Newsletter 22/2012 - Guest Commentator

Bernard McCloskey
Judge at Court of Judicature and Chairman of Law Commission, Northern Ireland, United Kingdom

Truly independent judiciary is not less than fundamental necessity for RCC members

Until recently, I was a mere distant, though interested, spectator of the activities of the South East European Regional Cooperation Council (RCC).  This changed on 29-30 May 2012, when I was an honoured guest and visitor at an RCC conference in Bucharest.  As one of the invited experts, it was my great pleasure to present a paper on the European Arrest Warrant (EAW). I am now flattered by a further invitation, namely to make this modest contribution to this excellent publication.

The challenges confronting the member states of the RCC, particularly in the midst of a global recession, must not be underestimated. On the other hand, the overarching objectives of the RCC states – higher but more sustainable growth, the alleviation of poverty and greater integration – cannot be overstated.  The need for increasingly strong and productive joint strategies and common actions is greater than ever. Initiatives such as the South East Europe 2020 Vision must be viewed by all concerned as achievable and must become a reality if at all possible. This kind of initiative is one of the mechanisms for promoting regional recovery and development. 

As a judge of a country belonging to the common law tradition which has had, and continues to have, such influence in the creation and enhancement of legal systems throughout the developed world, I would place great emphasis on the vital importance of the rule of law in the RCC context. Arguably, one of the greatest threats to the rule of law is that it is taken for granted in so many countries. Complacency is one of its greatest enemies. It is worth reflecting on the basic tenets of the rule of law. Fundamentally, it requires that everything must be done according to law. Thus every Government Minister who, or Government agency which, purports to act in any given field must justify the action in question as authorised by law – which will normally (though not invariably) mean authorised by parliamentary legislation. Acts of governmental power routinely affect the legal rights, duties and liberties of the individual. All such acts must be shown to have a strict legal pedigree. The courts are the arbiters of whether the necessary legal pedigree exists. Thus, the rule of law is founded on the principle of legality.

The rule of law has an important secondary meaning in all well-developed systems of administrative law: it is that government should be conducted within a framework of recognised rules and principles which restrict the exercise of discretionary power and are designed to prevent its abuse. Once again, it is the courts which are the arbiters of the legitimate use – and misuse– of governmental power.

As this brief analysis demonstrates, it is impossible to reflect on the government and administration of modern societies without mentioning the courts and judges. This leads quickly to the truism that the independence of the judiciary is a cornerstone of the rule of law and, hence, any modern democratic state. Plainly, the rule of law cannot function properly and effectively unless adjudication upon the legality of governmental acts is carried out by judges who are independent of the executive. Judicial independence is, therefore, a central pillar of the rule of law. Properly appreciated, it explains and illuminates the doctrine of the separation of powers.  The rule of law requires full respect for and enforcement of the right of every citizen to bring a dispute with any governmental agency or public authority before courts manned by impartial judges of the highest independence. In adjudicating upon such disputes, the court has the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power.

Those states of South East Europe who are members of the RCC are a fascinating mixture of European Union (EU) Member States, pre-accession states and others. This prompts immediate reflection on Article 6(1) of the EU Treaty, which provides:

 “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental       freedoms and the rule of law, principles which are common to the Member States”.

The emphasis is mine. In short, all RCC member states are challenged to recognise the rule of law as a value of supreme importance which has the potential to be a unifying force and a vehicle for promoting RCC’s objectives.

It is appropriate to reflect that all RCC member states have submitted to the rule of law. Continuing surrender to the rule of law will provide a beacon for all. Of course, mere lip service to the rule of law will not suffice. The rule of law is weakened, and threatened, in the modern world in the absence of necessary, efficacious multi-national agreements in the area of criminal law. Such agreements are required to facilitate the investigation, detection, prosecution and conviction of offenders. The benefits arising from such agreements are shared by all. 

Agreements of this kind will be enhanced by the creation of models and processes that are clear, accessible, practical, efficacious and expeditious. A regional arrest warrant regime is, in my view, indispensable.

Hopefully I will have the opportunity to make a future contribution to this publication devoted specifically to the subject of a regional arrest warrant. At this juncture, I would strongly encourage any measures which maintain, promote and fortify the rule of law in any respect. The regional arrest warrant is, of course, a measure of this kind. However, at a somewhat more prosaic level, a truly independent judiciary – fully supported by appropriate training, information gathering systems, fair remuneration and, where necessary, protection from threat of any kind – is a necessity which is not less than fundamental. This is a continuing challenge to all RCC states which every government must recognise as a priority. In an ever evolving process, the provision of adequate education and information to populations will enlighten citizens on the inextricable link between an independent judiciary and the RCC objectives. An independent judiciary is a vital tool in this process. Allied with continuing vision, courage and self sacrifice, it will make a crucial contribution to achievement of the RCC objectives.

Bernard McCloskey is High Court Judge in Northern Ireland, Chairman of The Northern Ireland Law Commission, Northern Ireland Judge of The United Kingdom Upper Tier Tribunal and  Judge In Residence at Queen’s University, Belfast. He is a member of the Association of European Administrative Judges, a member of The Commonwealth Magistrates’ and Judges’ Association and a Member of the Franco-British Lawyers’ Society. McCloskey delivered over 200 judgments in the High Court, Court of Appeal and UK Upper Tier Tribunal spanning a broad range of fields. He is also occasional Judicial Studies Board, Continuing Professional Development lecturer and occasional visiting university lecturer.


Bernard McCloskey, Judge at the Court of Judicature, the Chairman of Law Commission, Northern Ireland, United Kingdom. (Photo: courtesy of Mr. McCloskey)

Bernard McCloskey, Judge at the Court of Judicature, the Chairman of Law Commission, Northern Ireland, United Kingdom. (Photo: courtesy of Mr. McCloskey)