Symposium: The Demands of Unwritten Constitutionalism on Institutional Design

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Kate Glover Berger

Western University, Ontario

For scholars of public law, an important open question lies at the intersection of constitutional and administrative law. The question asks about the relationship between unwritten constitutionalism and constitutional structure. Or more specifically, in what ways does the unwritten constitution make demands on institutional design within the public order?

This is precisely the issue raised in litigation currently making its way through Canada’s federal courts. The litigation arises from a report of the Canadian Judicial Council (“Council”) recommending the removal of a federally-appointed judge from the bench. The recommendation is within the Council’s jurisdiction. The Council, made up of senior judges from across the country, was established under the Canadian Judges Act to inquire into allegations of misconduct by federally-appointed judges and, when warranted, recommend removal to the Minister of Justice. But in this current case, the Council has argued that because of the constitutional character of its membership and role, its recommendations must be immune from judicial review.

The litigation exposes uncertainties about the constitutional requirements for removing judges. Pursuant to section 99(1) of Canada’s Constitution Act, 1867, a federally-appointed judge is removable by the Governor General upon address of the Senate and House of Commons. On the face of the constitution, no additional steps are required. The remaining question is whether the unwritten constitution demands more.

The short answer to this query is yes, but with implications that run counter to the Council’s claim.

The Constitution & Institutional Design

The Canadian Constitution addresses matters of institutional design. The constitutional text provides for the country’s major institutions of government - the legislature, the executive, the judiciary – and their core features. But focusing on these grand structures gives rise to a sorely thin account of Canada’s constitutional order. It ignores both the more quotidian offices and the thriving unwritten traditions that are critical to public life. The true constitutional character of a public order can never be fully appreciated without accounting for its lived realities and unwritten dimensions.

Much can be said about these unwritten constitutional dimensions and institutional design, but here, two points regarding unwritten principles matter most. First, unwritten principles are the foundation and scaffolding of constitutional architecture. According to the Supreme Court of Canada, unwritten principles “dictate major elements” of the structure of the constitution; they are the lifeblood of public institutions. Second, unwritten principles can make demands on an institutional order in ways that cannot be characterized as mere interpretation of text. Some of these demands are operational, setting limits on the exercise of public power. Other demands implicate institutional design. One source of such demands is the principle of judicial independence.

The Demands of Judicial Independence

(a)    An Inquiry Process

The unwritten principle of judicial independence is concerned with the judiciary’s relationships with legislative and executive actors, and more precisely, with the effects of these relationships on the judicial mind. An independent judiciary is one that a reasonable and informed person would believe enjoys “the essential conditions of independence”, including security of tenure and financial security, all in service of shielding the judiciary from political interference. Judicial independence ultimately strives for the depoliticization of judicial relationships, an aim that often entails deepening the separation of powers and creating formal structural distance between the judiciary and the political branches of government. In Canada, for example, judicial independence has been held to require the creation of independent commissions to make recommendations on judicial salaries. These commissions separate the judiciary from the legislature and executive in the messy process of salary negotiations. They prevent the complexities of the political from colouring the complexities of judicial remuneration.

This same logic applies in the context of removing judges. The executive and legislature have the final say on removal.  While the removal power can be exercised only when a judge contravenes standards of good behaviour, neither the political executive nor the legislature can inquire into judicial behaviour in a depoliticized way. Judicial conduct is already fraught by public expectations, contested moralities, and the exigencies of litigation. These complexities must not be further formatted by the complexities of the political process. In other words, when it comes to judicial tenure, separation is required. In this context, the demand is not for an alternative negotiation framework, but rather for an inquiry process to review and assess judicial conduct outside the partisan realm.  

(b)    Essential Features of an Inquiry Process

If judicial independence demands the existence of an inquiry process, what might it say about how the process unfolds? While not exhaustive, three features are essential.

First, depoliticization demands that any inquiry be independent of the partisan branches of government. As the legislature and executive already have the final word on removal, the public’s confidence in judicial independence would be reasonably undermined if legislative or executive actors were also involved in the initial stages of investigating or assessing judicial conduct.

Second, the actor conducting the inquiry must act according to “internal laws” animated by judicial independence. A removal process is necessary for judicial independence because the rule of law is threatened when judges who no longer hold the public’s confidence remain in office. But a removal process can jeopardize judicial independence if it is invoked arbitrarily or readily. A liberal approach to removal undermines the conditions necessary for an unencumbered judicial mind. Thus, the actor carrying out an inquiry into judicial conduct must be animated in all ways – from the procedures it adopts to any litigation strategies it might pursue – by a commitment to preserving the independence of the judges who are at risk of removal.

Third, the inquiry process and its substantive outcomes must be subject to judicial review. Accountability is a core tenet of the rule of law. All exercises of public power are bound by legal limits; judicial review aims to preserve those limits. Further, judicial review is a forum that could expose political interference in the inquiry process and ensure that any inquiry was conducted in accordance with natural justice and the demands of legality. Neither an executive nor a legislative process could fully replicate the formal protections of judicial review.

Unwritten Constitutionalism & Institutional Design

Reflecting on the proper process for removing judges offers insight into the ways that unwritten constitutionalism can make concrete demands on the design of individual institutions and the public order as a whole. In Canada, it also offers insight relevant to ongoing reflection about the Canadian Judicial Council. We learn that the Council currently performs a constitutionally necessary role, that of inquiring into complaints of judicial misconduct. But fulfilling this role neither guarantees the Council’s existence nor shields its decisions from judicial review. Rather, the principle of judicial independence requires an inquiry process but does not specify which actor or actors must carry it out. That choice remains a matter of executive policy and legislative delegation. But the choice is not without constraints. The essential institutional features flowing from judicial independence set limits on the design (and reform) of the inquiry process and on the body carrying it out. It is by virtue of these limits that both a process immune from review, as well as the pursuit of such immunity, run afoul of what judicial independence demands.

Kate Glover Berger is an Assistant Professor in the Faculty of Law at Western University in Ontario, Canada.

Suggested Citation: Kate Glover Berger, ‘The Demands of Unwritten Constitutionalism on Institutional Design’ IACL-AIDC Blog (29 May 2019)