The Appointment of Presiding Judges, Round 3

Once more into the breach, dear friends. Judge Ibañez Carranza has now responded to the Joint Declaration issued by Judge Eboe-Osuji as President of the Court and Judge Hofmański as the President of the Appeals Division. Short version: she’s not happy about the Joint Declaration.

Three specific points are worth mentioning. First (para. 2), Judge Ibañez Carranza argues that Judge Eboe-Osuji and Judge Hofmański abused their administrative powers by issuing the Joint Declaration in their capacities as President of the Court and President of the Appeals Division, respectively, as opposed to in their capacity as appeals judges. Doing so, she suggests, is inconsistent with the equality of the judges in the Appeals Division.

Second, Judge Ibañez Carranzah questions (para. 3) the very authority of Judge Eboe-Osuji and Judge Hofmański to issue the Joint Declaration:

It must be highlighted that the issuance of the joint declaration finds no legal basis and is not supported by any reasons based on law, let alone the legal framework applicable before this Court. Indeed, the joint declaration makes no reference to any legal provision that would justify the issuance of this joint declaration which aims to disqualify my dissenting vote rendered in the exercise of my capacity as a judge of the Appeals Division, and as an expression of my Judicial Independence, in accordance with the legal framework of the Court.

Third, Judge Ibañez Carranza unequivocally rejects (para. 5) the Joint Declaration’s suggestion that she should have provided her dissent to her colleagues prior to releasing it:

A dissenting judge must be free to express his or her opinions and only be guided in their decision making process by the rules of law. Demanding the setup of a procedure whereby dissenting judges must first afford the other judges an opportunity to review their dissent with a view to suggesting amendments or changes, as it seems to be implied in the joint declaration,4 could amount to censorship which could, in turn, have the serious consequence of affecting the internal decision making process thereby impeding the free and independent exercise of the judicial functions entrusted to the Judges of this Court.

I don’t have much to say about the substance of Judge Ibañez Carranza’s statement, though I’m very sympathetic to her points — particularly that there seems to be no legal basis for the Joint Declaration. That said, I can understand why Judge Eboe-Osuji and Judge Hofmański are not that happy Judge Ibañez Carranza made public what is basically an internal Appeals Division matter. I don’t know whether there is more going on behind the scenes, but it seems clear that the Appeals Division is in something of a state of chaos right now. That’s not good…