Beyond Judicial Independence


The judge overseeing the trial of Abdul Rahman, the Afghan man who could face the death penalty for converting to Christianity, says he is determined to resist outside interference. "There is no direct pressure on our court so far," he says, "but if it happens we will consider it interference." This is the stance of tyrants the world over, but it is also the correct position for a judge defending the rule of law. In this case, the law, which allows the prosecution and execution of infidels (assuming that's the correct interpretation of Islamic principles), is barbaric. But how can the U.S. go along with a constitution that makes Islam the supreme law of Afghanistan, insist on an independent judiciary to apply the law, and then complain when judges make a conscientious effort to do so?

Or consider Oleg Shcherbinsky, the Russian railroad worker who last month was sentenced to four years in a labor camp for daring to be hit by the speeding car of a regional governor, who was killed in the crash along with his entourage. The prosecution successfully argued that Shcherbinsky, who was making an apparently legal left turn, had a duty to yield to the politician's official car. Assuming that interpretation of Russian law was valid, Shcherbinsky's conviction was the correct, though unjust, result. And yesterday, when an appeals court overturned Shcherbinsky's conviction in what The New York Times says "may be one of the quickest appellate reviews in Russian judicial history," it apparently was responding to intense popular outrage about the case. "I would very much like," a Russian legislator told the Times, "if, in the future, legitimate, just and fair decisions could be taken not under pressure from somebody or the other, but simply because judges directly and consistently followed the law and their own legal consciences."

But what happens when following the law does not lead to just and fair decisions? Judicial independence and the rule of law, like democracy, are important, but they do not guarantee freedom and justice; the details of the law matter too. That may sound like an obvious point, but it's one the Bush administration seems to be missing when it says the U.S. model of liberal democracy should not be imposed on countries with different traditions. To the extent that countries such as Afghanistan and Iraq put their own spin on democracy, they are apt to be less free and less just. Perhaps the president believes, despite his crusading rhetoric, that compromises with tyranny are necessary for the sake of stability. But in that case he should not be surprised when one of the nice new democracies he creates executes an infidel.