Judicial Autonomy Research Articles

The Law or the Career? Autocratic Judiciaries, Strategic Sentencing, and Political Repression

Why do judges sometimes act against autocrats’ will, even without judicial independence and tenure security? Contrary to the theory of strategic defection under weak governments, we argue that this behavior can also emerge under strong governments with lax monitoring. When autocrats primarily monitor severe political cases, judges can strategically downplay case severity to avoid oversight, thereby increasing judicial autonomy and the rule of law. Yet, these adjustments will be carefully calibrated–sufficient to evade scrutiny but not too drastic to trigger autocrats’ suspicions and incur sanctions against judges. We test this expectation with new data on Taiwan’s military trials during authoritarian rule, finding that judges tend not to issue sentences above a review threshold after its introduction. Sentence reductions are mostly moderate, affecting cases where sentences can fall slightly above or below the threshold under judges’ discretion. These findings have implications for understanding state repression and judicial agency in nondemocracies.

Can informal judicial norms protect against political pressure?

International tribunals are pulled between a commitment to judicial autonomy and the need to manage their members’ political expectations, lest these rein in the tribunal’s power. We argue that when the formal design of international institutions leaves them exposed to political control, institutional actors can respond by self-imposing constraints to protect themselves from excessive oversight. We examine this phenomenon in the context of the World Trade Organization’s (WTO) Appellate Body (AB), touted until recently as one of the most successful international tribunals in existence. We argue that the early insistence on collegiality and consensus opinions among WTO AB members had the effect of (i) deflecting political blame and (ii) providing cover for adjudicators who did not dissent when governments might have wished them to. As the informal norm of consensus opinion was weakened, political control by WTO members grew stronger, culminating in the United States’s move to paralyze the AB. Weaker actors can thus improve their position under formal rules, yet this requires a strong commitment to a set of informal norms, which comes with its own challenges.

Judicial Autonomy of Vilnius and 16 January 1566 Privilege of Sigismund Augustus – Guaranteeing the Rights of Self-Government in the Context of Judicial Reform

In 1387, Jogaila’s privilege granted Vilnius the Magdeburg law and guaranteed the judicial autonomy of its citizens. Vilnius citizens had the right and the obligation to conduct their legal affairs in the courts of the Vaitas, the Bench judges and the Council, which started to function from the moment the privilege of self-governance was granted or shortly afterwards, and to be governed by Magdeburg law. The preservation of judicial autonomy had to be constantly taken care of, and the Vilnius city authorities did this by securing confirmatory privileges of self-governance and, if necessary, the ruler’s injunctions against their violation by the Vilnius Palatine and Bishop, whose courts some times violated the judicial autonomy of Vilnius. In this respect, one of the critical moments was the reform of the courts of the Grand Duchy of Lithuania and the renewal of the Statute of Lithuania in the pre-union period (the 1560s). During the reign of Sigismund Augustus, King of Poland and Grand Duke of Lithuania, the City of Vilnius was granted as many as three Confirmation privileges, which renewed the rights of self-governance and ensured the inviolability of the city’s legal autonomy during the period of judicial reform and the adoption of the Second Lithuanian Statute. The last one, on 16 January 1566, crowned the intense struggle of Vilnius citizens during the years of great changes in the Grand Duchy of Lithuania.

ECJ Encroachment on Domestic Judicial Autonomy? - An evaluation of ECJ value-operationalizing case law in Juízes Portugueses and subsequent cases

ECJ Encroachment on Domestic Judicial Autonomy? - An evaluation of ECJ value-operationalizing case law in Juízes Portugueses and subsequent cases

ILLEGAL LOGGING ENFORCEMENT: DYNAMICS OF PENAL SANCTIONS IN KEBUMEN COURT

This research investigates the multifaceted nature of criminal punishment, considering its purposes such as deterrence, retribution, rehabilitation, and the maintenance of societal order. Specifically focusing on Article 78, paragraph 15 of forestry law, which delineates penal sanctions, the study explores the application of confiscatory penalties in cases of forestry offenses, particularly illegal logging. The research centers on the practices of the Kebumen District Court in enforcing sanctions against illicit logging, examining the discretionary powers exercised by judges. Despite the existence of the 2005 Judicial and Court Management Technical Instructions governing evidence seizure in illegal logging cases which constrain judicial authority in sentencing. Adopting a non doctrinal research through interview to the judges and literature research as data collection. Those data are analysed qualitatively. the study reveals intricate challenges in penalty enforcement at the Kebumen District Court, encompassing imprisonment, fines, and the confiscation of forest products. Notably, disagreements among judges regarding adherence to Supreme Court guidelines highlight the complexities of balancing judicial autonomy with technical directives. The findings underscore the need for clarifying legal frameworks and enhancing judicial training to harmonize the application of penalties in forestry crime cases, thereby ensuring consistency and fairness in sentencing practices.

Transformative Preservation of Military and its Impacts on Judicial Autonomy and Constitutionalism: A Critical Appreciation in the Context of Pakistan

Transformative Preservation of Military and its Impacts on Judicial Autonomy and Constitutionalism: A Critical Appreciation in the Context of Pakistan

SDG 2030 Agenda and Human Rights in Nigeria: Assessing Legislative Challenges and Strategies to Foster Inclusivity

As the global community strives to achieve the Sustainable Development Goals (SDGs) 2030 Agenda, Nigeria, as Africa's most populous nation and largest economy, plays a critical responsibility in achieving these ambitious goals. The study critically assessed the legislative challenges that impede the realization of both human rights and the SDGs in Nigeria. Human rights have taken a significant role in international jurisdictions, transcending geographical boundaries, inclusive of rights inherent to all individuals by virtue of their humanity. While promoting the right of life, liberty, fair trial, and human dignity, are enshrined in the Nigerian Constitution, instances of human rights violations persist, despite the presence of human rights groups and the National Human Rights Commission (NHRC). This paper examined human rights scholarly literature in Nigeria, identifying key challenges facing the achievement of SDG 2030 of United Nations, whose main agenda seeks to enhance public access to information and protect human rights in line with national and international agreements. It highlights institutional barriers, and the need for improved policy coherence to create an enabling environment for sustainable development. This study identifies challenges stemming from inadequate monitoring systems, manipulation of adjudication processes, low salaries, indebtedness, and security deficiencies. To foster inclusivity and progress, the researcher proposes a multifaceted approach that combines legal reforms, policy interventions, and civil society engagement. Specific strategies include the enactment of comprehensive human rights legislation, targeted measures to address social and economic inequalities, accountability, judicial autonomy, public awareness and participation to empower the populace to seek redress for rights violations. These strategies aim to create a synergy between human rights and SDGs, aligning national priorities with global objective

Judicial activism and ratification of environmental treaties

ABSTRACT A key theory of environmental politics holds that states must achieve a certain level of economic development before environmental protection will occur. The assumption is that once people attain economic satisfaction, they are no longer willing to accept environmental degradation in return for a greater standard of living. Yet, numerous developing states ratify environmental treaties without achieving a median-level per-capita income. How do some states reach environmental goals that require some behaviour change without the assumed demands of the citizenry? This paper argues that judicial autonomy may be the key to bringing environmental protection to the poorest states in the developing world. Activist judges, free of political interference, can push through policies that are unpopular but serve the greater good. Reacting to this, governments may be more likely to sign and ratify international environmental agreements. Using patterns of ratification for two conventions, I find evidence in favour of the hypothesis.

Institutions that define the policymaking role of courts: A comparative analysis of the supreme courts of Scandinavia

Abstract Scandinavian supreme courts have been described as deferential to the elected branches of government and reluctant to exercise their limited review powers. However, in recent years, these courts have increasingly decided cases impacting public policy making. Yet we lack comprehensive, comparative knowledge about the legal rules and judicial practices that govern the policymaking role of courts in Denmark, Norway, and Sweden. Addressing this gap, this article develops an analytical framework and systematically compares the evolving laws, rules, and practices that regulate the supreme courts’ constitutional review powers and court administration, the appointment and tenure of judges, access to the supreme courts, and their decision-making procedures over the last fifty years. The comparison reveals notable institutional differences across these judiciaries and finds that judicial expansion in Scandinavia has coincided with institutional changes that enhance judicial autonomy. This suggests that consequential reforms of domestic origin may have played a larger part in this development than previously appreciated.

Fixing Accountability of Judges Will Enhance the Sagging Credibility of District Courts in India.

Judges need to have accountability. It has been stated and observed that judges are not accountable for their judgments, orders and other judicial proceedings and they may pass the judgments, orders rightly or wrongly. In the way, an unfettered immunity has been granted to them for their actions in performing judicial actions in the name of judicial independence or judicial autonomy. Due to this, judges have become more independent, fearless since they are not accountable for their judicial judgments, orders and other judicial functions. Sometimes the judges may interpret the law wrongly and cause injustice rather than providing justice. An effort has been made to understand why there is need that the judges should be accountable and appraise it against number of benchmarks.

From hierarchical to panoptic control: The Chinese solution in monitoring judges

Abstract In the wake of the 2014 judicial reforms, are Chinese judges in most circumstances free in their decision-making? Based primarily on interviews with judges, this article argues that although a truncated hierarchy has led to increased judicial autonomy, the state maintains its tight grip over judges. In its new form, the state’s control is more indirect, external, ex post, diffused, and ideological. It allows the state to closely monitor judges’ entire handling of cases (hence the designation “panoptic”). It has some similarities with, yet fundamentally differs from, existing patterns in authoritarian states. While judges’ accountability continues to be largely a bureaucratic matter, this Chinese form of control has nonetheless been effective at a time of soaring caseloads, a slimmed-down judiciary, and increasing insistence on legitimacy. This article seeks to deepen understanding of developments in Chinese courts and, more widely, judicial politics in authoritarian states.

The Limits of Judicial Reforms: How and Why China Failed to Centralize Its Court System

AbstractThis article investigates the implementation effects of China's recent reforms to centralize its court system and offers an explanation of why such centralization efforts largely failed. Drawing upon in-depth interviews with judicial personnel from four localities, the study shows that local courts’ structural dependence upon same-level party-states is perpetuated or, in some cases, is even exacerbated, despite the unprecedented reform plans to centralize the budgetary and personnel management of the judicial system. Further investigation finds that, contrary to what existing assessments suggest, implementation failure is less a result of regional disparities in resources than of the party-state's own reliance on its horizontal line of power concentration and hierarchy, which is a core feature of the Chinese Communist Party's (CCP) one-party rule and hinders the party-state's own attempts to strengthen both judicial autonomy and centralization. The article thus challenges two extant notions on recent political-legal developments in China – that the CCP regime has substantially centralized its judiciary along the vertical line, and that judicial autonomy can continue to increase and manifest both under the conditions of, and serving the purpose of, deepening one-party authoritarianism.

Are WTO Rulings Biased? The Role of Institutional Design in Protecting Judicial Autonomy

Are WTO Rulings Biased? The Role of Institutional Design in Protecting Judicial Autonomy

WTO Rulings and the Veil of Anonymity

Abstract Despite a general push for greater transparency, opacity continues to play an important function in international tribunals. The World Trade Organization (WTO) is a case in point. While it has done much to increase its openness, the very design of its dispute settlement body is premised on anonymity in some essential respects. We examine two such instances, each dealing with the authorship of dispute rulings. First, we use text analysis tools to demonstrate that the WTO’s panel reports appear to be largely drafted by WTO Secretariat staff rather than the panellists themselves. This appears especially true for the WTO’s most systemically important disputes. Second, we show that the formal anonymity of dissenting opinions, which is required by the WTO’s rules, is a thin veil. Using the most recent Appellate Body’s dissent for demonstration, we use text analysis to pinpoint its likely author. In both these instances, we argue that anonymity exists by design: it serves to strike a balance between judicial autonomy and political control. Yet, in both settings, due to increased scrutiny and widespread access to text analysis tools, the equilibrium relying on anonymity is likely to be upset, with implications for the institution’s future design. We argue that the ultimate result may be a beneficial one and offer a menu of reform options.

Judicial Council in the System of Constitutional Bodies of the Republic of Kosovo

On February 17, 2008 Kosovo declared independence. The foundation for the creation of the Republic of Kosovo was the international community, which created the legal framework for the future statehood of Kosovo. The concept developed in the Athisari Plan of making the Judicial Council the guarantor of judicial autonomy and independence of judges was also a kind of anticipation of the subsequent fundamental changes in the system, introduced under the 2008 Constitution. This article attempts to analyze the systemic position of the Kosovo Judicial Council in the state system formed under the 2008 Constitution. It presents the composition of the Council, the procedure for the appointment of its members and the principles of its organization and functioning. The solution adopted in the Kosovo Basic Law is in line with the widely understood Southern European organizational model of judicial councils.

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.

A COMPLAINT MADE BY THE LVIV JEWISH COMMUNITY AGAINST JUDGE JAN ZAIDLICH (1571)

The struggle of the Jewish community of Lviv for the expansion of its rights in the field of judicial autonomy in the second half of the 16th century is traced. It is noted that according to the statute of Boleslaw the Pious (1264), which was based on the activities of Jewish communities in the Crown of the Kingdom of Poland, Jews could not submit to the authorities of Magdeburg law, but recognize the supremacy of Zemstvo law. It has been established that the privilege of King Casimir the Great in 1367 to confirm and extend the effect of the statute to the territory of Lesser Poland and the south-eastern territories of the kingdom was of decisive importance for the development of the judicial autonomy of the Jewish community of Lviv, because since then the Jews of Lviv could be subject not to the local wójt, but to the royal court. It is noted that in practice, the Jewish judiciary belonged to the competence of the voivode, who represented the interests of the monarch on the ground. It was emphasized that due to the large volume of work, the voivode was physically unable to deal with these cases, therefore, an additional position was created - a Jewish judge. It is indicated that this official usually belonged to the middle-affluent nobility, often performed other Zemstvo functions at the same time, and considered the position of judge as an opportunity for additional income. It is noted that the published document reproduces the protest of the Jews against their judge Jan Seidlich, who was not only a rich merchant from Lviv, but also a royal servitor (servant) and nobleman. It has been investigated that he came to the forefront of Lviv's historical events in the early 1570s and was the main leader of the public protest of Lviv residents against the city council in 1576–1577, for which in 1578 he was deprived of city rights, that is, effectively removed from city society. It was concluded that Jan Zaidlich, being in close relations with the nobility of the Russian voivodeship and the then voivode Mykolai Sinyavskyi, was appointed to this position due to his knowledge of the legal aspects of city and Zemstvo rights, but he failed to establish relations with representatives of the Jewish community, who depended on their court proceedings were handled by persons sympathetic to them. Keywords: Jewish community, Jewish jurisdiction, palatine, Jewish judge, burghers, city council, Jan Zaidlich

Niezależność sądu oraz niezawisłość sędziowska w sprawach karnych w okresie rządów autorytarnych i totalitarnych w Polsce

At present, there is no doubt that a need exists to ensure the citizens’ right to have a criminal case examined by an independent and unbiased court. For the proper functioning of the court-based administration of justice to be possible, the courts must have the attribute of independence and the judges must be autonomous. These issues are regulated in international treaties to which Poland is a party. The aim of this study is to describe the role of judiciary independence and judicial autonomy in criminal cases. In order to achieve these goals, considerations will be presented on the essence of such independence and autonomy, and a reference will be made to the way the authoritarian state functioned after the May coup in the Second Polish Republic, and the totalitarian state during the era of the Polish People’s Republic.

The disempowerment of the judiciary in Syria since the March revolution of 2011 and the emergence of off-bench resistance to authoritarian rule: What role for women judges and prosecutors?

The Arab uprisings of 2010-2011 generated a growing movement for change among the judicial corps throughout the Arab world. Judges and prosecutors created independent associations in Morocco, Mauritania, Yemen, Libya, Lebanon, and Tunisia to represent their interests and promote a better administration of justice. Since the March Revolution of 2011 in Syria, members of the judiciary also attempted to create their own association, but failed to do so. This article briefly outlines the demographics of the judicial corps after ten years of conflict in Syria. A noticeable change is the increase in the number of women in the judiciary and their promotion to positions of power. How have women judges and prosecutors used the greater authority granted to them? To the advantage of the regime, as a means for self-promotion or to better defend the rights of all? The second part of the article details the progressive disempowerment of the judiciary, the expansion of the criminal justice system and the creation of the Counterterrorism Court used by the regime to quash the popular uprising. In the final section, stories of off-bench resistance highlight efforts made by judges and prosecutors to defend their judicial autonomy and the basic human rights and freedoms of all Syrians.

Norm-busting: rightist challenges in US and Australian immigration and refugee policies

Institutionalist scholars argue that international rights norms, judicial autonomy and discourses of immigrant nationhood constrain shifts to harsher immigration policies in liberal democracies, particularly settler societies. The Trump presidency and the Liberal–National Coalition government in Australia during the same period are occasions to test whether those norms functioned as expected in two paradigmatic country cases. Both governments attempted to undermine judicial autonomy, the illegitimacy of ethnic and religious selection of immigrants, the rights of detained children and families, and the principle of non-refoulement. A new institutionalist analysis of attempted norm-busting in each country specifies which norms were effective constraints. International legal and political constraints were weak. Domestically, norms obliging the protection of children were more effective than norms related to adults. Discourses favouring immigrant nationhood and opposing discrimination resonated, but were confronted by equally powerful discourses of insular nationalism and security that promoted restriction. While the judiciary moderately constrained new policies, particularly in the US, in neither country did the judiciary fully act in line with dominant theoretical expectations, because of both structural and normative weaknesses.