A study of another region's legal system is an excellent opportunity to reflect on the values that we protect in our own system.
WAR-TORN COUNTRY SEEKS MEASURE OF STABILITY BY ESTABLISHING FAIR, IMPARTIAL COURTS
By Michael A. WolffChief Justice of Missouri
A study of another region’s legal system is an excellent opportunity to reflect on the values that we protect in our own system.
I recently attended a conference in Kosovo, where the National Center for State Courts is working with the Kosovo judicial system under the auspices of the U.S. Agency for International Development. I was a member of a team of state and federal judges and court administrators who discussed how an effective judicial system operates. The keynote speaker, who appeared by video, was John Roberts, chief justice of the United States.
Kosovo is part of the former Yugoslavia. The vast majority of its people are ethnic Albanians. Serbia, its neighbor, claims Kosovo is part of its territory. The conflict resulted in war in the 1990s, which ended after the United States and its allies bombed Serbia and took further military action. Troops from various nations around the world enforce a truce under the auspices of NATO.
Kosovo now is under the supervision of the United Nations, which is expected to resolve the status of Kosovo soon. The Kosovars seek to have a sovereign democratic nation. The model to which their leaders look is the United States system separating powers into three branches of government:
executive, legislative and judicial.
For the courts, the goal is to be a separate branch of government to make decisions based on the law, independent of undue political influence from the executive or legislative branches. At the same time, courts are dependent on the other branches for resources and for the means of enforcing their judgments.
This is the delicately balanced interdependent system we Americans have been experiencing, and testing, for more than 200 years. The people of Kosovo, however, are trying to get it right in a matter of a few short years.
One obstacle, expressed to us by a Kosovo legislator, is the function of the judiciary under the former communist regime. During that time, courts existed solely as an instrument of the all-powerful executive and were, the legislator said, considered instruments of oppression. With that history, it is difficult for the courts to be seen immediately as protectors of the people’s legal and constitutional rights.
The key, in Kosovo as in the United States during our own history, is for courts to be guided by the law, not by the personal preferences of judges or the preferences of politicians currently in power. That is what we Americans call the rule of law, expressed by John Adams, who in 1780 wrote these words as part of the constitution of the Commonwealth of Massachusetts:
"The legislative department shall never exercise the executive and judicial powers or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end that it may be a government of laws and not of men."
What are the stakes for a society whose government is being developed? Because of the recent war, Kosovo has lost half of its 4 million population; many were killed, and many others have fled to other countries and have not returned. About 60 percent of those still living in Kosovo are unemployed, and the country is in great need of capital investment.
But therein lies the need for a strong court system. Those who have capital will not invest if there are no effective means for assuring that the contracts under which their investments are made will be enforced. The rule of law protects not just the constitutional rights of citizens but also the contractual rights of businesses and investors. Economic development is all but impossible unless there is a judiciary sufficiently trained, independent of political influence and able to follow the law in enforcing the arrangements that are made to bring economic progress.
Those of us who traveled to Kosovo hope its leaders are able to forge a strong government that will be able to protect its citizens and businesses in a way heretofore not seen there. We know it will be a struggle to instill trust and confidence in those courts, but for those of us here in America, where we continue to struggle to preserve the fairness and impartiality of our courts, we know the struggle is well worth it.