3.1.5. TRANSFER AND PROMOTION Transfer of judges to less favourable postings can be used as a threat to influence judicial behaviour. Rules for transfer must be carefully constituted to eliminate this threat, but allow for reasonable and necessary administrative reassignment and transfer of judges.52 While transfer and reassignment can act as a threat to influence judicial decisions if not properly controlled, promotion can be used as an incentive to reward judicial behaviour that is favourable to political elites. Any system of promotion must eliminate judicial advancement as a reward for political bias. The Basic Principles on the Independence of the Judiciary require that promotions occur through a system based on “objective factors, in particular ability, integrity and experience”,53 and Human Rights Committee General Comment No. 32 recommends that there be clear procedures and objective criteria for the promotion of judges.54 The Special Rapporteur’s Annual Report 2009 supports this with the recommendation that judges’ promotion should be decided on by an independent body composed of at least a majority of judges.55 3.1.6. COURT STRUCTURE The status of courts and the organization of the judicial system are sometimes embedded in constitutions, albeit to different degrees. The United States Constitution, for example, establishes only the United States Supreme Court and leaves the establishment and functioning of all the other courts to ordinary legislation (Art. III, cl. 1). The South African Constitution, on the other hand, establishes all courts, sets out the judicial hierarchy, and outlines the jurisdiction of each court in that hierarchy (Art. 166). Where the constitution does not establish courts, it may be open to the legislature and the executive to establish special or ad hoc courts, at their discretion, such as special courts to try those accused of acts of terrorism. The power to create special courts could be abused to allow special courts to circumvent ordinary (and perhaps often onerous) fair trial procedures, in so doing undermining judicial independence or at least the perception of judicial independence. In this regard, the Basic Principles on the Independence of the Judiciary provide:56 Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals. 3.2. THE JUDICIAL FUNCTION: INSTITUTIONAL INDEPENDENCE OF THE JUDICIARY 3.2.1. CONSTITUTIONAL VERSUS STATUTORY RULES FOR THE INTERNAL FUNCTIONING OF THE JUDICIARY The Basic Principles on the Independence of the Judiciary state that judicial independence must be set out in the constitution or the laws of a country: “The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country.” 57 Entrenching rules in the constitution provides protection against political manipulation, but must be balanced against the need to leave a degree of flexibility to adapt to changing circumstances, which can be best achieved through ordinary legislation. Also, courts must be flexible enough to react and adapt to the conditions and circumstances presented by each case, which means a constitution should not be too detailed in prescribing how courts should function in their day-to-day operations. The Beijing Statement of Principles of the Independence of the Judiciary states that the judiciary should be largely responsible for developing its own rules of administration.58 Accordingly, some constitutions allow that the “internal” functioning of the courts shall be determined by the courts themselves, usually within a framework of legislation or the constitution.59 3.2.2. JUDICIAL VS. ADMINISTRATIVE REMEDIES The right of access to justice and the right to an effective remedy are recognized by the UDHR (Art. 8). The right to a fair trial and to an effective remedy for the violation of rights in the ICCPR (Arts. 2(3) and 14), as well as in the other “hard” sources of international law, imply that the determination of any individual’s rights shall be through a fair hearing before a competent, independent and impartial tribunal. Human Rights Committee General Comment No. 32 recognizes with respect to Art. 14 of the ICCPR, access to justice is an inherent element of the right.60 Does this right require that individuals have access to courts and judges to determine their rights, or will administrative review processes suffice? The Special Rapporteur’s Annual Report 2008 notes the trend to broaden the definition of “access to justice” to mean “the effective availability of institutional channels for the protection of rights and the resolution of various types of conflict in a timely manner and in accordance with the legal order”.61 Art. 2(3) of the ICCPR, for example, confers a right to an effective remedy in respect of 52 Economic and Social Council, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Special Rapporteur on the Study on the Independence and Impartiality of the Judiciary, Jurors and Assessors and the Independence of Lawyers, endorsed by Commission on Human Rights resolution 1989/32 (the “Singhvi Declaration”), para 15. 53 UN Basic Principles on the Independence of the Judiciary, para 13. The African Union Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa reproduces this statement in principle A(4)(o). 54 UN Human Rights Committee, General Comment No. 32, para 19. 55 Report of the Special Rapporteur on the Independence of Judges and Lawyers, 2009, paras 68-72. 56 Para 5. 9 57 Para 1. Beijing Statement of Principles of the Independence of the Judiciary in the LawAsia Region, para 36. 59 See DRI and The Carter Center, Strengthening International Law to Support Democratic Government and Genuine Elections (2012), p. 17. 60 UN Human Rights Committee, General Comment No. 32, para 9. 61 Report of the Special Rapporteur on the Independence of Judges and Lawyers, 2008, A/HRC/8/4, 13 May 2008, para 16. 58