Written by:
Sebastiaan Pompe

Presented at Discussion on Judicial Liability  held by Indonesia Judicial Comission-NLRP
Jakarta, 12 May 2010

‡        This article was used as one of materials in a discussion on Judicial Liability held by the Judicial Commission of the Republic of Indonesia supported by The Indonesia-Netherlands National Legal Reform Program (NLRP) in Jakarta, May 12, 2010).

A Summary of A.W. Jongbloed's piece on Judicial Liability (Aansprakelijkheid voor optreden van de rechterlijke macht (Den Haag: Boom Juridische Uitgevers 1999)).

Sebastiaan Pompe (2005)

Can judges be held liable for professional wrongdoing? The traditional view is that judges enjoy professional immunity and cannot be held liable for what they do as judges. As shall become apparent from this review, this traditional view in reality is more nuanced. Legal systems generally are very reticent about allowing judicial liability, but no system grants judges full immunity. Also, there is cautious movement in some systems towards greater liability.
 
Some Core Concepts

It helps to first define a number of core concepts. What does ‘judicial liability’ mean? All systems reviewed hereafter make a distinction between criminal and civil liability. Criminal liability refers to judicial acts involving corruption. They expose judges to personal criminal sanction, with prosecution invariably being in the hands of the state. Civil liability exoses the judge to damages.

Here, aggrieved parties can sue. The focus of this paper is on recourse against judicial improprieties by aggrieved parties, and hence civil liability.

To whom does liability attach? Basically, it can attach either to the judge as an individual, or to the state. There seems to be a difference here between the British/ US system and the German/ Belgian model, discussed hereafter. In the British/US system, tort liability is personal, and the judge himself is liable for damages. In the German/ Belgian model discussed below, the judge is primarily regarded as a state organ, and liability in first instance attaches to the state. Any damages in which an action may result, therefore comes from state treasury. This distinction helps explain, I suspect, why Britain and the US are particularly wary about judicial liability, because of the extent to which it directly affects judges and their independence. In the German/ Belgian case, no obligation for damages attaches to the judge individually. Instead it attaches to the state. Also, since the state is generally prevented by law from claiming such damages to the individual judge, judicial liability is regarded as impacting much less on judicial independence.

To what kind of actions does judicial liability attach? It attaches to what is called ‘judicial acts,’ that is: an act involving the exercise of judicial power. For the purposes of this article, if an act fails to fall under ‘judicial acts’, which means that there is no liability, it will simply be defined as ‘non- judicial acts’.

Comparative Insights

It may be useful from the onset to recognize that none of the major legal systems in the world exclude judicial liability.

Yet the ways by which they come to define this, and the underlying dynamics can be quite different. For the purposes of this essay, it is most useful to distinguish between two models, being the British/ US model and the German/ Belgian (European continental) one.

a. The British/US Model

The British/US model can be briefly summarized as the ‘No-except’ rule, that is: no state liability except in certain clearly defined cases. Historical doctrine is based on state immunity, which means that the state cannot be sued unless it specifically so permits. It was only rather late in the day, and with considerable reservations, that such liability was acknowledged. Also, this acknowledgement was partial and the doctrine of state immunity was not in essence relinquished until the present day.

To the extent that state liability is accepted, such liability is defined in common law terms: the government for all intents and purposes is regarded as identical to ordinary citizens, and subject to the same rights and duties. This has been translated to mean that to the extent that state liability is principally defined as personal liability of state agents, not of the state itself. Action for damages against state officials therefore as a general rule must be filed against the agents, not against the state, and damages presumably must be principally covered by that agent.

One consequence of this approach is that since it impugns upon the claimant to show that the state officials has transgressed his (discretionary) authority under the law, the burden of proof can be considerable. More important perhaps, the exposure of public officers to the possibility of lawsuits, easily affects the way he performs his duties:

Among these implications and the lessons of experience are the possibility that an official may perform his or her duties timidly or haphazardly or not perform them in accordance with his or her most considered judgment but according to expediency; the difficulty, already alluded to, of collecting from an individual government servant; and the question why, in performing a governmental duty, a civil servants should be responsible in the first place. (H.J. Abraham, The Judicial Process, OUP 1998, 7^th Ed., p.290)

This personal liability for official duties has been a critical factor in restricting the liability of judges in the British/US model. For how, the question is, can the independence of judges be adequately safeguarded, if they are exposed to personal liability? Immunity is viewed as a critical element in allowing judges to take controversial decisions without personal fear, including fear of exposure to liability suits. As Lord Denning put it (referring to judges) in the celebrated Sirros v. Moore case (1974) 3 WLR 459 C.A.:

He should not have to turn the pages of his book with trembling fingers, asking himself: ‘If I do this, shall I be liable in damages?

In Britain, the Crown Proceedings Act section 2(5) specifically granted immunity to judges ‘discharging or purporting to discharge any responsibilities of a judicial nature…’. The logic was that since judges could not receive instructions from the Crown, then the Crown in turn could not be held liable for judicial mistakes or wrongdoing.

In Britain as in the US, the condition for this immunity is that judges have acted within the boundaries of their judicial function, and legal developments in this area generally are directed towards defining what that precisely means. In Britain, the basic principle established in the Sirros v. Moore case is as follows. (1) In the case of criminal violation a judge can be criminally sanctioned (‘Of course, if the judge has accepted bribes or been in the least degree corrupt, or perverted the course of justice, he can be punished in the criminal courts’). (2) In the event of civil liability, no such liability shall arise of the judge in good faith believed to be acting within his jurisdiction. Only by proving that he acted outside that function, and could not have reasonably believed otherwise, would he be liable. That liability would be personal, and based on common law rules of tort. This rule was later adopted in the Courts and Legal Services Act 1990 section 108.

Similarly, in the US case law really is directed towards defining ‘judicial acts’, to which originally the US Supreme Court decided that immunity extended (Stump vs. Sparkman 435 US 349 (1978)). Other acts by the judge, such as acts of an administrative nature, were not caught by immunity. The court developed a dual test to define a ‘judicial action’: the first is whether the act is one usually conducted by a judge (which is determined by the nature of the act); the second whether the judge acted within his jurisdiction (which is determined by reasonable expectations of parties).

The test was qualified in Pulliam v. Allen 466 US 522 (1984), in which the Supreme Court held that even though judge Pulliam had acted as a judge within her jurisdiction, injunctive relief could be granted. The court also held the judge liable for legal lawyer fees. Four years after that, the US Supreme Court swept the Stump-test aside in Forrester v. White 484 US 219 (1988). Here, following the Posner dissent in the Stump case, the court agreed that judicial immunity was an exceedingly powerful instrument that should only be invoked in cases in which otherwise a judge would not be able to properly perform his judicial functions. This depended on two things: was there case law in which the act in question had been qualified as a judicial act, and are society interests better served if immunity is granted?

The key question continues to be whether a judicial act had taken place. Some radical cases are easy: cases in which judges threw parties to the ground, beat them or jumped up and down on their stomachs were not qualified as judicial acts (and hence exposed judges to liability), nor was a judicial order to the police to arrest a sidewalk coffee vendor, handcuff him and bring him in on grounds that his coffee was lousy (Zarcone v. Perry 572 F.2d 52 (2d Cir. 1978)). Through this ebb and flood of defining what constitute judicial acts and hence the personal liability of judges, the following three elements can be distilled:

    Only through immunity can judicial independence and hence impartiality be properly secured (the principle of judicial independence);

    Cases must to come to a close, and not be subjected to endless re-litigation (the principle of ‘litis finiri oportet’);

     Adequate remedies will generally be available to litigating parties through requesting disciplinary sanction or through the normal appeal route.

b. The European Continental Model

The Continental model is perhaps best summarized as the ‘Yes-but model’: legal systems as a matter of principle accept state liability for wrongful conducts of its organs, except if such are covered by immunity. The result is that continental legal systems generally have more comprehensive systems governing state liability. A good example is Art. 34 of the German Constitution (which dates back to the mid-18^th Century), which in general terms holds the state accountable and liable for wrongful (official) acts conducted by its agents or organs.

Since much depends on whether the public officer has acted within his official capacity or not, legal developments in continental systems to a considerable extent mirror the debate in the British/ US model. Thus, in German law judges are explicitly excluded from the Constitutional provisions on state liability for its organs (art. 34 Constitution second sentence), but only as regards ‘judicial acts’. Also, two categories of judicial acts are specifically excluded: denials of justice and improper delays do still give rise to liability. Case law has defined this to mean that immunity attaches not to all judicial acts, but only to those made by an independent judge, which have been properly reached, and which constitute a final decision in a dispute (in the sense of being final and binding). State liability arises only if the final court decision constitutes a criminal act in itself. Also, failure to appeal obviates the right to claim to file an action for damages.

Where the Continental model goes its own way is in its readiness to translate state liability as, in fact, liability of the state and not as liability of the public officer as in Britain/ US model. Aggrieved parties must file action against the state and not against the individual official (as in Britain/ the US), and damages similarly accrue to the State Treasury as the case may be. The question then is whether the state can revindicate such damages on the officer who caused them (the right of ‘regres’). The German Constitution mandates the state to such right of revindication against its officials, but specifically excludes judges. Similarly, other continental constitutions or statute, such as the Belgian Constitution as we shall see shortly, denies the state any right to revindicate damages caused by judges in their official function. The consequence is that unlike in the British/ US model, the link between liability and judicial independence is much less clear. The ‘trembling fingers’ that stood at the heart of the Denning argument for restricting liability, is much less evident in the continental model.

The ANCA Bankruptcy Case

The similarities and differences between both systems were exposed in a rather spectacular recent development in the field of judicial liability. This occurred in Belgium, where the Supreme Court (Cour de Cassation) redefined judicial liability in the famous ANCA case (RW 1992-1993, 396). This case is remarkable for several reasons. The principal one is that it constitutes a shift away from the conventional way of looking at judicial liability in most Western countries. For this reason, the case has drawn much attention abroad, and has been extensively commented upon. No less important, the Supreme Court based its decision on arguments and legislation that are shared by many countries (including Indonesia). This gives the decision a grounding with broader relevance than just the national jurisdiction. Finally, the Court extensively reviewed the classical arguments used in some countries in support of restricting judicial liability, and seriously qualified them.

The facts can be summarized as follows. The case involved a declaration of bankruptcy by a court in violation of basic rules of due process. The decision was overturned on appeal. However, the company had been liquidated pending appeal and was unable to recover its assets or resume operations. It sued the state for damages for unlawful acts committed by its agents, being the Brussels commercial court. The claim was upheld by the Belgium Supreme Court. The Court did limit state liability to court decisions that are directly related to the exercise of judicial function and only if these had been overturned by final decision in the appeals process.

It serves to look at the Supreme Court arguments in some detail. The Supreme Court accepted liability on three grounds.

The first is that since the law of land gives state courts jurisdiction over disputes on civil rights, it is the function of the courts to safeguard such rights. This implies that civil rights must be determined without regard to the nature of the parties. By this the Supreme Court reaffirmed the constitutional law principle of that country, which makes no distinction between public or private acts of the state. It effectively quashed the idea that in the area of civil law, state acts benefit from immunity, or some privileged status in law.

The second argument is that the state is subjected to rules of law just like any other private party, and that this applies in no less measure in cases in which its actions affect individual rights or interests, and causes damages. No law in that country or general legal principle, says the Belgian Supreme Court in broad terms, exempts courts from a duty of care, or from damages in case of violation thereof. There is no reason to distinguish between the executive branch of the state and the judiciary, argues the court, as in this regard the state must be qualified as a whole and indivisible legal entity.

The third argument put forward by the court is that the state should be held liable for the actions of its organs on the basis of art. 1382-1383 Civil Code, if these acted within their jurisdiction. The threshold for this jurisdictional boundary is low: state liability arises if a person could have reasonably expected a judge or public officer to have acted within his authority, regardless of whether in fact he did.

On the basis of these arguments the Belgian Supreme Court accepted that the state could be held liable for damages caused by judicial mistakes in civil cases, to the extent that the judges acted, or could reasonably have been assumed to act, within the boundaries of their authority.

In the decision, the Supreme Court also engaged on a number of fundamental other issues that relevant to the discussion. These can be briefly summarized as follows:

a. Judicial Independence

The defense in the ANC case argued that judicial liability was excluded, as it violated the principle of judicial independence. This argument was rejected by the Supreme Court, which qualified this as an excessive definition of judicial independence. The Court went for a balancing test: it regarded judicial independence to be adequately secured by the fact that, except in cases of criminal violation, Belgium law disallows the state to seek recovery (revindication or regres) for damages against the judges themselves (for actions directly related to the exercise of judicial function). Liability attaches to the state only, not to the judge.

b. Separation of Functions

The defense also argued that holding judges liable would also violate the constitutional principle of separation of powers. This argument was rejected by the Supreme Court with the dual argument that it was judicial power itself that determined liability in this case (and no other state power), and also that here liability did not attach to any state power in particular, but to the state as single indivisible legal entity.

c. State and Organ Responsibility

The defense held that the protection and immunities extended to judges by the law of the land should also attach to the state. The argument is that the state can only act through its organs, and therefore should enjoy identical protection and immunities. Put in different terms, if organs enjoy immunity for certain actions that might otherwise be qualified as unlawful, then these actions cannot in fact be qualified as unlawful. The state must enjoy the same protection its organs have under the law.

The Supreme Court dismissed this argument by holding that for liability to arise it suffices that the organ acted within its (apparent) authority and damages to arise. It is not required, said the Court, that this organ also be held personally liable for this. The argument of the defense, said the Court, erroneously assumed that personal liability and wrongful action leading to damages is the same thing. The protection and immunities which judges enjoy relate to their personal liability, and do not affect the liability of the state. Put in different term, if a judge, acting within his authority, commits a mistake that gives rise to damages, then even though the law does not allow recourse against the judge personally, liability still directly attaches to the state on the basis of the organ responsibility of the Civil Code.

d. Appeal and Final Decision

The  most acute argument used by the defense was that of final decision and appeal. The first element is that allowing for judicial liability challenges the legal and binding authority of court decisions, as judges in deciding such a liability action would have to reconsider the underlying facts of the case. Judicial liability would lead to re-litigation, and not just violate the law, but create legal uncertainty. The other element is that of appeal. The legal system itself provides for rectification of errors through the legally defined appeal system. The appeal system by its very nature stands in the way of a claim for damages against either the state or the judges, so the defense argued.

The Supreme Court partially validated this argument by restricting state liability to court decisions that are directly related to the exercise for judicial function and only if these had been overturned by final decision on appeal.

The usefulness of the ANCA case for other countries is that it creates an interesting new test for judicial liability. The test can be summarized as follows. The state can be held liable for damages arising out of judicial wrongdoing if:

    is directly related to the exercise of judicial function;

    The decision has been overturned on appeal.

An additional contextual condition is that judicial independence must at all times be properly secured, which implies that the state shall not have any authority to redeem damages against the individual judge.

 Is This Relevant in Indonesia?

The question of judicial liability is relevant for Indonesia for many reasons, of which three can be mentioned here.

The first is that it enhances judicial accountability by placing the initiative to address judicial improprieties with disadvantaged litigating parties, and society. Exposure to liability litigation creates greater society accountability in the judiciary, and instills greater discipline in the professional performance of judges. Judicial liability therefore should be explored as a society driven mechanism that supports the current initiatives to strengthen professionalism in the courts.

The second reason why judicial liability needs to be addressed in Indonesia is that it cannot be ignored institutionally. Judicial liability is an inevitable side product of the Judicial Commission, which is mandated by the 3^rd Constitutional Amendment. The focus of discussions on the Judicial Commission to date has been its role in combating judicial improprieties. Now everyone agrees that if judges behave badly, they need to be sanctioned. But what happens to the parties that have been disadvantaged and suffered damages as a result of that improper judicial behavior? Policy makers may not want to consider that question now, but disadvantaged litigating parties assuredly will in the times to come. The establishment of the Judicial Commission therefore makes the issue judicial liability inescapable.

The third argument is that judicial liability cases are actually shaping up in the Indonesian court process. Cases are being filed in which parties seek to overturn court decisions on grounds of judicial improprieties, outside of normal appeal channels. This is one very small step away from calling for damages.

Conclusion

As is apparent from the above, all legal systems share a reluctance to hold judges liable for professional wrongdoing. Yet as this review has tried to show, this reluctance is not without qualifications, and no modern legal system has completely closed the door of judicial liability. Also, the ground in this area has shifted towards greater liability over the years, be it that this is more noticeable in some systems than others. This is an interesting development. For as the role of judiciaries shifts towards greater power and influence in governance matters, the question naturally arises whether judicial accountability is in all cases sufficiently ensured. The general debate in many countries on issues such as judicial recruitment reflects this concern about accountability. Also, accountability has been a major motive in changes in court management systems in recent years in various countries, including the emergence of Judicial Commissions.

As politics becomes judicialized, and traditional decision-making areas come to be dominated by quasi-judicial procedures, it becomes harder to escape the question whether judicial accountability has been sufficiently secured only thus. Changed thinking on judicial liability (in the sense of state liability for judicial wrongdoing), on which doctrines in western countries is 100 years old on average, may need revisiting.

Where Indonesia fits into this has been explained in the third argument of the above section. To this one final observation can be added. Judicial liability is a dangerous weapon to use. Wielded improperly, it can cut on both sides, and instead of an instrument of accountability, become one by which judicial independence is eroded. Yet its potential is considerable, both for society and for the judiciary itself. The Indonesian judiciary is facing a condition in which its ability to recover its credibility and effectiveness by solely relying on its own internal resources is seriously in doubt. It is this which has pushed the state to open up Supreme Court recruitment, require all judges to report to the Wealth Commission (Komisi Pemeriksa Kekayaan Pejabat Negara, KPKPN), make overtures for a special anti-corruption court and secure the establishment of a Judicial Commission through constitutional amendment. Yet all this in the end remains  very  much a state driven process. Carefully designed judicial liability would create society participation in this reform process, and generate a significant new boost to the institutional reform process.

References

Artikel ini sangat kuat merujuk pada buku Jongbloed A.W., Aansprakelijkheid voor optreden van de rechterlijke macht (Den Haag: Boom Juridische Uitgevers 1999). Referensi lain meliputi (This article drew heavily on Jongboed A.W., Aansprakelijkheid voor optreden van de rechterlijke macht (Den Haag: Boom Juridische Uitgevers 1999). Other references include the following):

Cohen D.R., 'Judicial malpractice insurance? The judiciary responds to the loss of absolute immunity', Case Western Reserve Law Review 1990:267

Dalcq R.O., 'La responsibilite de l'Etat du fait des magistrats. A propos de 'arret de la Court de Cassation du 19 decmebre 1991', Journal des Tribunaux 1992: 449.

Glazier R.S., 'An argument against judicial immunity for employment decisions', Nova Law Review 1987:1127

Huwaldt M., 'Pennsylvania narrows the scope of judicial immunity - Post v. Mendel', Tempel Law Quarterly 1987:523

Kortmann S.C.J.J., De aansprakelijkheid van de staat voor schade voortvloeiende uit rechterlijke uitspraken (Deventer: Kluwer 1974)

Oevelen A. van, De overheidsaansprakelijkheid voor het optreden van de rechterlijke macht

(Brussel: Ced. Samsom 1987)

Olowofoyeku A., Suing judges: a study of judicial immunity (Oxford: Clarendon Press 1993).

Pillai K.G.J., 'Rethinking judicial immunity in the Twenty-First Century', Howard Law Journal 1995:95.

Romagnoli J., 'What constitutes a judicial act for purposes of judicial immunity?', Fordham Law Review 1985:1503.

Schrage E.J.H., De aansprakelijkheid van de rechter voor beroepsfouten', RM Themis 1995:127