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Can a Judiciary be Accountable without compromising its Independence?

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)

General Principles : Rule of Law


Judicial Independence Necessary for Rule of Law in a Democracy:
Legislature- Parliament makes the laws Government- GON administers the laws Judiciary interprets the laws, including constitutional laws

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

to be democratically responsive to society see next slides

in particular, hard to balance need to:


remove undue political influence (independence), but retain appropriate political participation (democratic accountability)

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

1. Electing judges (US)


little appetite for elected judiciary. favours accountability. risk of politicization and other abuses.

2. Judges themselves appoint (India)


where judges control appointments (either formally or informally). maximizes independence. but little accountability. tends to less diversity.

Political institutions appoint


many different variants in some, a single institution appoints (e.g. Parliament/executive)
e.g. Canada, UK, historically; Germany

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

Judicial appointments commission (JAC) (e.g. South Africa)


increasingly popular approach world wide tries to balance independence and accountability:
an outside commission identifies candidates for appointment usually leaving final appointment to accountable politicians

JAC members typically drawn from range of groups:


judges, lawyers, politicians, lay persons, others government / politicians participate but do not control JAC

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.

Judicial appointments under concept papers


consider the proposed judicial appointments procedure under the concept papers

Requirements for Independence and Accountability

Requirements for Independence and Accountability


The role and responsibility of judges and their accountability for their conduct. The Canadian formulation of the constitutional requirements for judicial independence :
Financial Security Security of Tenure Direction of Judicial Administration

Why each of these requirements are necessary for fulfilling the judicial role and general limitations on each of them.

Judicial Compensation

Judicial pay & judicial independence linked


Executive could directly or subtly influence judges by manipulating compensation Compensation should be set by law, free from arbitrary interference Level of pay:
sufficiently adequate to attract quality candidates, and avoid temptation

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.

Possible independent mechanisms


An independent Commission
between judiciary and both Executive and Parliament to depoliticize fixing of salaries, pensions recommends changes to remuneration non-binding, but Government not to set aside lightly pros and cons of such a model

Pegging judicial compensation to other salaries Binding arbitration Yearly adjustments, using an index Pros and cons of these

Reducing judicial compensation


is it ever possible to reduce judicial compensation?

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

Other aspects of accountability


performance / error correction can address on appeal efficiency can address under courts administration integrity / corruption especially challenging issue:
global problem; numerous international studies broad acknowledgement problem complex no single, universal answer must diagnose local problem before prescribing cure

Corruption (continued)
multi-pronged attack required for success; no quick fix.

elements of successful initiatives have sometimes included:


independent appointment of judges adequate judicial compensation transparency: public trials, oral argument, juries, media better information systems: reasons, computerized records simplifying rules, procedures; clear standards collecting / publishing data on court performance special anti-corruption courts (Indonesia, Jamaica) complaints, disciplinary procedures

re-appointment or replacement particularly sensitive issue:


risks appearance of purge must be principled, follow due process Bosnia, Kenya

Courts Administration

The Issue, a Canadian perspective


who should administer the court system: the government or the judiciary? in the past, courts distinguished adjudication from administration
judges responsible for the former administration controlled by Executive, which reported to Legislature

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

The judges concerns


courts feel left out when important decisions affecting them are made. expecting Attorney General to be their spokesperson creates a conflict. old methods for protecting their interests less effective than before. they believe would be their advantage to have more control over budgets. see all this as important element of judicial independence.

Current state of this debate


provincial, federal governments giving more responsibility to courts judges proposing even greater judicial role in courts administration a range of options: they do not necessarily ask for complete control courts in US already have much greater administrative independence ultimate question unresolved to date:
how to reconcile judicial autonomy in budget making, with principle that Ministers accountable to Parliament for public monies