The judge in an unstable world
Judges • Thursday, August 25, 2022 Max Shanahan interviews José Matos, President of the International Association of Judges ... Judges hanging on under autocratic regimes ... Role of the IAJ ... Defence of the judiciary ... Fleeing the Taliban
Matos at the March of the 1000 Robes in Poland
While he was visiting Australia, Justinian caught up with with José Igreja Matos, President of the International Association of Judges and a judge of appeal in Portugal.
He discussed the work of the IAJ, global threats to judicial independence, and the importance of engaging with international judicial solidarity.
What is role of the IAJ, and what does your position as President entail?
The IAJ is a representative association of judges - we are a little bit like the United Nations for judges because we represent 94 countries. National associations of judges comprise the membership of the IAJ. In each country, the most representative association of judges can apply to be a member of the IAJ. If they fulfil the prerequisites - namely respect for independence and the rule of law - they are voted on and admitted after a study visit by experts to assess the suitability of the candidacy.
We are divided into four continental/regional groups. We have four study commissions that gather each year for discussion and approval of reports on different topics within the judiciary. Our main mission is promoting an independent judiciary worldwide - judicial independence, the rule of law and human rights are our main targets.
The Special Rapporteur on the Independence of Judges and Lawyers has noted a "global increase in practices that undermine, limit, restrict and hinder the practice of law" – what factors are driving increases in attacks on the profession and the judiciary?
We agree with Diego Garcia-Sayan (the Special Rapporteur). We are in constant contact with the Rapporteur and we have the same perception of things that are happening in the world.
I think the main factor for this problem is the crisis of democracy. A Freedom House report showed 80 countries have a worsening quality of democracy after the pandemic. Likewise, the very worrisome rise of autocratic policies and politicians is a widespread phenomenon and brings heavy costs to judicial independence. That is why I think Diego is underlining this new trend. It is something that we are very preoccupied with.
In the IAJ we are now dealing with very difficult situations in many countries. We are trying to do our best to help the colleagues that are being harassed and arrested because of their independence.
Often attacks on the judiciary are the first portent of more authoritarian politics - how can the judiciary protect itself from such attacks? And what role does the public have to play in protecting the judiciary?
It was mentioned by Hamilton in the Federalist Papers that the judicial power is the weakest of the powers. So for us it's not easy to try to maintain our independence, fight for the separation of powers, and try to avoid control by political and executive power.
Having said that, I think the most important thing is the way that citizens perceive the importance of the rule of law and judicial independence. We have worked extensively with institutions - we have the official status of observer in the United Nations, and we work with the Council of Europe on issues related to ... to assist in education schemes and the promotion of judicial independence within civil society.
Increasingly, a form of legalism is being used to legitimise authoritarian politics. Do judges have an obligation to push back against oppressive laws, and avoid becoming complicit in democratic backsliding?
I agree that judges should not be silent and should not abide by autocratic policies. Although it must be said that in many cases it is not easy to do so. Especially when, in civil law countries, being a judge is a career in itself and does not require a long career as a lawyer beforehand.
For example, many of the judges in Australia are already people with strong personal independence and know exactly what they want. But in other countries, judges are recruited after university. They depend on the salary to pay their mortgage, support their children and so forth. It's not like a political career where you are elected only for a few years.
We are struggling in these circumstances because it's not easy for my colleagues in different countries to continue to be independent with all the political pressure because, at the end of the day, they depend on the salary to survive.
But independent of situations like these, I can mention many, many cases of independent judges that are struggling - some of them are in prison, some have had their salaries cut, and many others face disciplinary and criminal proceedings - because they are doing their best to defend judicial independence.
At our next General Assembly in Tel Aviv in September, we will pay tribute to three of them. One is the President of the [national association of Polish judges], representing Polish judges that are fighting for independence in very difficult circumstances.
The other is Erika Aifan - a judge from Guatemala that was forced to flee her country because of her courage in prosecuting powerful people and politicians.
And finally, Murat Arslan, president of the now-dissolved Turkish association of judges, who has recently been condemned to 10 years imprisonment, after having been detained since 2016.
These are only three examples, but I could raise many more – as I have said, the situation has worsened considerably in recent years.
In your work, have you noticed any general pattern by which judges come under attack and have their independence eroded?
Yes. Each time an autocratic politician or movement comes to power - even through elections as in Hungary and Poland - the first thing they try to do is to control the media and the courts. Those are the first main targets in their desire to have absolute control over the different powers in society.
Viktor Orbán has called it illiberal democracy - there is legitimacy because of the elections, which allows them to take control of other powers. The media and journalists are targeted to control what is published, what appears on the news, to try to control public opinion and create a favourable narrative.
And then, of course, they try to control the courts. This is a situation that I have detected again and again in very different regions, contexts and cultural backgrounds. But every time there is the same attitude and the same method of trying to take control of everything.
In Tunisia, attempts at efforts to undermine the independence of the judiciary saw 57 judges removed. Many of those judges have since been on hunger strike for months. The government has indicated it will not comply with a court order to reinstate those judges. What role has the IAJ and regional associations played in supporting and advocating for judges under attack?
I am in constant contact with the judges of Tunisia. I have appointed a special representative to undertake a special mission to Tunisia. He spent several days in the country, speaking with affected people and conducting interviews. The final report is very worrisome - the situation is really, really terrible for the judges.
The President has taken several decisions that are completely against the basic principles of democracy and the rule of law. He appointed a new Judicial Council with members that he appointed himself. He expelled 57 judges without any disciplinary process or right to appeal. Recently, a court found the expulsion was not legal, which seems obvious.
However, the government has not respected the decision of the court and has started criminal procedures against the President of the Association of Judges of Tunisia. They also replaced the locks in the judge's offices, barring them from entering. This is the situation that we are facing. We receive many appeals from our Tunisian colleagues who are getting more desperate every day, fearful of what may happen in their personal and professional lives.
The IAJ played a role in efforts to help female judges leave Afghanistan after the Taliban took power. How did that play out?
Once foreign forces left Afghanistan, women judges were persecuted by the Taliban in a way that was really ferocious. There was real danger to their lives and personal security. They could be raped, tortured or killed because the Taliban were very clear in saying that women judges would be one of their primary targets.
As a result, there was a big international movement that started immediately after the Taliban took the country. We tried to organise many missions there - it was a very, very expensive operation. To hire planes and organise flights to get these women out of the country is a terrible logistical effort.
We had the good fortune to have many people sponsoring our efforts such as international organisations and foundations in different parts of the world. Ultimately, we were able to bring more than 250 women judges out of Afghanistan and organise visas for them. The main point is that they are alive, but the problems persist – it is very difficult to get visas, and often countries are not eager to receive them.
But with the assistance of, for instance, the International Association of Women Judges, we were able to achieve a positive outcome through working behind the scenes in many cases. Even if it was only one single woman we were able to help, our efforts would still be worthwhile.
Because of its geographic isolation, Australia often sees itself as insulated or protected from global issues. Why is it important for the Australian legal profession to participate in and engage with international organisations like the IAJ?
It's not for me to speak for my Australian colleagues, but what I can say is that when I am doing this job, sometimes I have to fly to distant countries with different languages, cultures and so forth.
But the questions that are posed to me and the concerns of judges are very similar everywhere. And that is something that globalisation has reinforced. The requirement for independent and impartial judges is something that has become global.
The pandemic, and the dystopian temptations of some politicians in different parts of the world, reinforce this idea that any country can be affected.
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