Professional Documents
Culture Documents
By: Mr. John H. Sims and Prof. Ed Ratushny Centre for Constitutional Dialogue 21 June 2010
Outline
General Principles : Rule of Law (Ratushny) Judicial Appointments; Accountability, Part I (Sims) Requirements for Independence and Accountability (Ratushny) Financial Security (Sims) Security of Tenure (Ratushny) Accountability Part II (Sims) Direction of Judicial Administration (Sims)
Judicial Independence is recognized as a necessary fundamental principle both internationally and in the new Nepal Constitution. Judicial independence is necessary for the public to have confidence in the judiciary, in the Rule of Law and in all public institutions. Each of the three institutions of the state must respect the roles and responsibilities of the others. Public confidence in one institution enhances confidence in the other two institutions.
Judicial Appointments
Judicial Appointments
Judicial Appointments The Challenge how judges appointed crucial for ensuring judicial independence accountability, transparency, diversity also important for legitimacy
accountability has several aspects:
integrity / corruption performance / error correction efficiency these 3 dealt with below
many different appointment mechanisms world wide no single best approach, but some better than others
Appointment Models
four basic appointment models: judges elected judiciary controls appointments political actors appoint judicial appointments commission much variation within each model hybrids each has strengths / weaknesses
in some, two or more must cooperate (e.g. US President & Senate) can be designed to prevent a single institute from dominating favours accountability over independence risks politicization
many different forms of JAC basic model can be adapted to local circumstances
role to nominate or also to appoint? make-up of JAC changing the mix may affect outcomes
Transparency, Diversity
independence and accountability not enough to ensure legitimacy. transparency and diversity also important. ways of achieving transparency. diversity as a value in appointments.
Why each of these requirements are necessary for fulfilling the judicial role and general limitations on each of them.
Judicial Compensation
Establishing compensation:
as important as actual level unseemly for judges to bargain directly with government better to set remuneration independently a variety of techniques used or considered.
Pegging judicial compensation to other salaries Binding arbitration Yearly adjustments, using an index Pros and cons of these
Security of Tenure
Security of Tenure
What is Security of Tenure and why is it necessary for Judicial Independence?
What are the Limits of Security of Tenure and how can judges be made accountable for failure to fulfill their duties or for misconduct? What are the features of a system to make judges accountable for complaints of misconduct and how does this process affect public confidence?
Accountability Part II
Corruption (continued)
multi-pronged attack required for success; no quick fix.
Courts Administration
model consistent with principles of accountability in democratic Parliamentary systems responsible Minister answerable to Parliament for spending public monies distinguishing adjudication from administration sometimes difficult recently, more demands by judiciary for control over courts administration