ILOAT Reform
Opinion prepared by Dr. Ian Seiderman
Does the
ILO Administrative Tribunal meet the standards of an
independent and impartial judiciary?
The ILO Administrative
Tribunal appears to lack certain core attributes of
independence. The manner in which judges are selected,
the conditions of their tenure, the apparent lack of
procedures for their discipline or removal and the lack
of right of appeal are among the problematic features.
The basic text setting
out the minimal standards of judicial independence is
the United Nations Principles on the Independence of
the Judiciary. These principles cover a number of areas,
including political interference, freedom of association
of judges, qualification, selection and training and
discipline and removal of judges. Of course, these principles
were adopted primarily with judicial, not administrative
bodies, in mind. However, the principle that a tribunal
must be independent is equally applicable in the administrative
context, especially when the rights of employees are
at stake.
Principle 10 requires that
"persons selected for judicial office shall be individuals
of integrity and ability with appropriate training or
qualifications in law." It is unclear as to whether
any standards governing judicial qualification have
been promulgated or used in the appointment of ILOAT
judges. Apparently, the selection process has lacked
the transparency necessary to ensure adequate judicial
accountability.
Yet more critical are the
elements of principle 2, which provides that "the judiciary
shall decide matters before it impartially, on the basis
of facts and in accordance with that law, without...improper
influences, inducements, pressures, threats or interferences,
direct or indirect, from any quarter or for any reason."
A serious deficiency is manifest in the ILOAT when this
principle is considered in conjunction with principle
12 regarding terms of tenure of judges. Principle 12
requires that "judges... shall have guaranteed tenure
until a mandatory retirement age or the expiry of their
term of office." The ILOAT judges are appointed for
three year periods, and typically reappointed. The inclination
of certain judges may be to do nothing that might inhibit
their chances of reappointment and thereby steer clear
of issuing too many rulings that could upset those charged
with the renewal of their terms.
The procedures for discipline,
suspension and removal of judges remain murky. Principle
18 requires that "judges shall be subjected to suspension
or removal only for reasons or incapacity or behaviour
that renders them unfit to discharge their duties."
Provisions 1, 19 and 20 are principles governing the
due process to be applied for such suspension, discipline
or removal. These safeguards must be present to ensure
that judges do not suffer reprisal for rendering unpopular
decisions.
The European Court of Human
Rights, in the case of Findlay v. United Kingdom,
pronounced that for a tribunal to be independent "regard
must be had to the manner of appointment of its members
and their term of office, the existence of guarantees
against outside pressures and the question of whether
the body presents an appearance of independence." The
court suggested that not only must tribunals be subjectively
free of partiality or bias, but they must be objectively
impartial and be seen to be impartial. This latter element
goes to the institutional independence of judges. The
manner of appointment, terms of tenure and lack of procedures
for discipline or removal certainly do not inspire confidence
that these conditions have been met.
One further issue which
deserves mention is the appellate procedure. The fact
that a complainant does not have a right to appeal not
only impairs his or her direct interests, but also may
have adverse implications for the independence of the
judiciary. An appellate body serves the function of
providing a check on the lower tribunal to make sure
it correctly administers the substantive law and adheres
to proper procedures. With the knowledge that their
decisions are not subject to review, judges may be more
prone to abuse their discretion, or at least give the
appearance of acting in such a manner.
Dr. Ian Seiderman
International
Council of Jurists, Geneva
12 November
2002
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