GOOD GOVERNANCE IN THE HANDS OF THE JUDICIARY : LESSONS FROM THE EUROPEAN EXAMPLE T

It is certainly well observed that the subject matter of good governance, by its mere terminology, constitutes a fairly recent evolution which has been, notably in the 1990’s, closely linked to the idea of giving a new impetus to development policy, in particular in Sub-Saharan Africa. The new terminology has received widespread interest which has made the political call for good governance a central feature of development policy ever since it has been put on the international agenda by a World Bank study in 1989. Despite a rising number of critics claiming this concept to be without any substance and asking whether it would be new after all, the idea of good governance has flourished ever since and has certainly evolved into a transnational concept of political leadership, a real leitmotiv for a common approach to the way how our global village should be governed. The incredible success story of the striving for good governance is, in my view, due to three cumulative aspects which certainly contributed a great deal to the general agreement that good governance is a concept without proper alternative: Firstly, the concept of good governance is self-evident. It needs nothing else but common sense to be understood: Entrepreneurs will not invest in unstable countries and people, whether entrepreneurs or not, will not wish to live there, if they can afford to go


Introduction
It is certainly well observed that the subject matter of good governance, by its mere terminology, constitutes a fairly recent evolution which has been, notably in the 1990's, closely linked to the idea of giving a new impetus to development policy, in particular in Sub-Saharan Africa.The new terminology has received widespread interest which has made the political call for good governance a central feature of development policy 1 ever since it has been put on the international agenda by a World Bank study in 1989. 2 Despite a rising number of critics claiming this concept to be without any substance and asking whether it would be new after all, 3 the idea of good governance has flourished ever since and has certainly evolved into a transnational concept of political leadership, a real leitmotiv for a common approach to the way how our global village should be governed. 4The incredible success story of the striving for good governance is, in my view, due to three cumulative aspects which certainly contributed a great deal to the general agreement that good governance is a concept without proper alternative: Firstly, the concept of good governance is self-evident.It needs nothing else but common sense 5 to be understood: Entrepreneurs will not invest in unstable countries and people, whether entrepreneurs or not, will not wish to live there, if they can afford to go 3 / 234 elsewhere. 6Secondly, the concept of good governance is sufficiently vague to absorb a great variety of political preferences as well as substantive differences.Its flexibility is most certainly the reason why it has met so little resistance and found so much support.And thirdly, it was issued at the right point in time when public opinion was profoundly marked by the experience of the revolutionary force of glasnost and the general inability of corrupt regimes around the world to meet today's challenges. 7t beyond all characteristics of our modern understanding of good governance, we should not forget the fundamental insight that the striving for good governance exists as long as mankind is reflecting on ways and means to deal with public matters and notably to govern the polity on local, regional, national and international levels.Therefore the quest for good governance is universal and certainly not specific to our times.As in Africa, we are well aware in Europe that good governance is an important element to foster democracy and to ensure the general acceptance of public policies.And in particular the fundamental nature of the requirements of the rule of law may not be subordinated to consideration of mere political or economic opportunity.But I found the most convincing proof for this insight when I was, as it is always the case, not looking for it but on a tourist visit with my family admiring the neoclassical building of the Supreme Court of New York in lower Manhattan erected in the late 18th century.When reading the inscription in the frieze I suddenly realized the general importance of the subject matter under discussion.The inscription reads as simple and as fundamental as this: "The true administration of justice is the firmest pillar of good government".This insight will be this contribution's manifesto.

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with other parts of the world and the EU could make a valuable contribution to global governance, 13 this is the reason why.

Normative consequences
The Treaty of Lisbon contains quite a number of rules and obligations in respect of the concept of good governance.In that sense, the principle of transparency has found its symbolic expression in the most prominent place of 7 / 234 before any individual measure is taken which would entail adverse effects, the right of a person to have access to his or her file while respecting the legitimate interests of confidentiality and of professional and business secrecy and, finally, the obligation of the administration to give reasons for its decisions.In addition, the institutions are under the obligation to compensate for damages caused by their action.Finally everyone has the right to write to the institutions of the Union in any official language and to receive an answer in the same language.
In search for a better quality of administrative proceedings, a code on good administrative practise, a soft law instrument based on the logic of best practise has ultimately been adopted.Thus it has to be noted that the code has so far not been able to develop a relevant impact on the administrative decisionmaking in the European institutions.

The role of the judiciary
It is quite self-evident that the above cited provisions of the

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as in public procurement cases. 15In recent years, the right of access to documents has triggered a great deal of litigation before the courts of the European Union.But before entering this topic, let us refer back to the traditional role of the Court of Justice as an administrative judge whose principal mission is to ensure the legality of administrative actions conducted by the institutions of the European Union.

The traditional role of an administrative judge
Ever since the famous Algera-judgement, 16   give substantive reasons can result in the annulment of a decision as this duty is seen to be an essential rule of procedure.The statement of reasons must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question as to enable the persons concerned to ascertain the reasons for the measure and to allow Community courts to exercise their power of review.The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure or other parties may have in obtaining explanations. 19In its landmark decision in the Kadi case concerning the protection of fundamental rights, the Court has strongly emphasised the direct link between the obligation to give reasons and the fundamental right to an effective judicial remedy.11 / 234 respecting the rule of European law to the same extent as it has become selfevident for the respect of national laws.

The ECJ's jurisprudence on transparency and on the right of access to documents
In recent years the Court has paid particular attention to ensure respect for the obligation to transparency and notably to the right of access to documents.The importance of this issue is reflecting a general tendency in the recent evolution of administrative law in many countries throughout the world.In the European context, the Nordic countries are particularly attached to the objective of administrative transparency and to a general right of access to documents. 25eir strong impetus has led to a far reaching guarantee of transparency and access to documents in regulation no.1049/2001 which declares in recital 2 that "openness enables citizens to participate more closely in the decisionmaking-process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.Openness contributes to strengthening the principles of democracy and the respect for fundamental rights as laid down in Article 6 of the EU Treaty and the Charter of Fundamental Rights of the European Union".
Therefore the regulation describes its purpose in recital 4 as "to give the fullest possible effect to the right of public access to documents".
Confirming these fundamental findings, the Court has emphasised in its settled case law that exceptions to the right of widest possible access must be interpreted and applied strictly. 26Accordingly, the right to access covers all documents in possession of the European institutions, even those emanating 12 / 234 from Member States or from mixed commissions involved in delegated legislation. 27This general interpretation rule has led to the conclusion that the institutions do in quite a number of cases not live up to the full extent of the obligation to ensure public access to documents.Even the legal expertise established by a legal service of one of the European institutions in the course of a legislative procedure, is, in principle, covered by the obligation to public access of documents. 28The particular sensitivity or importance of such a legal expertise might, under given circumstances, justify a refusal of access to documents if an institution is able to demonstrate in a substantive manner that the disclosure would be incompatible with the protection of the legal privilege granted to legal services.Along these lines the Court has held quite recently that a legal expertise having been produced in the course of an election scrutiny procedure does not have to be disclosed in the following judicial procedure, since this would constitute a breach of the principle of equal defence. 29Finally, it should be noted that the European Court of First Instance already had the chance to judge on the interesting question of how to find a fair balance between conflicting fundamental rights, such as public access of documents in relation to professional and business secrecy or to the right to privacy.Currently the Court of Justice is considering the appeal in these cases.
Considering the case law of the Court it is very difficult to judge whether the public right of access to documents has had a considerable impact to improve the legitimacy of the action taken by the institutions of the European Union and the degree of its acceptance by the European citizens.But, however we may evaluate this impact, it is essential to note that the right of public access to documents constitutes a value in itself which proves how much the European integration is attached to democracy and to the rule of law.In particular, the

Good governance and the judiciary
My foregoing remarks were certainly placing the judiciary in the classical role of the ultimate guardian of the right to good governance and more generally speaking of fundamental rights.But who is supervising the supervisors?In the first place my question points to the obligation of the judiciary to ensure a good administration of justice.Since judges too hold public offices and have to exercise their duties independently and unbiased, the quality of the administration of justice remains an important element in the quest for good governance.We are well aware that the mere independence of courts and its judges is not enough to avoid maladministration of justice.Sometimes it may even be part of the problem.But how do we make sure that the judiciary is fully respecting the objectives of public welfare?Certainly by good law-making.
Moreover, we have to be aware that the simple historical evidence that administrative discretion without effective scrutiny has turned into tyranny 30 may well become true one day for the judiciary when its well functioning is not maintained.This is why it proved to be necessary in the context of European particular degree of personal humility and of character in order to resist the temptation of always having the last say in a constitutional system, be it national, supranational or international.What I am referring to has best been expressed years ago by Griffith: When judges get carried away by their personal convictions of where rightness and justice lie and stray too far from the established rules of the common law or the words of statutes, they create uncertainty.If those convictions are held on issues which are political, broadly or narrowly so, then they will arouse animosity as well as support.And if the political issues are serious and large, as are those of industrial relations, judicial pronouncements begin to lose their authority and their legitimacy. 33

Conclusion
It is generally believed that mankind is constantly continuing its evolution.Many people have little doubt that something new is generally presumed to constitute some progress.And even if a proof to the contrary is permissible, it is not of much use trying since one cannot put the wheel of history into reverse.I have always been fascinated by the question who actually decides which change means progress and which constitutes a setback.That's why I subscribe increasingly to the irony of answering the classical question "Where are we going?" by a simple "I don't know, but anyway, as long as we are moving ahead".But seriously, human evolution has often taken place in a circular manner.To my mind, there is nothing wrong with it, as long as we finally find out where we stand and why we are back where we were some time ago.
In the end I do not think that all our topical discussions about good governance really address a new problem and my personal guess would be that our have to adjust their findings to the particular challenges of our modern times resulting from the constantly changing technological, social and economic situations in which we live today.If we limit ourselves to this task, there is undoubtedly a great deal to do and this is anyway where we should start.But beyond this mission of which we should be proud, I am afraid, that my conclusion reads as follows: "The true administration of justice is the firmest pillar of good government".
Article 1 paragraph 2 EU.Equally fundamental is the acknowledgement of the principles of political participation embodied in Article 11 EU.Notably the obligation of the European institutions to hold public hearings with representative associations and to communicate with civil society on a transparent and regular basis are among these principles.The right of access to documents of the Union's institutions has now been recognised as a fundamental rule in Article 15 EU.Furthermore, according to Article 16 paragraph 8 EU the European Council of ministers has to meet in public when acting as a legislator.These Treaty rules are complemented by the Charter of Fundamental Rights of the European Union which will enter into force with the final ratification of the Lisbon Treaty.The chapter on citizen's rights contains an impressive declaration of rights, such as the right to vote and to stand as a candidate at elections to the European Parliament and at municipal elections in Articles 39 and 40.The right to good administration can be found in Article 41 and the right of access to documents is embodied in Article 42.This list is completed by the right to refer cases of maladministration to the European Ombudsman in Article 43 and by the right to petition guaranteed by Article 44.In particular, the right to good administration is worth noting.It gives every person the right to have his or her affairs handled impartially, fairly and within reasonable time by the institutions of the Union.This includes the right of every person to be heard 13 Fombad 2001 JSAS 26 and further.
delivered in 1957, the Court has taken an active role in the evolution of legal principles which are generally perceived as specific expression of the rule of law.Thanks to the Court's case law on procedural rights, the right to be heard, to have access to files and the obligation of the administration to give reasons have already been well established before they were finally codified in Article 41 of the Charter of Fundamental Rights.Already since the early 1970's the right to be heard won recognition in the jurisprudence of the Court by giving effect to the basic Roman law principle of "audiatur et altera pars".17The same is true for the right of every answers will not differ considerably from those found by the philosophers of the enlightenment, by those who established the rule of law in the first place and by the founding fathers of our modern democratic governments.Of course we Griffith The Politics of the Judiciary 205.

T VON DANWITZ PER / PELJ 2010(13)1
It will be dealing with what the 8For many European countries which are looking back on some centuries of a powerful national history it is not self-evident to accept that major political decisions, directly affecting the life of every ordinary citizen, are taken jointly with other nations on the European level.According to the institutional and procedural structure of the European Union in major fields of politics decisions are taken by qualified majority, so that the consent of every Member State is not needed.The same difficulty to accept this "intrusion" by European institutions into national affairs arises in European countries which have, for historical reasons, not been able to enjoy much of their sovereignty in post-World War II history.Additionally, increasing distrust in institutions and their policies is also noted for national parliaments and governments but is particularly acute for European institutions.The Union is often experienced as Dir 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Dir 85/337/EEC and 96/61/ECstatement of the Commission [2003] OJ L156/17 et seq.; see Partsch 1998 NJW 2559 et seq; similar also Wegener Umweltinformationsgesetz § 1 par 14; Kloepfer Informationsrecht 404; Worm Umweltinformationsrichtlinie 10; Partsch 1998 NJW 2559; recital 10 of the preamble to the Aarhus Convention; Home Office of the State North Rhine-Westfalia (ed) Treaty of Lisbon and of the Charter of Fundamental Rights have so far not been able to play a significant role in judicial findings of the European Court of Justice.But the Court has already been confronted with a great number of cases dealing with the application of the transparency principle in environmental matters 14 as well 14 Dir 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC [2003] OJ L41/26 et seq.; (COD) [2001] OJ C154 E P. 0123 -0128, p. 2 et seq.; Art 7 of Council Directive 90/220/EEC of 23/04/1990 on the deliberate release into the environment of genetically modified organisms [1990] OJ L 117, p. 18; Case C-552/07 PER / PELJ 2010(13)1 access to his or her file as a necessary prerequisite for making effective use of the right of defence.18Theobligation to give reasons, being explicitly embodied in the Treaty, has in addition been recognized by the Court as a general principle of European Community law, hereby obliging the administrations of the Member States to give reasons for all decisions taken in application of Community law.The Court held in particular that the failure to (ECJ); Case 17/74 Transocean Marine Paint Association v Commission [1974] ECR 1063, 1080 par 15 (ECJ); Case 85/76 Hoffmann-La-Roche & Co AG v Commission [1979] ECR 00461, 511, par 9, 11 (ECJ); Joined Cases 46/87 and 227/88 Hoechst AG v 20In addition to the evolution of these general principles common to all European administrative law systems, the European Court of First Instance already had the chance to associate the right of every person to have his or her affairs handled within a reasonable time by a European institution with the right to sound administration.21Later,thesameEuropean Tribunal recognised the need to act within a reasonable time in conducting administrative proceedings relating to competition policy as a general principle of Community law whose infringement would justify the annulment of the respective decision in so far as it also constituted an infringement of the rights of defence.22Thesubjective rights of individuals concerned by administrative proceedings are complemented by the liability of the European institutions guaranteed in accordance with the general principles common to the laws of the Member States 23 for damages caused by the institutions.In a recent judgement delivered on July 16, 2009, the Court held that an infringement of the obligation 19 Case C-367/95 Commission v Sytraval [1998] ECR I-1719, 1770, par 63 (ECJ).20 Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council (not reported yet), par 334 et seq 351.to act within a reasonable time is also incumbent on the judiciary and may, if established, justify an action for liability against the European Union, even for immaterial damages.24Whilestrengthening the procedural rights of individuals concerned with administrative proceedings, the Court has not neglected its responsibility for the well functioning of the European institutions.But in doing so, the Court never lost sight of its principal objective to guarantee the rationality of all administrative action of the European institutions, which is the utmost objective of the rule of law.Again, this mission is crucial for the supranational action of access to documents simply ensures that the long-standing prejudice of Brussels bureaucracy being alienated from the ordinary citizen, is proven incompatible with the legal reality of the obligation to implement a transparent administration which is devoted to the interest of the European citizens.The quest for transparency makes it perfectly clear that the citizens of the European Union do not have to consider themselves as mere subordinates to the law and the politics of the European Union, but can proudly perceive themselves as active citizens, as real "citoyens" who are confronting the European institutions on equal terms.It is therefore evident that the quest for good governance in Europe constitutes an important subject which will not be of minor importance for the enduring success of the European integration.
the system of liability for the breach of European Community law to the judiciary 31 and to emphasise that an infringement of the obligation to act within a reasonable time is as well incumbent on the judiciary and may, if established, justify an action for liability against the European Union, even for immaterial damages.32Buthow can we ensure that the Supreme Courts and Constitutional Courts live up to their respective obligation of good governance?Since constitutions are very difficult to amend, the power of Constitutional Courts is considerable.The same is, a forteriori, true for the European Court of Justice since the substance of the Treaties proves to be hardly modifiable in practise.Of course there is an ongoing evolution in Europe and around the world towards an increasing openness for comparative legal reasoning and discourse.I am well aware that the Constitution of South Africa, 1996 is particularly advanced in that respect.