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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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Updated by FQ. Approved by MS. Last update: 22 November 2002.