The USA Journals Volume 03 Issue 04-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
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Pages:
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Doi:
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‘
ABSTRACT
This article analyzes judicial tenure and its impact on judicial independence in jurisdiction of Uzbekistan
and the United States. The author gains critical insight into judicial tenure in both countries and offers
a proposal to reconsider judicial tenure in Uzbekistan based on his empirical research.
KEYWORDS
Judiciary, judges, courts, judicial tenure, lifetime tenure, limited tenure.
INTRODUCTION
Due to the serious attention paid by the
international community to the independence
of the judiciary, over the past 25 years, the rules
aimed at insulating the judiciary from external
influences have increased in the drafting of
constitutions around the world. Today, 77% of
the world constitutions have declarative rules
that the judiciary is an independent branch of
government [1].
Judicial Tenure And Its Role In Securing Judicial
Independence: Practices From Uzbekistan And The United
States
Botirjon Kosimov
Senior Lecturer And Independent Researcher At Tashkent State University Of Law, Uzbekistan
Journal
Website:
http://usajournalshub.c
om/index,php/tajpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 04-2021
126
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
125-131
Doi:
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In general, constitutional rules [2] concerning
the independence of the judiciary are provided
in a form of declarative rules and explicit
measures, such as judicial tenure and judicial
salary, limiting the participation of the
executive in the selection and dismissal of
judges [3].
J. Melton and T. Ginsberg assert that
declarative rules on the independence of the
judiciary
cannot
fully
guarantee
the
independence of the judiciary. The reason is
that if judges make decisions which are
unfavorable to other authorities, declarative
rules cannot prevent their desire to act
deliberately against judges. In addition,
declarative rules make the independence of
the judiciary into an abstract concept.
Therefore, the constitution should include
institutional protections to ensure judicial
independence [4]. According to the Basic
Principles on the Independence of the
Judiciary, the independence of the judiciary
must be enshrined in the constitution or law by
the state [5].
I agree with the above-mentioned scholars, as
the Constitution is an important political and
legal document that must meet the urgent
need for national regulation in the country and
society [6].
The Constitution of the Republic of Uzbekistan
reflects a tenure of the Oliy Majlis, the
President, khakims and prosecutors. However,
it does not provide rules clearly establishing
judicial tenure. Reflection of judicial tenure in
the constitution is of great importance in
ensuring the independence of judges.
Judicial
tenure
is
governed
by
the
Constitutional Law “On the Constitutional
Court of the Republic of Uzbekistan” and the
Law “On Courts”. According to the Law “On
Courts”, a judge is appointed or elected for a
term of 5 years for the first time, 10 years and
for an indefinite term of office for the next time
[7].
According to the law, the maximum age for
judges of the Supreme Court of the Republic of
Uzbekistan is 70 years, for judges of other
courts
‒
65 years, this age can be extended to
5 years and retains the right to retire when
judges reach retirement age [8]. This means
that judges in Uzbekistan are not elected or
appointed for life.
However, the term of office of the
Constitutional Court Justices is 5 years. In
addition, the same person may not be elected
a judge of the Constitutional Court more than
twice [9]. The parliament has passed a the Law
“On the Constitutional Court of the Republic of
Uzbekistan” which is expected to be signed by
the
President,
according
to
which
Constitutional Court Justice are elected for a
term of 5 years for the first time, 10 years for
the next time. However, they are not secured
an indefinite term of office.
In fact, it is debatable what the term of office
of judges should be in order for the judiciary to
be truly independent. U.Mingbaev emphasizes
that it is expedient to appoint district judges
for 5 years, regional judges for 10 years, judges
of the Supreme Court for 15 years and, finally,
judges of the Supreme Court who have
demonstrated their potential for life [10]. A.
Egamberdiev, G. Abdumajidov argue that the
appointment or election of judges for life
contributes
to
ensuring
real
judicial
independence [11].
According to M. Redish, the authors of the
United
States
Constitution
sought
to
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The American Journal of Political Science Law and Criminology
(ISSN
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consciously protect judges from political
pressure by creating constitutional rules
related to the term of judicial office and the
protection of judicial salaries [12].The Unites
States Constitution reflects the legacy of
judicial independence and this is regarded a
constitutional value in American society [13].
Article III of the Constitution of the United
States of America specifies that “The judges,
both of the supreme and inferior courts, shall
hold their offices during good behaviour... ”
[14]. This means that federal judges are
guaranteed a lifetime term of office.
“During good behaviour” means that judges
remain in office until they have committed an
act prohibited by the United States
Constitution. Therefore, in the Constitution,
the wordings “during good behaviour” are
used instead of the word “lifelong”. The
concept of “good behavior” was first provided
in the Act of Settlement, enacted in England in
1701. Prior to this Act, the monarch would
independently fix a term of office for each
judge in individual letters patent [15].
Lifelong judgeship is regarded a guarantee for
the independence of the judiciary, “Thus, once
appointed they don’t have to please their
constituents to try to gain reelection, and can
simply do their job… The lifetime term
provides job security, and allows appointed
judges to do what is right under the law,
because they don’t have to fear that they will
be fired if they make an unpopular decision.”
[16] An unpopular decision is defined as any
decision, which most people do not like. They
can be such decisions related to gender
equality [17], political rights [18], public affairs
[19], labor migration [20], public health [21],
civil society [22] and so on.
Since it is not possible to fully enumerate the
acts of good behavior in the Constitution, the
acts that are contrary to good behavior are
mentioned. Article II, Section 4 of the United
States Constitution provides “The President,
Vice President and all civil Officers of the
United States, shall be removed from Office on
Impeachment for, and Conviction of, Treason,
Bribery,
or
other
high
Crimes
and
Misdemeanors.” This includes federal judges
through the concept of “civil Officers” [23].
However, according to 28 U.S. Code § 371
judges may retire if they have reached a certain
age. In this case, a retired judge is secured
annual pension equal to annual income of the
last year of the judicial office for the rest of his
or her life. A judge who has reached the age of
65 may retire if he or she has served as a judge
for 15 years and a judge who has reached the
age of 70 for 10 years. Judges between the
ages of 65 and 70 must have between 15 and 10
years of judicial experience, respectively in
order to retire [24].
In addition, according to the Law “Judicial
Conduct and Disability Act”, adopted in 1980,
any person alleging that a judge is unable to
discharge all the duties of office by reason of
mental or physical disability may file a written
complaint [25]. In this case, a judge has the
right to retire.
If a judge does not retire, the President
appoints an additional judge with the advice
and consent of the Senate. This means that no
one can remove a judge from office by any
means other than impeachment [26].
Along with scholars who support judicial life
tenure, there are also critics of it. In particular,
according to S. Prakash, it is a constitutional
mistake that has been going on for centuries,
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when the lifelong term of judicial office should
be abandoned [27]. This view is also supported
by G. Calabresi and J. Lindren, who propose the
establishment of a fixed and non-renewable 18-
year term of office instead of a lifetime term of
office [28].
From among American states, judicial lifetime
appointment has only been introduced in
Rhode Island [29]. In Massachusetts and New
Hampshire, judges are appointed for life, but
until the age of 70 [30]. In the state of New
Jersey, judges are appointed for 7 years and
then until 70 years as the next term [31]. In
some states, judges are appointed on a long-
term basis. In Delaware, for example, judges
are appointed for 12 years [32].
As the average life expectancy of Americans
increases, so will the length of service of judges
in the judiciary in the future. The first five
judges of the U.S. Supreme Court have served
for about nine years, but that number has now
tripled [33].
Aged judges cause ineffectiveness in the
administration of justice and in writing and
declaring court decisions. Further, due to
lifetime appointment of judges, the Supreme
Court of the United States has been politicized
and therefore, according to Ward, “scholarly
consensus
suggests
an
alternative
of
staggered, 18-year terms, allowing each
president to nominate two justices every four
years. Under this plan, each president would
have the opportunity to leave his or her mark
on the court, promoting democracy." [34]
D. Garrow [35] and L. Epstein, J. Knight, O.
Shvetsova [36] assert that the only purpose of
setting an age limit for judges is to prevent
people with mental disorders from working as
judges in the judiciary. Therefore, in many
countries where lifelong judicial tenure has not
been introduced, judges must retire at the age
of 65.
As a result of the recent judicial reforms [37],
Uzbekistan has introduced a system of
appointing or electing judges for the first time
for five years, then for ten years and for an
indefinite term of office [38]. However, a
survey
conducted
among
75
judges
demonstrates that there is a possible need for
reconsideration of the current judicial terms.
The judges was asked a question “How would
your hearing a case, regardless of any
influences, affect your chances of being
elected or appointed to the next term?” 45.3%
of respondents answered “If I work on such a
principle, it is highly unlikely for me to get to
the next term of office", 14.7% provided the
answer “I cannot say anything”.
Judicial tenure has a great role in securing
judicial independence. However, based on the
survey results, we can conclude that in
Uzbekistan from a de facto perspective, a
judge elected for five years for an initial judicial
term is not guaranteed reelection or
reappointment for the next terms even if he or
she decides a case lawfully in spite of any
influence. This reflects a paradox between the
purpose for reformed judicial tenure and the
survey results.
Another survey question “Election and
appointment of judges for life would secure
their independence. Do you agree? ” resulted
that 77.3% of judges provided answered “Yes, I
agree” while 22.7%
‒
“No, I do not agree”.
Taking this survey result into account and the
above mentioned negative aspects of the
appointment of judges for life, I propose to
elect and to appoint all judges in Uzbekistan for
a limited tenure
‒
until 65 in the future.
The USA Journals Volume 03 Issue 04-2021
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(ISSN
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Published:
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This is important especially for the Justices of
the Constitutional Court of the Republic of
Uzbekistan as they make decisions that affect
the life of the whole society. The ability of the
Constitutional Court to make decision
independently of political pressure depends on
the term of office of its justices [36]. Therefore,
it is essential to elect Constitutional Court
Justices for the same term as judges of general
jurisdiction courts I proposed. This would
ensure the same level judicial independence
for the Constitutional Court Justices.
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(ISSN
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Pages:
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(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
125-131
Doi:
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F
