Judicial Accountability Research Articles

A Polish Reform of Judiciality: How to Demand and Bury Judicial Accountability

A Polish Reform of Judiciality: How to Demand and Bury Judicial Accountability

Between the People and the Populists: Safeguarding Judicial Independence in a Changing World

This article examines the impact of social media on the dissemination and influence of populist ideology, as well as the strategies populist movements have employed to erode the independence of the judiciary, including public resistance, constitutional amendments, and the expansion of the judiciary. This article analyzes strategies and solutions designed to preserve and safeguard judicial independence. The in question strategy includes strengthening the legal and institutional framework, cultivating a culture that upholds the supremacy of law, increasing judicial accountability, and encouraging collaborative dialogue between judicial institutions. This paper employs a case study methodology to examine the resistance of the judiciary to populist pressures in South Africa, Colombia, and Indonesia. This article’s conclusion demonstrates that the court faces a dilemma between the importance of maintaining judicial independence from populist interests over legal requirements and the necessity of popular opinion for public legitimacy. In the context of populism, this is a challenge for judicial independence. Therefore, this paper encourages collaboration between academics, practitioners, and policymakers to safeguard judicial independence in an increasingly interconnected and rapidly developing world.

Blue versus red: partisan firm leaders and corporate culture

Abstract This paper documents significant partisan divides across a range of corporate cultural values. Using panel data of 2,424 S&P 1500 firms spanning the period from 2001 to 2018, we find that firms whose top management teams lean toward the Democratic Party exhibit higher cultural values of integrity, teamwork, innovation, respect, and quality, in comparison with firms with executives leaning toward the Republican Party. In addition, we find that the partisan gap diminishes when firms have less entrenched management or locate in states with stronger judicial accountability. Our findings lend support to earlier research suggesting that leader characteristics are associated with corporate culture.

Judicial Accountability: A Comparative Note on India and Malaysia

India and Malaysia are the countries having similar characteristics of the political system. The self-governed model of Judicial Accountability has been given impetus importance in Malaysia contrary to the Indian legal system. The Judicial Standards and Accountability Bill 2012 being a replica of the Judges Enquiry (Amendment) Bill 2005, has been pending before the Parliament for many years. On the other hand, the Malaysian legal system adopted the judicial standards way back in 1986. Inordinate delay on the part of the Indian legal system seems to be a major setback for the image of the biggest democratic country. The severe allegations against judges of the Supreme Court of India and High Courts and aborted efforts of the Parliament in ensuring judicial accountability have inspired the author to take up a comparative study of the topic. The paper starts with a cursory view of the judicial system in India and Malaysia followed by a conceptual analysis of judicial accountability. It outlines the status of judicial accountability as contemplated under the constitutional and legal framework of both countries. It concludes by identifying the similarities, dissimilarities, and best practices of both systems in the context of ideal practices required for judicial accountability.

Constitutional Court Decisions on the Judicial Independence of Other Indonesian Courts

Judicial independence is a foundational principle of the Indonesian Constitution. It guarantees the independence of all Indonesian courts. However, most of the cases the Constitutional Court has handled relating to judicial independence have concerned the Constitutional Court’s own independence, focusing, for example, on issues of judicial tenure and terms. This paper examines the handful of Constitutional Court decisions about the judicial independence of other courts and judges in Indonesia – that is, non-constitutional courts and judges. It examines what the Constitutional Court has said about judicial independence in relation to these other courts. It then considers whether, by emphasising (perhaps overly) strict observance of judicial independence, theseConstitutional Court decisions compromise effective judicial accountability and administration.

The Invisible Safeguards of Judicial Independence in the Israeli Judiciary

AbstractThe Israeli democracy regulates the operation of the judiciary through the constraints of formal rules that check the political actors, the individual judges, and the judiciary. Basic laws, laws and regulations prescribe the operation of every subject. Yet beyond these formal rules, informal institutions and practices are sometimes equally important in the operation of the judiciary, as they are in any constitutional system. In Israel, some of these informal institutions are crucial for the flourishing of democracy and the rule of law, through their protection of judicial independence from external political interference. The imminent possibility that political actors may set some of them aside is nothing less than a potential transformation in the constitutional order. Over the past few decades, judges and court administrators have introduced other internal informal institutions in the administration of the Israeli Judiciary, which qualify formal judicial accountability mechanisms in ways that may prove to be detrimental to democratic principles. This article discusses informal institutions that are important in the operation of the Israeli judiciary, separating the former external kind that are conducive to the rule of law—such as the illegitimacy of political and partisan considerations in judicial appointments—and whose disregard may signal democratic decay from the latter internal kind that may prove detrimental to the courts—such as opaquely changing who is responsible for court administration. Lastly, the political attempt to change informal institutions, detailed herein, can be seen as a harbinger of the current attempt to change formal institutions in the constitutional status of the judiciary in Israel.

Judicial Independence vs Parliamentary Supremacy: Reignition of debate vis-à-vis Israel and India

Huge demonstrations are going on in State of Israel against the Judicial reforms being proposed by the PM Netanyahu led Government.1 In India also war of words is ongoing between senior government functionaries and Higher Judiciary over the collegium process and its impact. Per se the healthy discussion and negotiation between different organs of the government is not bad but it should not be with an aim to reduce their importance. Judicial independence is the hallmark of Rule of Law in any democracy.2 It only protects individuals’ liberty but also keeps a check on the state excesses or biasness. Indisputably, the parliament has an exclusive right of law making but the moot question remain whether power to amend includes power to destroy. There must be checks and balances on all the three organs of the government. Even Judiciary cannot be allowed free run without any accountability and reforms must keep going but any Judicial reforms cannot be allowed to strike at the root of Judicial independence itself as it would destroy the institution. In this paper I have tried to explain the current situation in Israel where the proposed reforms being brought in the name of Judicial accountability and Judicial reform threaten the very concept of judicial independence. It strikes at the very basic theorem of separation of Power and would promote autocracy and dictatorship in the long run. As Israel is a parliamentary democracy, the executive heads already influence the decisions of the Knesset in a major way & if they get to have the same in Judicial appointment then the political leaders ruling the State of Israel will have all the powers with very less accountability. In comparison the situation in India is different. While verbal arguments are going on between Judiciary and Executive it is more or less limited to Judicial appointment with others spheres of Judicial independence like Judicial Review not part of the public debate. The paper also argues about the need for Judicial independence in a democracy and the Power of Parliament to amend is not absolute and unlimited.

EVOLUTION OF INDONESIAN JUDICIARY: FROM STRUGGLE OF INDEPENDENCE TO CRISIS OF ACCOUNTABILITY

The history of the Indonesian judiciary includes elements of irony. During authoritarian rule under Sukarno's era (1959–1966) and Suharto's era (1966–1998), judges put up long struggles to gain judicial independence. However, after amendments to the 1945 Constitution in 2001–2002, when the judiciary gained independence, the judiciary’s reputation became marred with high-profile corruption cases and ethical violations. Therefore, this study uses normative legal research methods. The researchers found that the history of the Indonesian judiciary evolved from a crisis of independence in the authoritarian era to a crisis of accountability in the era of democratic transition. The two authoritarian governments limited the judiciary’s independence through legal provisions. Unfortunately, despite the positive developments from gaining judicial independence, the Indonesian judiciary suffers from an accountability crisis, as seen through the arrests of several judges for bribery. This crisis of judicial accountability has resulted in a distrust of judges within Indonesian society.

Diplomatic Privileges and Immunities between Internal law and International Law (Comparative Study)

Objectives: The study aimed, through an understanding of diplomatic immunities and privileges in the context of the relationship between domestic law and international law, to explain the commitment of states to international law in order to achieve their interests, which is not considered an encroachment on the sovereignty of the state.
 Methods: The study used the legal, systems and comparative methods to answer the questions and test the hypothesis, on the basis that the hypothesis says that there is a correlation between diplomatic immunities and privileges and sovereignty.
 Results: The study showed that the international immunities and privileges occupy one of the most important advanced position for the existing lawsuits between the Juridical, legal political disputes, and the social and serenity importance. Many studies and elaborations have addressed this issue and introduced different theories, that creates packages of legal disputes on the background of the sovereignty concepts,security, stability and independence from one side, and on the other side, the states international obligations, and its interest to live peacefully and cooperating with other countries.
 Conclusion: The study concluded that immunizing the diplomatic envoy from judicial accountability and exempting him from sanctions is the basis of diplomatic immunities and privileges. The issue the state gives up some of its sovereignty becomes a matter of interest and scrutiny. Therefore, international law hastened in light of the growing relations to explain these immunities and privileges and assign them to Legal grounds agreed upon by states that require more cooperation and disregard for absolute sovereignty.

Examining the Impact of Jail Sanctions on Recidivism for Domestic Violence Probationers.

There has been a growth of domestic violence courts aimed at increasing offender accountability and victim safety. Although research has examined the effectiveness of these courts compared to typical court processing on recidivism, little is known about the mechanism of judicial accountability. Specifically, judicial review hearings, in which judges have discretion on whether and how to sanction for noncompliance, are common in these courts. This study examines whether incarceration sanctions for noncompliance affect recidivism among a sample of 347 probation review hearings in a Midwestern domestic violence court. Using logistic regression and survival analysis, we find that jail sanctions do not impact likelihood of recidivating but do result in significantly shorter periods of time until recidivating. The findings also signify the importance of addressing substance abuse issues in the prevention of recidivism. Further implications of the findings are discussed.

Greening central banking in the EU: closing the judicial accountability gap

Greening central banking in the EU: closing the judicial accountability gap

Truth and reparations: A perpetual challenge for the marginalized in Peru

AbstractThe Peruvian Truth and Reconciliation Commission (Comisión de la Verdad; CVR) is considered one of the most comprehensive in Latin America. Peru set forth a plan for reparations to address the gross inequalities underlying the war, yet nearly twenty years since the CVR report was submitted, extreme discrimination of victims undergirds the systemic challenges that impede the allocation of due resources and recognition of rights for war survivors. This article draws from a larger case study with a female war survivor from the Department of Ayacucho. By highlighting the challenges survivors face in accessing reparations, this research illustrates how a lack of judicial accountability, scarcity of resources applied to reparations, politicized narrative surrounding victimhood, and failure to adequately reconcile with the past, exacerbates marginalization that prompted the war and undermines the CVR's goal of transitional justice.

Pragmatic Markers in an Appellate Court Judgment: General Brigadier, A.M Adekunle (Rtd) V. Rockview

Purpose: Linguistics is the scientific study of language; however its meta-implications in Appellate court judgment is yet to be given as much scholarly attention as other legal genres. Most studies on courtroom and particularly court judgement have focused on stylistic analysis, speech act and genre analysis; consequently studies on non-propositional meanings are still lean. Therefore, this study in the bid to further describe language of judges and account for how language is organised to achieve justice, investigated the nature and function pragmatic markers in a select Nigerian Appellate Court Judgement.
 Methodology: Using a Purposive random sampling technique, the study selected a property case judgement titled General Brigadier, A.M Adekunle (Rtd) V. Rockview from the Nigerian Weekly Law Reports (1999-2004). It adopted Fraser’s 1996 Pragmatic Marker Theory and mixed method of analysis –The quantitative was used in analysing the frequencies of the types of pragmatic markers employed by the judge while pragmatic imports of the markers in the ApCJ were discussed qualitatively.
 Findings: These analyses revealed that the selected ApCJ, though linguistic, is also replete with the four variants of pragmatic markers: Basic (44.9% marker), commentary (37.8%) and discourse markers (10.35%) and parallel (3.45%) identified by Fraser’s .The appellate judge used the basic markers particularly (the declarative markers) to build up the fact of the case and signal his opinions about them and the imperative markers were verdict pronounced. Commentary markers with (37.8%) were the second class of pragmatic marker observed in the (ApCJ). It comprised the following : Hearsay (3.45%), evidential (13.8%), contrastive markers (3.45%) assessment markers (13.7%) and emphasis marker (6.9%).The judge used more of evidential markers and assessment to predicate his judicial argumentation, implicitly justify the trial court’s judgement and thereby build logical bases for partly disallowing the appeal .
 Recommendation: The language of ApCJs is laden with pragmatic markers which serve essentially to build up and issues of the case, provide judicial argumentation and ultimately construct the verdicts. Pragmatic makers are greatly exploited by the appellate judge for effective adjudication. Therefore applied linguists and Forensic experts should critically investigate them to ascertain the correctness of the ratio dicidendi and the judge’s obiter dictum -crucial variables for establishing judicial accountability and fairness.

The Theory of Accountability and Freedom in the View of the Judge, Abdul-Jabbar

According to Judge Abdul-Jabbar, the theory of accountability and freedom falls within the origin of the second of the Islamic five fundamentals agreed upon by the Mu’tazilites in their theological doctrine, justice. Without acknowledging the two principles of accountability and freedom, justice cannot be addressed as Judge Abdul-Jabbar believes, who goes furthers and finds accountability the reason of man creation. Man is divided into mental accountability and judicial accountability, and the former takes precedence over the latter. Therefore, the human being is authorized even before the divine message, because the message comes in supporting and detailing what the mind decides of duties and rights. Man’s freedom is among the rights that are determined in the mind and acknowledged by the law. Then it is not possible to talk about divine justice without proving accountability and freedom and that accountability is not true without identifying freedom for man’s action. Thus, man becomes responsible for his voluntary actions, and in the end reward and punishment are truly in accordance with divine justice.

How can universities promote academic freedom? Insights from the front line of the gender wars

AbstractThe UK Government's Higher Education (Freedom of Speech) Bill is currently progressing through Parliament. The bill is designed to strengthen free speech and academic freedom in higher education, in response to what former Education Secretary Gavin Williamson describes as ‘the rise of intolerance and cancel culture upon our campuses’. But is there really a crisis of academic freedom in British universities?To see that there is, say Judith Suissa and Alice Sullivan, we need only look at the contemporary reality of suppression of debate on sex and gender. The evidence they catalogue of suppression of research, of blacklisting, harassment and smear campaigns, of no‐platforming, disinvitations and shutting down of events, is incontrovertible. The recent experience of scholars and students wishing to discuss the material reality and political salience of sex makes complacency about academic freedom a luxury we cannot afford.Suissa and Sullivan set out a powerful argument for the role of academic freedom in pursuing truth within the academy and developing democracy beyond it. They effectively counter attempts to narrow the scope of academic freedom so as to render it compatible with no‐platforming. And they lay out a series of practical steps administrators can take to ensure that universities are places where an expansive and pluralistic intellectual climate prevails.This is a timely and compelling intervention in a vexed but urgent public debate. For their clear‐sighted diagnosis of where and how academic freedom has been eroded in our universities, and for their judicious account of what must be done to rebuild it, Suissa and Sullivan deserve a wide and attentive hearing.

Are the Fingerprints of WTO Staff on Panel Rulings a Problem? A Reply to Joost Pauwelyn and Krzysztof Pelc

Abstract By employing stylometric data analysis, Joost Pauwelyn and Krzysztof Pelc underpin the narrative of a power-mongering World Trade Organization (WTO) Secretariat. As ‘holder of the pen’ in writing WTO rulings, the Secretariat would absorb control over WTO adjudicators and the dispute settlement procedure. This reply disagrees. First, with stylometric analysis informing style rather than substance, this technique does not encrypt the intellectual ownership of WTO rulings, nor does it offer account of the deliberation between bureaucrats and adjudicators. Second, with public power typically deriving legitimacy from both political or judicial accountability as well as rational and de-politicized bureaucracies, an assertive WTO Secretariat under the direction of panellists is normatively desirable. Third, a WTO Secretariat pursuing consistent application of the growing WTO acquis does not impair the members-driven adjudication process.

Accountable for a Lifetime: Reforms in Prosecutorial Accountability in China

Abstract The judicial accountability reform in China introduced the concept of lifelong accountability, which requires prosecutors to be responsible for the cases they handle by tying their reputation and career prospects to the quality of the cases, regardless of whether they still hold those positions. To explain this lifelong accountability, this article analyzes key issues surrounding prosecutorial accountability in the Chinese context, critically examining the accountability system before the reform and the transformations brought about by the new accountability regime. It argues that although lifelong accountability is expected to be a deterrent to prosecutorial misconduct, the feasibility of the accountability mechanism is subject to doubt. The reform tries to form collective responsibility, enabling frontline prosecutors to exercise greater autonomy. However, it has not led to a paradigm shift from the predominantly bureaucratic model to prosecutorial professionalism, which demonstrates profound distrust in the prosecutor’s judgment at a fundamental level.

Research on Legal Regulations of Information Automated Decision-making from the Perspective of Private Law

Information automated decision-making has been widely applied and developed in private field. Being in the trend of a mighty rise, it brings convenience to life, meanwhile its own nature attribute of the “black box” has triggered various legal challenges which are increasingly prominent, such as the issues of transparency, discrimination and interpretation power. The legal regulations of automatic information decision-making from the perspective of private law need to analyze the causes of legal challenges and the limitations of relevant legal regulations. Exploring the root causes of interest conflicts and putting forward suggestions on the right structure of data subjects and the definition of obligations of decision-making subjects, as well as being based on the status quo of private law of information automated decision-making in China, this paper proposes legal regulations from the perspectives of legislation, institutional framework, multiple governance mechanism and judicial accountability.

Judicial conduct regulation: do in-house mechanisms in India uphold judicial Independence and effectively enforce judicial accountability?

ABSTRACT In India, judicial discipline is exclusively enforced by the judiciary through in-house mechanisms, except for the constitutional removal procedure. The founding justification for in-house mechanisms is that they are indispensable to uphold judicial independence. In this milieu, the paper attempts to answer the following question: do in-house mechanisms in India uphold judicial independence and effectively enforce judicial conduct? The study, by analysing quantitative and qualitative data from 110 subject experts (judges, lawyers, and academics), offers an initial assessment of the implications of in-house mechanisms on judicial independence and judicial conduct regulation in India. The study lays special emphasis on the efficacy of in-house mechanisms in upholding “individual” and “internal” judicial independence. It also assesses the effectiveness of in-house mechanisms in enforcing judicial conduct. It concludes that in-house mechanisms, for both higher and subordinate judiciary, undermine individual and internal judicial independence. They are also ineffective in enforcing judicial conduct.

Opening Judicial Decisions and Judicial Accountability

1987년 민주화 이후 정치, 경제, 사회적 영역에서 권위주의 과거청산을 통한 민주적 개혁이 진행되었던 것과는 대조적으로 사법부는 권위주의시기에 형성된 제도와 관행이 민주화 이후에도 지속되어 재판에 대한 국민적 불신이 높았다. 이러한 문제해결을 위해서 사법부 역시 탈권위주의를 위한 노력과 함께 재판에 대한 공정성과 투명성 확보를 위해 판결문 공개의 확대, 국민참여재판 제도 도입, 양형위원회 제도 도입 등의 노력이 진행되었다. 이러한 배경에서 본 연구는 민주화 이후 판결문 공개 확대를 통해 사법부의 책무성을 확보하기 위한 논의 과정을 분석하고 제도변화의 결과를 평가하는 것을 목적으로 한다. 이를 위해서 사법부 책무성의 개념을 이론적으로 검토하고, 판결문 공개 확대의 취지와 배경을 살펴본 후, 판결문 공개 확대를 위한 논의과정에서 나타난 쟁점을 분석하고, 그 성과와 한계를 정리한다.