can a judiciary be accountable...ccd_ 21 june.eng

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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


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Outline

General Principles : Rule of Law (Ratushny)

Judicial Appointments; Accountability, Part I(Sims)

Requirements for Independence andAccountability (Ratushny)

Financial Security (Sims)

Security of Tenure (Ratushny)

Accountability Part II (Sims)

Direction of Judicial Administration (Sims)


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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 necessaryfundamental principle both internationally and in the new

Nepal Constitution.

Judicial independence is necessary for the public to haveconfidence 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 confidencein one institution enhances confidence in the other two

institutions.


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Judicial Appointments


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Judicial AppointmentsJudicial AppointmentsThe Challenge

how judges appointed crucial for ensuring judicialindependence

accountability, transparency, diversity also important forlegitimacy accountability has several aspects:

integrity / corruption

performance / error correction

efficiencythese 3 dealt with below

to be democratically responsive to societysee next slides

in particular, hard to balance need to: remove undue political influence (independence), but

retain appropriate political participation (democraticaccountability)

many different appointment mechanisms world wide

no single best approach, but some better than others


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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


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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 orinformally).

maximizes independence. but little accountability.

tends to less diversity.


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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 fromdominating

favours accountability over independence

risks politicization


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Judicial appointments commission

(JAC) (e.g. South Africa)

increasingly popular approach world wide tries to balance independence and accountability:

an outside commission identifies candidates forappointment

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

roleto nominate or also to appoint?

make-up of JACchanging the mix may affect outcomes


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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.


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Judicial appointments under concept

papers

consider the proposed judicial appointments

procedure under the concept papers


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Requirements for Independence and

Accountability


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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.


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Judicial Compensation


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Judicial pay & judicial independence

linked

Executive could directly or subtly influence judges bymanipulating compensation

Compensation should be set by law, free from arbitraryinterference

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.


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Possible independent mechanisms

An independent Commissionbetween 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


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Reducing judicial compensation

is it ever possible to reduce judicial

compensation?


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Security of Tenure


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Security of Tenure

What is Security of Tenure and why is it necessaryfor Judicial Independence?

What are the Limits of Security of Tenure and howcan judges be made accountable for failure tofulfill their duties or for misconduct?

What are the features of a system to make judgesaccountable for complaints of misconduct and howdoes this process affect public confidence?


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Accountability Part II


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Other aspects of accountability

performance / error correctioncan address onappeal

efficiencycan address under courts

administration integrity / corruptionespecially challenging

issue:

global problem; numerous international studiesbroad acknowledgement problem complex

no single, universal answer

must diagnose local problem before prescribing cure


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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


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Courts Administration


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The Issue, a Canadian perspective

who should administer the court system: the government orthe judiciary?

in the past, courts distinguished adjudication fromadministration judges responsible for the former

administration controlled by Executive, which reported toLegislature

model consistent with principles of accountability indemocratic 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 courtsadministration


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The judges concerns

courts feel left out when important decisionsaffecting 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 havemore control over budgets.

see all this as important element of judicialindependence.


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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 forcomplete control

courts in US already have much greateradministrative independence

ultimate question unresolved to date: how to reconcile judicial autonomy in budget making,

with

principle that Ministers accountable to Parliament forpublic monies

can a judiciary be accountable...ccd_ 21 june.eng

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