Judges are independent, cannot be dismissed, are subject to no other authority but the law, and are equal in rights and duties. The conditions and procedures for their appointment and disciplinary actions against them are defined and regulated by the law. When delegated, their delegation is absolute, to the destinations and in the positions defined by the law, all in a manner that preserves the independence of the judiciary and the accomplishment of its duties. As in many other cases in the 2012 Egyptian Constitution, the danger here lies in the relegation of important details to ordinary law. This creates a danger that the legislature will be able to insulate itself from the scrutiny of an independent and impartial court by passing laws for the appointment, discipline, and conditions of service of judges that are favourable to the legislature. These important details should be set in the Constitution itself to reduce the possibility that the legislature can influence the composition of the judiciary by amending relevant legislation with a simple majority. 3.1.3. TERMS OF SERVICE Guaranteeing judges’ remuneration, and otherwise guaranteeing that the conditions and terms of their service will not be reduced unfavourably, is an important element of judicial independence. Threats of reductions in pay or less favourable terms of service can be used to influence judges’ decisions. judges or classes of judges. Embedding these details in a constitution limits the ability of the system to adapt to changes, since these details can only be changed by means of a demanding constitutional amendment procedure. 3.1.4. DISMISSAL, DISCIPLINE AND SANCTION The Basic Principles on the Independence of the Judiciary provide that judges should not be removed or suspended from office except for reasons of incapacity, inability to discharge their duties, or a lack of fitness for the position. Further, all disciplinary proceedings must adhere to standards of procedural fairness, with judges subject to discipline, removal or sanction only for violation or non-fulfilment of established standards of judicial conduct. All such proceedings must be subject to independent review.47 Human Rights Committee General Comment No. 32 states that judges should only be removed in cases of serious misconduct or incompetence.48 With respect to disciplinary procedures, the Special Rapporteur’s Annual Report 2009 states that an independent body should be tasked with the discipline of the judiciary, including questions of dismissal, rather than the legislative or executive branches. In addition, the requirements of “natural justice” or procedural fairness49 must be observed in any proceeding that may lead to the dismissal or suspension of a judge, and any decision of such a body must be susceptible to judicial review.50 Tunisia’s June 2013 draft Constitution accordingly provides (Art. 104): The Basic Principles on the Independence of the Judiciary provide that “The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.”43 The Consultative Council of European Judges’ Magna Carta of Judges provides:44 In order to avoid undue influence, judges shall receive appropriate remuneration and be provided with an adequate pension scheme, to be established by law. The Special Rapporteur’s Annual Report 2009 notes the principle that judges’ salaries must be guaranteed by law,45 and refers to the recommendation in the Basic Principles on the Independence of the Judiciary that judges’ salaries should be “adequate”.46 While a constitution may provide that the remuneration and benefits of judges shall not be varied in ways that are disadvantageous to judges (e.g. Constitution of Kenya, Art. 160; Constitution of South Africa, Art. 176), the constitution need not stipulate what the remuneration and benefits of judges shall be. These details can be left for determination by ordinary legislation or government regulation, applicable to all 43 Para 11. Para 7. Report of the Special Rapporteur on the Independence of Judges and Lawyers, 2009, paras 73ff. 46 Para 11. 44 45 8 No judge may be transferred without his consent, no judge may be dismissed, and no judge may be suspended, deposed, or subjected to a disciplinary punishment except in such cases and in accordance with the guarantees provided for by the law and by virtue of a justified/reasoned decision issued by the Supreme Judicial Council. These measures are consistent with the international law on judicial security, but it is important to realize that countries in transition from authoritarian regimes may require special dismissal and appointment mechanisms. The Special Rapporteur’s Annual Report 2009 recognises that in transitional periods, the processes for the removal of judges associated with previously authoritarian regimes are exceptional.51 47 UN Basic Principles on the Independence of the Judiciary, paras 17-20. UN Human Rights Committee, General Comment No. 32, para 20. See also DRI and The Carter Center, Strengthening International Law to Support Democratic Government and Genuine Elections (2012), p. 17. 49 Natural justice or procedural fairness, as the concept has developed in common law countries in particular, is a requirement of proceedings in court or in other tribunals and forums. It consists of two components: First, natural justice prohibits bias on the part of the adjudicator or person presiding over proceedings, including the perception of bias. Second, every party to the proceedings must have a fair opportunity to present his or her case to the forum, ensuring that the forum hears all sides of the dispute. 50 Report of the Special Rapporteur on the Independence of Judges and Lawyers, 2009, para 61. 51 Ibid., para 64. 48