Judicial Accountability Research Articles

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.

Of Judge Quota and Judicial Autonomy: An Enduring Professionalization Project in China

AbstractThis article presents the findings of original research on “judge quota” reform. The reform's agenda was essentially aimed at professionalization: by edging out a given percentage of judges, only the better qualified judges would be re-appointed to create a more professionalized judiciary. A key component of the reform was to reduce the level and the intensity of both political and bureaucratic control over judges in adjudication and to decentralize judicial power to the rank-and-file judges, restoring individualized judging while enhancing judicial accountability. This article critically examines the potential and limits of the judge quota reform in the context of incremental legal reform in a party-state.

Towards a National Strategy for Judicial Accountability: A Critical Review in Jordan

This paper examines the complex relationship between judicial accountability and judicial independence. In order to provide a framework for good governance in the Jordanian judiciary by identifying its main features and shortcomings in its work. The paper describes mechanisms for achieving accountability through various methods of judicial appointment and removal. But more important than these approaches, she says, is the idea of ensuring judicial accountability by insisting that judges are accountable to the law. The experience of the judiciary in Jordan over the past decades has clearly shown that the judicial administration needs a strategic vision based on efficiency, accountability, and integrity. The paper addresses in detail the challenges of judicial administration that need to be addressed through the implementation of a viable national strategy for judicial accountability

Judicial Accountability of Financial Assistance in the Case of Eurozone Debtor Countries

Judicial Accountability of Financial Assistance in the Case of Eurozone Debtor Countries

Judicial Accountability and Transparency in India: Flaws and Road Ahead

In a democratic system judiciary is very important organ for upholding and protecting the rights of the people. Not only an organ of judiciary is required but it is also very essential that this branch of government must be independent in its functioning. Independence is required to ensure the impartiality in decision making process. Without impartiality in the decision making process public cannot witness the sense justice. Along with the independence, judicial accountability and transparency is also necessary. In absence of judicial accountability, transparency and independence; justice will be an illusion for public. Justice is one of the most important objects of a democratic system. Justice is a major goal of law. Justice is very important for flourishing any democratic system because injustice with public ultimately leads to dissatisfaction, disaffection to government or ruler and results in revolt against State. Judicial independence cannot be isolated to the accountability for their work which judges carried out. Judges are also human being and they work under the human fallibilities. Judges cannot be exempted from the institutional supervisory mechanism. Judicial Independence seeks for adopting a proper mechanism for transparency and accountability.

Advancing the Rule of Law and Human Rights Protection through United Nations Mandated Mechanisms

Over the past fifteen years, the international community has increasingly relied upon United Nations mandated mechanisms comprising commissions of inquiry, fact- finding missions, and investigations to help address gross violations of human rights and the often blatant disregard for the rule of law during periods of civil unrest, conflict, and post-conflict contexts. The primary reason for why this approach has been preferred centres upon the fact that achieving accountability through internationally mandated tribunals and prosecutions is not only difficult to realize but further complicated due to realpolitik permeating among relevant international decision- making structures. For example, to activate meaningful judicial accountability at the international level, agreement amongst the highest echelons of the United Nations vis- a- vis a Security Council resolution is required to mandate an accountability mechanism. Indeed, even a referral to the permanent International Criminal Court underpinned by the Rome Statute requires a Security Council referral for non- State parties. The complexity of activating these measures, however, has served to ensure the continuation of numerous protracted armed conflicts – characterized by the perpetration of atrocity crimes, violations of international humanitarian law, and violations and abuses of human rights – to the detriment of millions of civilians worldwide. This contribution finds that the Commissions of Inquiry on Syria and Libya have been able to advance the rule of law and the protection of human rights by investigating and reporting publicly on findings by all parties to these respective conflicts, in particular on atrocity crimes, violations of international humanitarian law, and violations and abuses of human rights perpetrated by non- State actors. Both Commissions have taken similar positions on the application of human rights to non- State actors, in that non- State actors that cannot formally become parties to international human rights treaties must nevertheless respect the fundamental human rights of persons in areas where such actors exercise de facto control. The contribution continues by exploring the roles of the Commissions of Inquiry for Syria and Libya in the general quest for prevention: i.e., can the establishment of these mechanisms deter belligerents from perpetrating abuses of human rights and disregarding the rule of law? The article argues that if UN- mandated mechanisms – including commissions of inquiry, fact- finding missions, and investigations – are well supported, especially when concerned States grant such bodies protected access on the ground, they can significantly act as a deterrent and contribute to the respect for human rights and the rule of law. This may be achieved particularly through their cooperation and sharing with accountability bodies and the documentation and preservation of evidence collected.

Political institutions and academic freedom: evidence from across the world

There is scant systematic empirical evidence on what explains variation in academic freedom. Making use of a new indicator and panel data covering 64 countries 1960–2017, we investigate how de facto academic freedom is affected by, in particular, political institutions. We find that moving to electoral democracy is positive, as is moving to electoral autocracy from other autocratic systems, suggesting the importance of elections. Communism has a strongly detrimental effect. Legislatures that are bicameral are associated with more academic freedom, while legislatures that become more diverse and more ideologically to the right also seem to stimulate this type of freedom. Presidentialism and coups do not appear to matter much, while more proportional electoral systems strengthen academic freedom. More judicial accountability stimulates academic freedom, and richer countries experience more of it. The results suggest that the political sphere exerts a clear but complex influence on the degree to which scholarly activities are free.

The Problematic of Judicial Accountability

Judicial officers are critical actors in the operation of the justice system. Because of the powers inherent in this role, protections for judicial independence and protections against judicial misconduct are equally essential elements in the design and operation of the justice system. Judicial self-regulation has been the primary arrangement for responding to substantiated allegations of misconduct that is deemed insufficient to warrant referral to parliament for consideration of removal from office. Reflecting on the relatively recent performance of systems and processes in responding to alleged judicial misbehaviour, this article seeks to foster discussion on the best means for achieving the balance between the power of the position and accountability for its exercise.

Judicial Accountability and Racial Disparity in Criminal Appeals

Existing research indicates that retention through election induces larger effects on judicial votes in criminal cases than retention through appointment. Yet such research has addressed neither case selection effects across retention institutions nor heterogeneous treatment effects by defendants’ and judges’ race. Leveraging the unique retention institutions governing New York State’s intermediate appellate judges, we report the first within-justice estimates of the effects of reelection and reappointment incentives on judicial votes in criminal appeals. We find that impending judicial reappointment induces a 49–52 percent within-justice decrease in prodefendant votes in appeals involving Black defendants heard by all-white panels but does not affect votes in other cases. We find no additional effects of impending reelection on appellate justices’ votes in criminal appeals. Our findings suggest the need for greater attention devoted both to potential selection effects and to heterogeneous effects by defendants’ and judges’ race in studies of judicial retention institutions.

Proportionality and procedure of monetary policy-making

Abstract In a highly controversial decision, the German Federal Constitutional Court (FCC) decided that the Public Sector Purchase Program (PSPP) of the European Central Bank (ECB) was ultra vires because it violated the principle of proportionality. The FCC took a procedural approach to proportionality, finding that the ECB had failed to substantiate its balancing assessment. Therefore, the Court considered itself unable to review whether PSPP was substantively proportionate, but announced that it might do so in a future case. The judgment raises the fundamental question of how courts should review monetary policy. The article begins by exploring the role of central banks between independence and accountability. Then, it analyzes, in three steps, what role the principle of proportionality should play in the realm of monetary policy. First, I argue that a traditional substantive balancing test as part of proportionality review is not applicable to monetary policy decisions and highlight the pitfalls of the FCC’s approach. Second, I claim that the imposed procedural “duty to substantiate” is not suitable to promote the democratic accountability of the ECB. Third, I contend that, therefore, the PSPP ruling creates an impetus for strengthening the ECB’s supranational accountability. I suggest that improving the monetary dialogue with the EU Parliament and establishing a comprehensive transparency regime for the ECB could further this goal. Ultimately, I propose that a narrow reading of the PSPP ruling could reconcile the current conflict between the FCC and the ECB and still provide a sufficient level of judicial accountability for the ECB’s monetary policy-making.

Repetitions Towards an End: Judicial Accountability and the Vicissitudes of Justice

ABSTRACT In post-authoritarian regimes official judicial proceedings, specifically criminal trials of crimes against humanity, constitute both end-points and intensely desired goals. In the Argentine context, these proceedings are shaped by numerous repetitions. In this paper I explore the process of justice making, the repetitions of testimonies, of legal processes and of historical antecedents, and I query the different ends that these varied repetitions bring into view. Each of the three ends I describe are facets of Argentinian justice making – a desired and sought out goal in the long-aftermath of the last civil–military dictatorship (1976–1983). But, against what seem to be the key expectations of many in the field of transitional justice, these ends are not finite nor do they bring complete closure. Instead, they may be one version of justice, and perhaps the only one we can expect after many years of impunity.

Ministerial Emergency Powers Over Court Administration in the Israeli Judiciary

This article focuses on the administration of courts in Israel during the Coronavirus Pandemic, and particularly on the emergency powers utilized by the Minister of Justice. The article points out that more attention must be granted to the confluence of two issues: emergency powers and court administration. While the literature on emergency powers has discussed at length the challenges inherent in maintaining the rule of law under extreme conditions, the literature on court administration has not shown as clear an awareness of the issue, even though it has extensively discussed the tensions intrinsic to executive control over court administration. This article points out, drawing on both of these theoretical discourses, that we must carefully structure emergency powers over the administration of courts taking care to maintain the realization of the principles of judicial independence and judicial accountability, which in emergencies necessitates a clear separation of the power to declare a state of emergency from the power to curtail court operations due to the emergency. Furthermore, we must also maintain transparency in the realization of these principles, which is almost as important as their actual realization in order to maintain public confidence in the courts. © 2021 The Author(s). This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/.

The Genetically Modified Organisms’ Regime: A Playground for Multi-Level Administration and a Nightmare for Effective Judicial Protection?

AbstractThe European Union has a comprehensive legal framework in place for the authorization, traceability, and labelling of genetically modified organisms, the aim of which is to create a unified market while simultaneously ensuring that the placing on the market of the products concerned will not pose a risk to human or animal health or to the environment. This framework sets out complex, multi-level procedures which entail the cooperation and sharing of information between various national and European authorities. Filling a gap in the literature, this contribution focuses on the challenges to the system of judicial accountability that emerge in this particular system of multi-level administration. This Article shows that the problems posed by composite procedures in terms of access to justice and effective judicial protection can possibly be solved in light of the current rules concerning the division of labor between national and European courts and the applicable case law of the Court of Justice. As this Article will show, many more unsolved issues arise instead with respect to the compliance with the requirements of access to justice provided by the Aarhus Convention.

Reforming the WTO Dispute Settlement Mechanism: Towards a Mega-Multilateral Court?

The Dispute Settlement Mechanism of the World Trade Organization (WTO) is facing serious crisis, which has impeded its normal function. To address this impasse, this article suggests a reform of the WTO’s dispute-settlement mechanism: the establishment of a new megamultilateral court to substitute for the Appellate Body. The first part of this paper addresses the reasons for considering this approach. The second part identifies how to establish a new mega-multilateral court within the WTO. The third part puts forward an idea of the function of the Dispute Settlement Body, which would serve as a forum for adjudicators and State Parties of the mega-multilateral court, in order to balance judicial independence, judicial accountability, and consistency. In discussing the reason for this reform, approaches to implementing it, and other examples of what form it might take, this article concludes that it is appropriate to establish a new mega-multilateral court within the WTO.

Assessing the Efficacy of the Concept of Judicial Accountability Through the Lens of the Constitution of Pakistan

Superior Courts judges are expected to have a higher standard of conduct. It is necessary for the judiciary as an institution, to maintain its probity and independence. The proposition that the Superior Court Judge is only responsible for his conduct and not that of his independent wife and children. This study makes clear that Judges are supposed to know the interests of members of their families in monetary terms. This work further explores an appealing hypothesis that the President should act in his discretion when authorizing an investigation against a Superior Court Judge under Article 48(2). The study concluded that under the Constitutional process for performing the executive function of authorizing an investigation into information against a Superior Court Judge, the President should act on the advice of the PM or the Cabinet under Article48(1) of the Constitution and not invoke his discretionary power under Article 48(2).

Exploring the Possibility of Interplay between Different Types of Control: Connecting Political and Judicial Accountability in the Case of EASA

More and more agencies have been created at both EU and national levels, which cooperate increasingly among each other and take part in various decision-making processes with binding effects on third parties. Within the EU aviation safety system, for instance, it is the European Aviation Safety Agency who shares far reaching regulatory, implementing and enforcement responsibilities with the EU Commission and the National Aviation Authorities. Such a system of the ‘multi-jurisdictional’ executive branch challenges the system of controls. Therefore, this paper explores the question of to what extent judicial and political types of accountability can be ensured in a system of shared enforcement of the EU aviation safety rules, and if these types of accountability could compensate for each other’s challenges. This paper argues, first, that different types of control can check different parts of behaviour and outputs. Secondly, limits and challenges to a certain type of control can be addressed by another type of control. However, in this regard different degrees of usefulness are visible since challenges in judicial accountability could be easier addressed by possibilities of political accountability than vice versa.

The Accountability in the Justice System: Have Times Really Changed? Reflections From an Italian Social Reporting Experience

Society has not only a right to know: in contemporary democracies, there is also a right to participate in the life of public institutions. A representation of a judicial accountability aware of this is provided in this article. This research describes, by analyzing the latest social and sustainability report of the Public Prosecutor’s Office of Naples, possible points of contact between reporting and citizens. The results are still not satisfactory: stakeholder engagement often remains only an appreciable attempt. However, despite gaps and uncertainties, the report goes beyond mere descriptive narrative. Innovative elements that suggest a new season for reporting in the judicial sector are present, such as the reconstruction of the economic and financial values in a prospective key, in order to arrive in the future to study the impact on society of the efficient functioning of judicial offices. Finally, this study offers some ideas for rethinking the Italian Judiciary in a sustainability key.

Between Scylla and Charybdis – Judicial Independence and Accountability in the Populist Era

International courts bear today the burden of having to frequently examine judges’ complaints from different states and seek to set appropriate standards to uphold the fundamental principles of democracy. In words of the Former President of the President of the Constitutional Tribunal of Poland Andrzej Rzeplinski, “the less heroism a specific system of law or a social system demands of a judge, the better are both this law and this system”. Unfortunately it appears that we live in the era of “judicial heroism”. Whilst in previous times the ECtHR mostly dealt with procedural dimension of judicial accountability – as a prerequisite to judicial independence -, nowadays, more and more, we have to turn to its political and ethical dimensions. Although judicial independence does not amount to a free will and the judicial power must be held accountable, this has nothing to do with the temptation to punish a judge for a wrong decision. The paper analyses cases related to grounds for holding a judge liable, given that independence and accountability of judges are merely two sides of one coin.

Odgovornost i transparentnost u građanskom pravosuđu - opće odrednice i pogled iz hrvatske perspektive

The paper analyses the notions of judicial accountability and transparency from a Croatian perspective. The prolonged transition period and the EU accession process underlined the importance of an independent but effective judicial system. The need to secure mechanisms that would enhance societal and legal accountability of judges and other judicial professionals is strongly affected by the developments in 1990's and early 2000s when new judicial elites, still influenced by past practices but protected by an overemphasized and misunderstood notion of judicial independence, created a closed professional group, a 'state within a state'. Massive inefficiency and weak systems of liability call for a new approach. While describing some typical issues encountered in Croatia, this contribution strives to lay down some elements for rethinking of judicial accountability and transparency in civil justice systems of Central and South-Eastern Europe.