Judging the judge

After WW2 the allied occupying powers presented a number of reform demands on Germany, including the removal of all public officals with connections to the National Socialists. With few exceptions this was implemented. One group exemption, requested by the German transition regime, was the judiciary.

As Konrad Adenauer explained to Dwight Eisenhower, Germany without the rule of law is unthinkable, and it takes 20 years to generate a judge. In other words, for the denazification of Germany, a functioning judiciary was a necessity. The request was granted, and only judges who had sat at the notorious People's Tribunals, where severe summary sentences were metted out to enemies of the Nazi party, were purged.

The predicament of repairing the ship of state at sea is well-known in transition states, including Latvia. The basic institutions have to go on performing while being reformed, modernized and overhauled - often under the intense scrutiny of foreign observers who present their models without an obligation to implement or assuming any political responsibility.

The Latvian court system is one such area. For a long time foreign investors, organizations and governments have listed politically anchored judicial reform as a high priority. Given the election platform of the New Era party and its prime minister, the time for court reform clearly has come.

Fortunately, the outgoing governement left a legacy in the form of extensive preparaton and a draft law on court reform, sponsored by international experts, the Council of Europe, a think tank for rule-of-law issues, the U.N. Development Program in Latvia, and the George Soros Open Society Institute. With such fairies hovering around the cradle, the newborn proposal can hope for a positive welcome in the world where it is destined to function.

Minister of Justice Aivars Aksenoks gave the draft a good word while introducing it to a professional audience at a conference on judicial reform this month, and said that, in order to foster broad support for the draft law, the government had decided to open it up for debate well ahead of its final submission to Parliament. Aksenoks hopes the this will contribute to a quality outcome.

Until now constitutional and legislative guarantees of an independent judiciary in Latvia have been weak, and the separation of powers have not been fully developed. The draft law aims to consolidate the judiciary as the third pillar of power. It organizes the court system and its functions; the recruitment, training and promotion of judges; judges' duties, remuneration and the control of their work.

An important novelty in the proposal is to let an independant council take on the responsibility of organizing and administrating the court system - now controlled by the Ministry of Justice. One basic function, however, that will stay with the Justice Ministry is budgetary matters. And since judicial reform will have a price tag, this is a problem.

Another equally touchy problem is that of setting the framework for disciplinary action against judges who do not meet the ethical requirements of the bench. In the words of one writer of Latvia's constitution, this is too important a matter to leave to the collegeal jurisdiction of judges themselves. Disciplinary sanctions are simple to define, but the problem has been lack of application.

So who should carry out ethical oversight? Not the government, not laymen, rather, a group composed of persons of integrity and recognized as such. The answer in the draft is to involve the new council of justice.

In recent European experience there are three traditions for the judge: the hander-down of decisions foreseen (it is maintained) by the Napoleonic code; the robbed and wigged arbiter upholding the king's peace; and the functionary expediting "telephone justice" as it originates in prosecutors' offices. The draft law will bring Latvian judges away from the third version, yet it is unclear toward which of the other two directions.

Thus the main problem in judicial reform is, not surprisingly, the human resource aspect - updating and professionalizing the some 400 judges who sit in Latvia's courts. In many ways, not a task to envy. Judges are underpaid, burdened with heavy caseloads and percieved as being under the influence of the "c-word." At the same time they are expected to quickly absorb new methods and areas of law (which to the older members of the profession must appear exotic).

Given the speed of social processes in Latvia, the need for a more contemporary court structure is evident. What consequences will flow from nascent judicial reforms are difficult to forecast. In the long run, it could be a comfort to those with the task of implementing the new concepts that the administration of justice itself is a continuous debate, even in most Western countries with which Latvia hopes to have closer ties.