Abstract
AbstractThis Article explores the similarities between the principles which guide the judiciary nowadays and those typical for the functioning of the Communist justice system, particularly the susceptibility to obedience to the requests, orders, or meeting anticipations. The habitus of the judges typical for the authoritarian regime has persisted until these days and was the main reason for the judicial corruption revealed in the “Threema scandal.” This Article’s argument does not connect the judiciary’s dependency to the Communist legacy embodied in members of the judiciary who served before 1989 and are active today. Still, the argument presumes that the Communist heritage is a key to understanding the current situation. The past heritage is hidden in the habitus of the agents or members of the judiciary. This habitus may be unconscious yet defining for the behavior of the agents. The Article aims to identify which continuities of the judicial habitus are apparent in the current judiciary. To demonstrate changes in the position of the judiciary, it presents a thesis of the development of the judiciary from an instrument of the governing party in maintaining a homogenous and subordinated society to the current situation of the Slovak judiciary, defined as a crisis of mental independence resulting in inappropriate behavior and corruption.
Highlights
To demonstrate changes in the position of the judiciary, it presents a thesis of the development of the judiciary from an instrument of the governing party in maintaining a homogenous and subordinated society to the current situation of the Slovak judiciary, defined as a crisis of mental independence resulting in inappropriate behavior and corruption
John Ferejohn writes that judicial independence is less a consequence of institutional design and more, “a consequence of self-restraint by powerful groups.”63 Michal Bobek claims, “[t]he independence of the judiciary is, not about the institutions, but about the judicial mentality and self-image.”64 He writes further, “[i]t does not matter who the powerful groups are, whether political branches or judges, there will always be a certain capacity to influence the judiciary and its composition.”65 Though, what should be done, if powerful groups do not feel restricted and judges are immersed in their everyday life of informal practice that does not seem controversial to them?. In such a situation, focusing on the institutional structure of the judiciary may be a weak method of determining independence, for “to check mechanically whether or not new laws are passed or whether a new judicial council is put in place is incomparably easier than to engage in complex assessment of judicial self-image, mentality, and ideology.”66 Samuel Spáč concludes that with the existence of a normative framework in place in Slovakia: The Slovak experience shows that the transfer of powers regarding the professional careers of judges from politicians to judges themselves is not a guarantee of judicial independence
Over time these informal institutions become stronger and take over the rules of judicial life. These informal institutions can hinder change even after the formal rules are adapted; “when judicial independence has been low in a country due to the presence of co-optation, clientelism, and corruption, it is highly unlikely that reforms will immediately improve the degree of judicial independence.”79 A habitus of informal loyalties leads to informal networks80 from which political actors and involved judges can benefit
Summary
The fact that so many judges served private demands and commands was unexpected because the Slovak judiciary’s institutional framework is based on, and shows adherence to, all the significant international recommendations designed to safeguard judicial independence. In such a situation, focusing on the institutional structure of the judiciary may be a weak method of determining independence, for “to check mechanically whether or not new laws are passed or whether a new judicial council is put in place is incomparably easier than to engage in complex assessment of judicial self-image, mentality, and ideology.” Samuel Spáč concludes that with the existence of a normative framework in place in Slovakia: The Slovak experience shows that the transfer of powers regarding the professional careers of judges from politicians to judges themselves is not a guarantee of judicial independence. The problem of informal practices contradicting formal rules is more emergent in countries where the courts face low trust or negative perception by the public.74 In such countries, informal practices in the judiciary occur in the form of co-optation and clientelism, which can lead to sophisticated networks of judicial corruption and the decay of judicial independence.. These informal institutions can hinder change even after the formal rules are adapted; “when judicial independence has been low in a country due to the presence of co-optation, clientelism, and corruption, it is highly unlikely that reforms will immediately improve the degree of judicial independence.” A habitus of informal loyalties leads to informal networks from which political actors and involved judges can benefit
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