*EPF403 09/14/00
Text: Justice Sandra Day O'Connor on "The Life of the Law"
(Remarks to rule of law conference, Ulaanbaatar, Mongolia) (2820)

At a rule of law conference September 12 in Ulaanbaatar, Mongolia, U.S. Supreme Court Justice Sandra Day O'Connor elaborated on what she called "the three bedrock institutional principles" of democratic nations -- an independent judiciary, a free press, and a mechanism of guaranteeing basic rights to all citizens.

"Every country places its own distinct stamp on the system that it creates, but these principles transcend national differences," O'Connor said.

O'Connor said an independent judiciary was essential to the legitimacy of a democratic government itself, and that measures must be taken to ensure that the judiciary be a force free from the potential domination of other parts of government and that judges be "knowledgeable, even-handed, consistent, and incorruptible."

"The first, and perhaps foremost, method of ensuring judicial independence is to place judges' salaries and positions beyond the reach of outside forces," she said.

"Provisions to this effect in the American Constitution follow from the understanding that judges cannot perform their function with the necessary disregard for the government's preferred outcomes if the government has the ability to punish them," she explained.

O'Connor said freedom of the press must be protected so that citizens have access to the information and debate necessary for intelligent self-governance.

"The problems of nationalism, conflicts between different ethnic and cultural communities, the rise of crime, unemployment, inflation, and various other social and economic challenges make open criticism of the government seem dangerous and destabilizing at times," she noted.

"[But] only an independent and vigorous and responsible press permits democratic institutions to correct themselves through the powerful forces of informed debate and public opinion. . . . if a country is to adapt itself to new times and new ideas, it must permit the unconstrained exchange of opinions," O'Connor emphasized.

O'Connor said the third principle of a democracy was an effective mechanism for placing the most essential individual liberties beyond the reach of the majority, and to guard the individual against the excesses of collective government.

O'Connor acknowledged that democratic governance is by definition "majoritarian," since it is a form of government based on legislators and executives being chosen by the majority of people in free elections.

"Nevertheless, we [Americans] have placed within our democratic systems a mechanism to protect a range of civil and human rights, to ensure that the will of the majority does not run roughshod over the rights of the minority. . . . Otherwise, all citizens must live in fear that they will one day find themselves in the minority, and prey to the fears and passions of the political majority," O'Connor said.

"A remarkable feature shared by these principles I have discussed is how few words it takes to describe them, and how many years it takes to understand and to implement them," O'Connor said.

"As experience in [the United States] illustrates, generation after generation will dispute some of the proper meanings. That debate is an appropriate activity for a free society," she said.

Following is the text of Justice O'Connor's remarks:

(begin text)

Rule of Law Conference, Government House
Ulaanbaatar, Mongolia

September 12, 2000

Remarks by Sandra Day O'Connor, Associate Justice
Supreme Court of the United States

"The Life of the Law: Principles of Logic and
Experience from the United States"

These are times of tremendous change in governments across the world. Since the mid-1980s, a remarkable number of countries in Latin America, Africa, and the former Soviet bloc have turned from dictatorship to elected civilian government. I have been very impressed with the strides taken by these countries toward their goals of liberty and democracy. But if they are to retain and build on their recent gains, the new governments must put into place a framework that can ensure the survival of basic freedoms. Of course, such a framework must be adapted to the political and cultural history of each country. Already, we see the evolving democracies begin to differ significantly in their political, constitutional, and social development. But despite the differences among nations and in the forms of governments, some basic principles must be enforced if a government is to ensure the liberty of its citizens.

Today I would like to mention certain governmental features that, in my view, are fundamental in any free, democratic society. Indeed, Mongolia is encountering some of the fundamental issues that my country faced 200 years ago, and which it continues to address even today.

The starting point, of course, is the notion that there must be free and fair elections of legislators and executive leaders. This is the basis on which a people can govern themselves. But, as countries labor to build the institutions that will ensure the lasting and successful development of free and stable democracies, there are three additional principles that I believe must be put into place. First, there must be an independent judiciary that is separate from the influence or control of other branches of government in the decision-making process. Second, there must be protection of freedom of the press, so that the citizens have access to the information and debate necessary for intelligent self-governance. Third, there needs to be an effective mechanism for enforcing basic individual rights, even against the will of the majority of citizens, if necessary. Every country places its own distinct stamp on the system that it creates, but these principles transcend national differences.

Turning to the first of these principles, a critical safeguard in the American system is the independence of the judiciary. The framers of the United States Constitution recognized that it is essential to the legitimacy of the judiciary - and to the legitimacy of the government itself - that the judiciary be a force free from the potential domination of other parts of government.

The United States' model of government is based on a separation of powers. The separation of powers permits, and indeed, requires, each branch of government to act as a check against possible overreaching by another branch. Thus our judiciary is vested with the authority and independence to judge not only individuals, but the legality of legislative and executive action as well. It is essential that the members of the judiciary be knowledgeable, even-handed, consistent, and incorruptible. A judge may never render a judgment based on political pressure - or on the receipt of money or something of value. Any such judgment is a wholly improper exercise of judicial power.

Mongolia has recently adopted a strategic plan for judicial reform. I have looked at it, and it appears to be thorough and is an important part of building trust in the Mongolian judiciary. The plan includes programs to make judges accountable, responsive, fair, accessible, and effective. Each of these goals will, in the end, support judicial independence.

Every country must take steps to safeguard the independence of the judiciary. Judges are entrusted with ultimate decisions over the life, freedoms, rights, duties, and property of citizens. Judges will never have the respect and trust of the citizens if they are thought to be acting as the enforcement arm of an oppressive government or to be subject to corrupt influences.

The first, and perhaps foremost, method of ensuring judicial independence is to place judges' salaries and positions beyond the reach of outside forces. Provisions to this effect in the American Constitution follow from the understanding that judges cannot perform their function with the necessary disregard for the government's preferred outcomes if the government has the ability to punish them. The reason that federal judges in the United States do not fear the displeasure of the government is that they are guaranteed their offices, the Constitution says, during good behavior, and may receive compensation that cannot be reduced while they are in office. Other branches of government cannot intimidate or threaten the judiciary, whose members are removable only through the measure of impeachment. In the very rare instances when a federal judge is removed from office by impeachment, the process plays out in the full view of the public and, in that way also, underscores the integrity of the system.

Security in position and pay ensures that judges will not be afraid to enforce the law as they see it. Judges in some other countries, who work without these safeguards, have found themselves removed from office or stripped of compensation or benefits to which they were previously entitled.

Safeguards for both position and compensation are essential, because unless both are protected, the safeguard is empty. The failure to guarantee judicial salaries undercuts the security of permanent tenure even if it is ensured by the Constitution. Power over the purse strings, tenure, and working conditions of judges can too easily be converted into influence over the content of court decisions.

In the early days of the United States, the founders of our Constitution had difficulty in justifying the position of the judiciary to the American public as a check against an overreach of legislative or executive power. Trust came slowly. But if the essential safeguards of the judiciary are put into place, it is more likely that in time the citizens will learn to look at the judiciary as a bulwark of liberty.

An independent judiciary is necessary, but certainly not sufficient, to the maintenance of a free society. The second principle I want to emphasize is the importance of a free press. A judiciary that stands apart from the other branches of government is able to perform its function without fear of sanction. Likewise, a responsible press free from government control is able to perform its function of comment and criticism. Only an independent and vigorous and responsible press permits democratic institutions to correct themselves through the powerful forces of informed debate and public opinion.

The emphasis that the framers of my nation's Constitution placed on freedom of the press is demonstrated by its inclusion in the very first provision of our Bill of Rights. We remain committed to the principle described by Thomas Jefferson, when he said:

"Truth is great and will prevail if left to herself; . . . errors cease to be dangerous when it is permitted freely to contradict them."/1

Many of the emerging democracies around the globe face daunting problems that make control and manipulation of the press very tempting for government. The problems of nationalism, conflicts between different ethnic and cultural communities, the rise of crime, unemployment, inflation, and various other social and economic challenges make open criticism of the government seem dangerous and destabilizing at times. But if a country is to adapt itself to new times and new ideas, it must permit the unconstrained exchange of opinions. The leaders of newly forming democracies may fear criticism and wish to stifle the press. But only where the press is free to criticize, and the people are free to challenge the government, can freedom thrive and can the government be responsive to its citizens. A free press is a means by which government officials can be held accountable for their actions. In my view a responsible free press should be seen as a spur to more honest and more responsive performance. A healthy media reflects the views and the needs of the citizens in a way that occasional elections or public opinion polls never can accomplish.

It is undeniable that freedom of the press brings with it some distasteful excesses. It certainly has at times in the United States. The press may pander to the market for works of thoughtless criticism, with violence portrayed, and pornography, and sensationalism. The United States, too, still struggles to balance the need for free speech with the need for some regulation. Although it may at times be hard to strike the right balance, the preservation of freedom of the press at least justifies the effort.

The third, and last, element that I wish to touch on today is not as easily summed up in a few words as "an independent judiciary" and "a free press." It is the principle that certain fundamental rights, to which every citizen is entitled, must be placed outside the reach of political exigency.

In the United States Constitution these fundamental freedoms are spelled out in our Bill of Rights. It has permitted us to place the most essential individual liberties beyond the reach of the majority, and to guard the individual against the excesses of collective government. Although our Bill of Rights is only a few pages long, and has been in force for over two hundred years, even today debates continue over the proper meaning and implementation of its few words. But while we continue to dispute the exact outlines of the rights our Constitution guarantees, we are in agreement that our laws protect certain basic rights from any government intrusion.

As James Madison, who drafted our Bill of Rights, told Congress, the Bill of Rights was directed "sometimes against the abuse of the Executive power, sometimes against the Legislative, and in some cases against the community itself; or, in other words, against the majority in favor of the minority."/2

This assertion points out a tension within the concept of democracy. Americans, like Mongolians, are committed to democratic governance: a form of government based on the will of the people that is, by definition, majoritarian; a government where the legislative and the executive are chosen by the people in free elections. Nevertheless, we have placed within our democratic systems a mechanism to protect a range of civil and human rights, to ensure that the will of the majority does not run roughshod over the rights of the minority. A government that seeks to protect the liberty of its citizens must remove some matters from the impulses of the political majority. Otherwise, all citizens must live in fear that they will one day find themselves in the minority, and prey to the fears and passions of the political majority. It is the constitutional restraints placed on the majority that makes us free. These majoritarian pressures can be overwhelming at times, particularly in times of difficult social and economic change.

Governments need to create a haven where citizens enjoy their constitutional and civil rights despite all the powers that the state or the masses can bring to bear. And these rights have to be enforceable by an independent judiciary. If a nation does not provide the institutions and processes necessary for effective enforcement of their citizens' constitutional rights, its constitution will represent nothing more than a collection of grandiose statements.

And so, in the end, the three bedrock institutional principles - an independent judiciary, a free press, and a mechanism of guaranteeing the basic rights to all citizens - work together. An interlocking framework of principles has to be in place if a nation is to ensure the liberty of its citizens. I stressed today the importance of the independence of the judiciary. This is because, unless judges are free to enforce the law without fear of reprisal, the other principles I have mentioned can easily become empty promises.

A remarkable feature shared by these principles I have discussed is how few words it takes to describe them, and how many years it takes to understand and to implement them. Once the people agree on the precepts by which they will live, they have to face the challenge of putting these precepts into practice. As experience in my country illustrates, generation after generation will dispute some of the proper meanings. That debate is an appropriate activity for a free society. The newly forming democracies around the world have to learn to tolerate some open criticism and disagreement about the proper relationship between the government and the people.

Mongolia, like the United States, has a wealth of experience to draw upon. Mongolia is poised to develop a legal system that combines the best of both civil and common law traditions. By taking into account its historical legal traditions dating back to Genghis Khan's laws right up to the more recent Russian legal system, Mongolia may now develop a modern day system of justice which will serve it well in the new millennium. The people of Mongolia deserve to live in a civil society based on democratic principles and the rule of law, and with the knowledge that their basic human rights will be protected under a functioning and a fair rule of law. I wish you every success here in Mongolia, as you face the next decade, and all the decades after that.

1/Thomas Jefferson, "A Bill for Establishing Religious Freedom," 1779, in Papers of Thomas Jefferson, 2:546 (Julian P. Boyd, ed. 1950). 2/ Annals of Cong. 437 (1834). Mongolia - Life of the Law - 7

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(Distributed by the Office of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)

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