constitution of Cyprus; Art. 82 of the Constitution of the Czech Republic; Art. 100 of the Constitution of Mexico; Chapter 1, s9 of the Instrument of Government (SFS nr 1974:152) 1974 (as Amended to 7 December 2010) (Swed); and Art. 165(2) of the Constitution of the Republic of South Africa).

13.  In the US, constitutional impartiality is primarily connected with the right to trial by jury, which is safeguarded in the Sixth Amendment, as well as by the due process and equal protection clauses of the Fourteenth Amendment and the due process clause of the Fifth Amendment. In turn, the Constitutional Council of France (Conseil Constitutionnel) derives the right to justice from Article 16 the French Declaration of the Rights of Man and of the Citizen (1789) (Decision No. 96–373 DC (1996) (Fra)). The Indian constitution may serve as an example of a constitutional text in which a notion of impartiality does not occur; however, its importance may be inferred from other provisions referring to the judiciary, such as separation from the executive appointment, security of tenure, and remuneration of judges (see Art. 50, Art. 124 para. 2, and Art. 125 of the Constitution of India: 26 November 1949 (as Amended to 28 May 2015) (India)). In turn, a safeguard against the bias of a judge may be derived from Art. 92 of the Basic Law of the Federal Republic of Germany: 23 May 1949 (as Amended to 11 July 2012) (Ger), stating that ‘judicial power shall be vested in the judges’; Art. 101 para. 2, which stipulates that ‘no one may be deprived of his access to a statutory judge’; and Art. 103 para. 1, according to which ‘everyone has a claim to a legal hearing before a court’ (Youngs 393).

14.  Occasionally, certain safeguards related to impartiality may result from unwritten law, especially in common law countries. For instance, the Supreme Court of Canada (Cour suprême du Canada) is of the opinion that independence, which—as it was mentioned above—should also be perceived as a prerequisite for impartiality, is not only expressed in provisions of the Constitution Act of 1867 and in the Charter of 1982, but is also an unwritten norm, recognized and affirmed by the preamble to the Constitution Act 1867 (Chief Justice Lamer, The Provincial Judges Reference (1997) (Can)) (Constitution of Canada: the Constitution Acts 1867 to 1982 (Unofficial consolidation current as of September 2008) 1867 c.3 (30 & 31 Victoria). In the UK, impartiality of judges is perceived to be included in the common law. The doctrine of actual and apparent bias constitutes a counterpart of the above-mentioned division between the subjective and objective impartiality used by the ECtHR (Goudkamp 32). An actual bias means that it is evident that a judge acts in favour of or against a party. An apparent bias, in turn, is when the conduct or behaviour of the judge suggests that he or she is not impartial from the perspective of a hypothetical fair minded and informed observer. English law also recognizes a third type of bias, ie presumed bias, if a judge has an interest—not necessary pecuniary—in the outcome of the proceedings (Goudkamp 32).

C.  Legal Guarantees of Impartiality

15.  Legal guarantees of judicial impartiality are included mainly in statutes. Some of them overlap with the safeguards of judicial independence, especially if an objective aspect of impartiality is under consideration. Among these are, inter alia, the following: appointing judges, usually for an indefinite period, in a transparent procedure (security of tenure selection of judges; terms of office of judges); immovability of members of the judiciary; exclusion or limitation of the possibility of conducting political activity by judicial post holders; a certain form of judicial immunity and a personal inviolability protecting judicial post holders from criminal responsibility without the consent of a competent organ (such as a court or a judicial council); prescribed disciplinary proceedings for misconduct; and impairment of the authority of the office (judicial accountability). Likewise, as it seems, too great an impact of the executive power (usually through a minister of justice) on judicial promotions may endanger impartiality by encouraging judges to adjudicate according to expectations expressed directly or indirectly by politicians. Thus, normative measures safeguarding organizational separation of judicial powers are vital.

16.  Apart from the above mentioned, formal and systemic guarantees may also be distinguished; they are frequently perceived as rules or principles of natural justice—sometimes called ‘constitutional justice’. They are expressed by Latin legal maxims such as audi alteram partem—ie, in a dispute between litigants, the court should hear both sides—and nemo iudex in causa sua, which means that an adjudicator between litigants should be disinterested, impartial, and unbiased (Barden and Murphy 146). These and similar rules are predominantly included in norms regarding judicial proceedings (see for instance s 42 of the German Code of Civil Procedure (Ger); s 24 of the German Code of Criminal Procedure (Ger); Arts 341–355 of the French Code of Civil Procedure (Fr); Arts 668 and 669 of the French Code of Criminal Procedure (Fr); and the US Code: Title 28 – Judiciary and Judicial Procedure, s 455 (a), (b), and (d) (US)). These instruments require that a judge, another judicial post holder, or a member of a jury be excluded from deciding a case in enumerated situations—for example, when the case concerns them directly, if he/she is a party or remains in such legal relationship with one of the parties that the outcome of the case affects their rights and obligations (ie, in cases involving the judge’s spouse, lineal relatives, and relatives by affinity, in cases where the judge was or still is a court agent or legal advisor to one of the parties, or when the judge co-issued the ruling that is subject to appeal in the court of lower instance). A judge is obliged to reveal any matters known to him or her that may be expected to form the bias; that is why legal provisions often state that the court should exclude a judge—at the judge’s own request or at the request of another party—if there are circumstances that could lead to reasonable doubts as to the judge’s impartiality (see for example Magill v Porter and Weeks (2001) (UK)). Disqualification, as rightly emphasized by Soeharno, is aimed at not only mitigating the effects of faults in the professional character of a judge, but also at safeguarding public trust in relation to the institutional value of impartiality (Soeharno 134). Deciding a case by a judge who should have been recused is usually treated as a formal defect in the process, and cause for which a ruling can be quashed during proceedings (see for instance German Code of Criminal Procedure, para. 337; and German Code of Civil Procedure, para. 545 (Ger)).

17.  Jackson draws attention to one of the most comprehensible convictions concerning safeguarding impartiality, that is, the lack of financial ties between a judge and a party. Thus, according to federal law, federal judges in the US are disqualified in cases involving a business in which they own stock (See US Code: Title 28, para. 455 (b)(4) and (5) (US)). In English law, a pecuniary interest in the case means automatic disqualification, with a duty of recusal resting on the judge (Turenne 168); also, engagement in ideological or political movement on the part of a judge may lead to automatic disqualification (In Re Pinochet (1999) (UK)).

18.  Extra-judicial activities of judicial officers may also cast doubt on impartiality; however, this issue is regulated by local legal tradition. Especially in the UK and the US, judges are frequently appointed to special panels which are aimed at conducting public inquiry concerning a particular matter. In addition, some doubts may be evoked in cases of constitutional judges who are supposed to assess the constitutionality of a statutory regulation in situations when they gave their opinion about the issue before taking a judicial post—for example, in their research work. In some countries, for example in the US, it also happens that, in an appointment procedure, candidates for apex or constitutional court justices are questioned on controversial issues which may in future be the subject of their adjudication. However, despite the above-mentioned situations, this is rarely deemed as undermining judicial impartiality. The Supreme Court of the United States allows judicial candidates to speak freely about their personal positions on controversial social issues (Republican Party of Minnesota v White (2002) (US)).

19.  It is generally established that, apart from regulation concerning recusal, judges are not free to exclude themselves from cases that are not to their liking: this is called ‘duty to sit’ (Olowofoyeku 390). Decisions on disqualification should not be made lightly, as this ‘would lead to [situations] where litigants may exploit this avenue in order to choose their own judges’ (Lee 538). Since questioning judicial impartiality may undermine the picture of the whole system of administration of justice, the objective state of mind or attitude that an adjudicator has towards a particular matter should be taken into account in this context (Siyo and Mubangizi 819). That is why a presumption of judicial impartiality constitutes a general rule here, which results also from the ECtHR’s case law. Judicial officers should apply for recusal if circumstances prescribed in the law are applied. When impartiality is questioned by a party, the onus of establishing bias should rest upon the applicant. The assessment that, in a particular matter, a judge will not be impartial usually resorts to ‘a fair-minded and informed observer’ (Magill v Porter and Weeks (2001) (UK), ‘an objective observer’ (Liteky v United States (1994) (US)), or ‘an objective and well informed person’ (President of the Republic of South Africa and Others v South African Rugby Football Union and Others (1999) (S Afr)). However, sometimes the perspective of a reviewed court also may play an important role, when the problem of impartiality is supposed to be assessed in the process of appeal of judicial review (R v Gough (1993) (UK); Olowofoyeku, passim).

D.  Conclusions

20.  Impartiality is a particularly important feature of the judiciary in the democratic state ruled by law. It must also be perceived as a component of the subjective right to justice included in many international human rights agreements and national constitutions. Impartiality is not only an attribute of a judge, but is also a dispute settlement principle (due process of law) connected with decision-making in this process or with substantive provisions upon which basis decisions are issued (Łazarska, Chapter 4).

21.  The constitutional and legal safeguards mentioned above are significant mainly for assuring public perception of an independent and trustworthy judicial power. However, constitutional practice often has little to do with the formal picture resulting from the law. This is the case in countries, especially developing ones, where transparency of public life is very often blurred and problems with corruption exist (corruption and bribery). This notion encompasses not only the simple taking of bribes by judges, but also ‘all forms of inappropriate influence that may damage the impartiality of justice, and may involve any actor within the justice system, including lawyers and administrative support staff’ (Gloppen 69). It must thus be noted that impartiality is, to a great extent, connected with the internal attitude of a person who is entitled to decide a particular case. Thus, a strong personal character and fortitude is what is desired the most; this includes inter alia such values as a highly ethical level of behaviour, both within the scope of a judge’s duty and when they are off duty, moral courage in exercising judicial independence, intelligence, wisdom, circumspection in language, ability to reflect broadly, decision-making without sway, a sense of justice, and a sensitive conscience (Gonera 389). In this sense, impartiality cannot be efficiently and fully entrenched in normative acts, because it also remains a question of human morality.

22.  [Acknowledgment: This entry builds upon a research project financed by the National Science Centre, Poland, according to decision DEC-2016/21/B/HS5/00445].

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