—Maxime Saint-Hilaire, Université de Sherbrooke, Canada & Léonid Sirota, AUT University, New Zealand
The topic of separate – concurring or dissenting – judicial opinions is sure to generate attention, and some controversy. There is a substantial academic literature on the subject, to which judges have often contributed, but discussion of judicial expressions of disagreement with colleagues and disapproval of the results they reach or their reasoning attracts wider notice. Both of us recently helped organize such public conversations ― in one case as a dialogue with Justice Côté, of the Supreme Court of Canada (where she is a noted, if not a notorious, dissenter) and, in the other, as part of a symposium on the Double Aspect blog involving Canadian academics and practitioners. Here, we would like to comment on another discussion of separate opinions, this one by the European Commission for Democracy through Law, a.k.a. the Venice Commission.
Common law jurisdictions have a long history of accepting separate opinions. While Chief Justices occasionally lament them – and some have been reputed to strong-arm colleagues into keeping their objections to majority decisions to themselves – formal prohibitions have been quite exceptional. The Judicial Committee of the Privy Council long gave ostensibly unanimous opinions, on the principle that advice to the Crown – which its decisions formally are – must not be divided. While dissenting opinions are now permitted, concurring ones are not. Somewhat similarly, the Irish Constitution expressly prohibits the publication, or indeed the disclosure of the existence, of concurring or dissenting opinions on questions on the constitutionality of bills referred to the Supreme Court by the President.
Indeed, common law judges traditionally gave their own personal reasons for judgment in each case. By now, this tradition of seriatim opinions has mostly given way to collective reasons, be they those of a majority, of a concurrence, or of dissenters. The change has not only been stylistic. It also reflects a more collegial approach to judicial deliberation. That said, there are non-negligible differences between common law legal cultures, and indeed between courts within individual jurisdictions. While the move towards joint majority reasons was launched early in the history of the American republic, notably by Chief Justice Marshall, individual opinions are still not uncommon in Australia and New Zealand.
By contrast, civilian jurisdictions (by which we mean those in the Roman-Germanic tradition) historically adopted the opposite approach: concurring and dissenting opinions were not permitted. Yet the law or judicial practice of many jurisdictions that banned the publication of separate opinions by the members of their supreme or constitutional courts now allows it to a greater or lesser extent. Only a small minority of the members states of the European Union, for example, still prohibit the publication of separate opinions: Austria, Belgium, France, Italy, Luxemburg, and Malta. At the supra-national level, the Court of Justice of the European Union rejects separate opinions, but the European Court of Human Rights and the International Court of Justice allow them.
In sum, the practice of the constitutional and supreme courts of civilian jurisdictions seems to be growing more and more similar to that of their common law counterparts. As the Venice Commission’s report observes, “[t]here is a growing trend among constitutional courts to allow separate opinions”. [5] This global trend suggests that the advantages of allowing separate opinions are increasingly seen as outweighing their putative drawbacks.
Chief among these perceived drawbacks is that separate opinions detract from the secrecy of judicial deliberations and are incompatible with the anonymity of judicial votes. The civil law tradition held such secrecy and anonymity for sacrosanct, on the basis that the authority of judicial decisions came from their unanimity. Yet as the Venice Commission notes “[e]ven in continental, civil law systems, separate opinions are no longer considered to be an exception to the rule of secrecy of individual votes.” [5] It was also thought that, by undermining the authority of court decisions, separate opinions – especially dissenting ones – generate legal uncertainty.
Furthermore, while individual judicial independence is among the chief arguments of the supporters of separate judicial opinions, their opponents also rely on it, arguing that “it is possible that a judge, appointed by a particular political actor, feels obliged to signal loyalty, to dissent (or not dissent) in order to please those who nominated him or her”. [21] There is also a concern that “[d]issenting opinions can be misused to attract public attention” [23] and, possibly, generate tension within the ranks of a court’s judges.
As for the advantages of separate opinions, they are said to include “a judge’s freedom of speech and independence from his or her fellow judges” [24] – although in our view, the former is simply a consequence of the latter. It is also argued that separate opinions strengthen, rather than undermine, judicial authority, not only by making the functioning of the courts and their role in interpreting the law more transparent, but also by helping improve the quality of majority reasons. Separate opinions can also show “that the court has also dealt with counterarguments and completed the reasoning of the decision rendered” [17] and provide “a benchmark against which the majority’s decision can be evaluated”. [19] This, in turn, helps improve the quality of the court’s jurisprudence and of the law more broadly, and strengthen the Rule of Law, and indeed democracy. Separate opinions can “enrich public, academic and political debate” [25] and, in some cases, prefigure the law’s future.
The Venice Commission therefore takes the position that, there being no real global standard on the issue, individual states have the choice of allowing or not the publication of separate opinions by members of their supreme or constitutional courts. That said, the Commission registers its “favourable attitude to introducing the right to submit separate opinions”. [60] In doing so, it takes note of a “paradox of dissent”, according to which, “if public judicial dissent can be seen as undermining the authority of a judgment, it can equally be seen as playing a constructive role in strengthening the legitimacy of courts precisely by doing so”. [59]
However, the Venice Commission also declares itself alert to the risk that the right to publish separate opinions will be abused. It points to the debate in the United States, where, it says,
before the 1950s, dissents [in the Supreme Court] were polite and even apologetic, stressing the focus on consensus. However, by the 1950s, they became more common and were not only an expression of disagreement, but also a judicial statement. The Supreme Court tried to mitigate this by reintroducing the “respectful dissent” expressing a “norm of collegiality” in the Court. [43]
How successful this effort has been is, however, questionable.
To mitigate the risks it sees separate judicial opinions generating, the Venice Commission makes a number of recommendations, including the following ones:
[S]eparate opinions should focus on explaining that the matter could be dealt with differently, perhaps, in a better way, but not that the solution chosen by the majority was of poor quality. A separate opinion should be considered as an ultima ratio solution. Therefore, it is essential that judges debate and attempt to influence the majority opinion before envisaging a separate opinion. [And] [t]he judges’ code of conduct or ethics should deal with separate opinions – not to dictate the contents, but to set out which lines should not be crossed, without impeding on the independence of the individual judge or harming the institution. [61]
We would like to make the following observations.
First, while judicial independence is invoked on both sides of the debate about separate opinions, in our view this principle strongly supports their permissibility. For one thing, one must not neglect the individual dimension of judicial independence or treat it as less importance as the collective dimension, as for example Chief Justice of Canada Antonio Lamer has done in his well-known opinion in the Provincial Judges Remuneration Reference. The Chief Justice treated the individual independence of judges as a matter mostly of tenure and salary protection. [120]-[121] In our view, the decision-making autonomy of a judge vis-à-vis his or her colleagues or head of bench is no less important.
And for another, it is not clear that there is any evidence to support the concerns for judicial independence, whether in its individual or collective dimension, that are invoked to oppose separate opinions. Judicial authority is well respected in common law jurisdictions, and it is not clear that judges are in any real sense beholden to the politicians who appointed them. Besides, if there were substance to this latter concern, the proper way to address it would be by reconsidering the criteria for or process of judicial appointment, not by curtailing the judges’ ability to publicly dissent from their colleagues’ views.
Second, we are not persuaded by the Venice Commission’s recommendations to circumscribe the practice of publishing separate opinions. The suggestion that dissenting or concurring judges should present alternative solutions but not criticize the quality of majority reasons may appear attractive to some, especially to who believe that independence is the primary justification for separate opinions. But whatever its theoretical plausibility, this suggestion is not workable. In practice, the better reasoned, the more compelling a dissent, the more likely it is to reveal weaknesses in the majority judgment. The line between proposing alternatives and criticizing is fine, if not evanescent; it is also likely to be in the eye of the beholder. It would be regrettable if judges hesitated to discharge their adjudicative responsibility, which individual (as well as collective) independence protects, for fear of making their colleagues look bad.
And if one attaches a greater importance to the ability of separate opinions to hold judicial majorities to account and to force them to justify their decisions more persuasively, then one should positively value, rather than suspect, the ability of dissenting and concurring opinions to expose the weaknesses of the majorities’ reasoning. Even harsh criticism can be justified – although it should certainly not be resorted to lightly – because there is often no other practical constraint on the ability of a majority of a (properly) independent court interpreting an entrenched constitution to give effect to its views and preferences.
The Venice Commission’s second recommendation referred to above, that separate opinions should only be a solution of last resort, would be excessive if it is seen as anything other than a call for judicial coordination. To be sure, majorities should be able to respond to potential dissenters’ objections or accommodate differences of views with concurring judges, before judgment is given and separate opinions issued. But, again, judges should not be inhibited from frankly stating differences of opinion. Moreover, there is a real danger that, in the process of compromising or trying to sweep fundamental disagreements under the rug, the reasoning of majority opinions will become muddled, and that they will fail to provide sufficient guidance to future litigants and courts.
Lastly, the recommendation that the dangers, real or supposed, of separate opinions be addressed through formal codes of conduct rather than as a matter of judicial ethics and good sense goes much too far. It simply isn’t possible to insist, at the same time, on the importance of individual judicial independence and on drawing “lines that should not be crossed”, in an area as subjective as the tone of a judicial opinion, in a written code that would enable complaints against judges for authoring (or even joining) a separate opinion deemed insufficiently respectful. Even if such complaints were not routinely upheld, they could easily be used to harass judges, and so to undermine the independence that the publication of dissenting or concurring views is meant to protect.
Fortunately, the Venice Commission has not elevated its recommendations to the rank of global standards. In our view, they should not be followed. No doubt, judges of multi-member courts must consider the needs of collegiality, which should impel them to narrow their disagreements with colleagues, and to temper the language in which they expressed – in appropriate cases. But this responsibility is a shared one – it burdens majorities no less than minorities, and discharging it is the duty of chief justices anxious to preserve the good functioning of their courts no less than of judges inclined to disagree with their colleagues. In any case, this responsibility, while serious, is a lesser one than that to give judgment in accordance to one’s own understanding of the facts and the law – including when one’s understanding is at odds with that of a court’s majority.
Suggested citation: Maxime Saint-Hilaire & Léonid Sirota, Dissenting from the Venice Commission on Dissenting Opinions, Int’l J. Const. L. Blog, Mar. 21, 2020, at: http://www.iconnectblog.com/2020/03/dissenting-from-the-venice-commission-on-dissenting-opinions/
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