Judicial Independence Research Articles

Judicial independence and corporate innovation: Evidence from the establishment of circuit courts

This study explores the effects of judicial independence on corporate innovation by analyzing the staggered establishment of Circuit Courts in China. We find that introducing Circuit Courts increases corporate innovation, particularly for central state-owned enterprises and private firms. Channel analysis shows that Circuit Courts significantly reduce local judicial protectionism, ease financial constraints, and improve corporate governance, which stimulates innovation. The positive effects of Circuit Courts are more pronounced in cities facing severe political intervention, regions with weak legal environments, and private firms without political or banking connections. Our results are robust to endogeneity concerns, alternative measures and specification models. Overall, this study supports the theoretical arguments that institutions matter and that improvements in judicial quality boost firms' incentives to innovate.

BALANCING RELIGIOUS TRADITIONS AND LEGAL NEUTRALITY: THE INDEPENDENCE OF INDONESIA'S CONSTITUTIONAL COURT

This article examines the independence of the Indonesian Constitutional Court in relation to religious issues, particularly regarding religious freedom and marriage regulations. Utilizing a socio-legal approach, the article analyzes five judgments and assesses whether the Court accommodates the aspirations of the religious majority while still maintaining neutrality. Results show that the Court's legal decisions tend to accommodate societal aspirations, but this does not necessarily indicate a lack of neutrality. The article asserts that the independence and neutrality of the judiciary are crucial in a rule of law state, and the Court must balance societal aspirations with its role as a legal decision-making body. The Court's independence should be evaluated based on the methodological consistency of its legal decisions. Overall, the article highlights the importance of judicial independence and neutrality in a rule of law state, with implications for Indonesia's Constitutional Court and other similar legal systems.

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.

Conceptualising Judicial Independence and Accountability from a Regulatory Perspective

Conceptualising Judicial Independence and Accountability from a Regulatory Perspective

Featuring Fiqh: the Representation of Islamic Law in Egyptian Historical Dramas

Abstract Although they may have learned the norms and practices of fiqh at home and in school, most Muslims have scant knowledge of the ways in which their religious laws and mores were practiced in pre-modern times. Indeed, when it comes to imagining and understanding the role of fiqh in earlier Muslim societies, many contemporary Muslims get their information through fictional treatments, particularly from films and television dramas. For Arab Muslims, the relevant medium here is the musalsal, the 30-episode Ramadan drama. This article is a preliminary investigation into the role of fiqh in Egyptian historical films and musalsalāt. Based on collected scenes of fiqh – judges passing sentences, muftis issuing fatwas, teachers instructing, and student discussions – it identifies the issues at stake and analyzes the style of argumentation, the exercise of authority, and the general image of a fiqh-based society created in films and dramas. While the fuqahāʾ only play a minor role in Egyptian film, they are prominent in Arabic historical and religious musalsalāt, often, but not exclusively, produced in Egypt. In these two genres, we have biopics of major religio-legal figures, such as the founders of the four legal schools, major theologians, 19th century reformers, and a few modern ʿulamaʾ. Tracing the evolving treatment of fiqh and fuqahāʾ from the early dramas of the 1980s up to today, this article focuses on the themes of judicial independence, justice for the poor, corruption, and the intellectual process behind rulings. It argues that, overall, the lesson of the musalsalāt is a positive one: Shariʿa works, authoritarian rule has the capacity to be enlightened, and the key to effective leadership is appointing the right people to govern, or judge. The article concludes by discussing these messages in a contemporary Egyptian setting.

Media Discourse, Legal, and Ethical Issues Arising from the Zuma Saga and Nkandlagate

Allegations of corruption and rape against President Jacob Zuma constituted among the most covered stories in South Africa and beyond. Widely dubbed “the Zuma saga” by the media, the twin stories began with allegations of corruption in the arms deal. While the corruption case still gripped the public, another damning allegation (rape) surfaced and fermented the story to levels surpassed by no other story at the time. Zuma was subsequently acquitted of the rape charge, but the charge of corruption continued relentlessly until the eve of the 2009 elections, in which he was elected as president. But just as the South African public thought the dust was settling, Zuma was hit by another damning allegation of inappropriately spending R250 million on upgrading Nkandla, his private residence. This article is three-pronged. First, it examines the key issues that accounted for the media frenzy sparked by both the Nkandla debacle and the Zuma saga. Second, it unravels critical ethical questions and legal issues implicit in the aforementioned cases. Third, because Zuma’s acquittal raised questions regarding the independence of the judiciary, the article also assesses the condition of judicial independence in South Africa. Theoretically, the article is informed by the sociology of journalism ethics and the notions of ethical leadership and judicial independence.

Health of the Judiciary in a Democratizing Nigeria: Still Gasping for Breath?

Abstract While the Judiciary has continued to play a major role in Nigeria’s democratic journey, yet critical studies on the terrains of judicial independence remains scanty. It is against this background that this article, based on desk analysis, critically examines the health of the Judiciary in a democratizing Nigeria, through the prism of judicial independence. It notes that despite the institutional frameworks, embedded in the 1999 Constitution (as amended) to provide a well-ventilated environment for its existence, the Judiciary, even though still breathing, is still gasping for breath. It argues that this is unconnected to the internal contradictions within the Judiciary and pervasive prebendal culture, which have all interacted to shape the content and terrains of judicial independence in a democratizing Nigeria. The article concludes that as long as the Judiciary in Nigeria continues to be mired in internal contradictions from within, its journey towards achieving institutional independence would remain tortuous.

Attack or reform: Systemic interventions in the judiciary in Hungary, Poland, and Slovakia

Is it possible to distinguish whether a government is willing to eliminate its accountability or aims for public trust or efficacy growth? Moreover, which elements in the government’s actions differentiate valid criticism from an attack on the independence of the judiciary? This paper proposes an original approach toward recognizing an attack on the judiciary. While previous approaches focused on the reformer’s motivation, adherence to international standards, or the requirement of the “tribunal established by the law,” this approach is looking for a kernel of judicial independence and finds it in sufficient conditions for a judge’s free and impartial decision. In the paper, changes in Hungary and Poland will be compared to the Slovak judicial reform since 2020. While after three decades after the fall of state socialism, Hungary, Poland, and Slovakia face similar problems of backsliding of the rule of law and emerging populism, different motivations, interpretations, and outcomes of the judicial reforms can be seen in Slovakia.

Poland’s Rule of Law Breakdown Continued: Judge Żurek’s Battle for Judicial Independence Within the European Human Rights Framework

Abstract Judicial independence and rule of law in Poland have been increasingly under challenge before national and European courts. Departing from a case study of Judge Żurek, an emblematic figure of the Polish judicial community prosecuted for criticizing the post-2015 judicial reforms, this article assesses how the European Human Rights framework can play out in a particular case of a judge defending the rule of law in his country. After having outlined the circumstances of his prosecution, it follows his journey to Luxembourg and Strasbourg. Namely, it lays out the legal issues before the Courts and examines the standards they establish, commenting on how they translate into prospects of redress. It finds that, while both the cjeu and the ECtHR establish standards on court transfers, judicial nominations, premature termination of office or the link to freedom of expression, the level of judicial independence required for their successful implementation creates a paradox.

The development of case law of the Court of Justice of the European Union on the assessment of the independence of judges in Member States: an analysis on the example of cases concerning the judicial reform in Poland

In recent years, interpretation of the concept of an independent and impartial court has been the subject of debate in national and international legal space. In particular, the issue of the admissibility of an assessment of the independence and impartiality of judges, and the criteria that should be taken into consideration in such an examination, raise doubts. This problemis discussed in a broader context concerning the competences of European Union bodies to assess the organisation of the system of justice in Member States.The article presents the matter of the formation of the competences of the Court of Justice of the European Union with regard to the functioning of the judiciary along with the mostimportant judgments from the perspective of the issues in question. An analysis of the court rulings enabled a conclusion to be drawn of the creation of two different ruling practices: in the domestic aspect, it allows for an arbitrary and abstract test of judicial independence, whereas in the EU aspect the test is objective and individual.

Glosa do wyroku Sądu Unii Europejskiej z 9 lutego 2022 r. w sprawie T-791/19 – Sped-Pro S.A. przeciwko Komisji Europejskiej – „Zasada państwa prawnego a współpraca krajów członkowskich Unii Europejskiej w obszarze ochrony konkurencji”

The aim of this case comment is to discuss whether it was justified that the General Court in its judgment dated 9 February 2022 in the case Sped-Pro (T-791/19) annulled the European Commission’s Decision No. C(2019) 6099 final dated 12 August 2019 r. (case AT.40459) connected to the potential abuse by PKP Cargo of a dominant position on the market for rail freight in Poland. In this judgement, the General Court argued on the basis of the rule of law principle and applied analogically the judgment on the European Arrest Warrant. In this regard, the analysis starts with the rule of law principle, the judicial independence of courts and administrative authorities, the obligation of loyal cooperation between European Union and member states to ensure fulfilment of the obligations arising out of this Treaty, both in the light of Union law and European courts case law.The next part of this case comment attempts to assess whether the General Court was justified in analogically applying the judgement dated 25 VII 2018 r. C-216/18 PPU Minister for Justice and Equality on the European Arrest Warrant in the field of European policy on competition. The analysis ends with the description of the practical consequences of the Commission’s finding that the President of UOKiK and the Court of Competition and Consumer Protection are not independent. In the last part of the text, the author also indicates the consequences of the proper implementation of the Directive ECN+ for analysing the scope of independence of the President of the Office of Competition and Consumer Protection. The author indicates the necessity to separate in future analysis the issue of the independence of the President of the Office of Competition and Consumer Protection (national administrative competition authority) and the Court of Competition and Consumer Protection, which in Polish is a common court.

Court-packing and democratic decay: A necessary relationship?

AbstractA growing body of literature on the role of courts in democratic backsliding claims that court-packing weakens liberal democracy. However, this is not necessarily the case. The goals of the actors who produce court-packing help to explain why the co-optation of the judiciary can have a substantial negative effect on liberal democracy in some (although not all) cases. In this respect, we distinguish two types of court-packing. First,policy-driven court-packingoccurs when politicians manipulate the composition of courts in order to assure a quick implementation of policies. Although this tends to negatively affect judicial independence, it is not per se a first step towards regime change. Second,regime-driven court-packinghappens when politicians alter the composition of the courts with the goal of eroding democracy. In this case, court-packing’s negative effect on judicial independence has a systemic negative effect on different dimensions of liberal democracy. Relying on a wide range of primary and secondary sources, we conceptualize these two types of court-packing by comparing two cases: Carlos Menem (1989–99) in Argentina, seeking judicial support to carry out pro-market economic reforms, and Hugo Chávez (1999–2013) and Nicolás Maduro (2013–present) in Venezuela, seeking to control the judiciary in the context of democratic backsliding.

Walking the line in times of crisis: EU fundamental rights, the foundational value of the rule of law and judicial response to the rule of law backsliding

The research focus of the paper is on the relation between general principles, fundamental rights and the rule of law in the EU. The role of the judiciary is evaluated through the prism of the jurisprudence of the Court of Justice of the EU (CJEU) with a particular focus on the formula, introduced in the Associação Sindical dos Juízes Portugueses judgment and subsequent decisions by the CJEU, related to the rule of law and independence of the judiciary. A thorough assessment of the relation between fundamental rights, foundational values of the EU such as the rule of law and effective judicial protection through the methodological evaluation of the effectiveness and functional interpretation is included. The core of the research reflects the functional approach of the CJEU with respect to judicial independence as the condition for effective protection of fundamental rights and EU law. Especially crucial is the role of national courts for upholding the rule of law on EU level. The role of the EU’s Rule of Law Report mechanism, introduced in 2020, is analysed as judicial independence forms an essential part of the reports. The EU Rule of Law reports serve as illustrations of the underlying problems, related to the rule of law and in particular the independence of the judiciary and effective judicial protection and related enforcement and implementation issues.

Why courts are the life buoys of migrant rights: anti-immigrant pressure, variation in judicial independence, and asylum recognition rates

ABSTRACT A rise in anti-immigrant pressure can reduce asylum recognition rates, irrespective of individuals’ protection needs. Independent courts, which often act as a safeguard of migrant rights vis-à-vis such pressures, have been subject to increasing political interference. Yet, we know very little about how variation in the level of judicial independence – especially among lower courts – affects policy outcomes. In this paper, we assess the impact of anti-immigrant pressure and judicial independence on first and final instance refugee status determination decisions across 28 European Union member states over a ten-year period (2008–2018). We find that the relative independence of courts makes the biggest difference in asylum recognition rates at first and final instance when levels of anti-immigrant pressure are particularly high. This effect can be demonstrated not just regarding asylum appeals, but also for first instance decisions, suggesting that independent courts can have a liberal ‘foreshadowing effect’ on national asylum agencies.

Judicial Corruption as a Violation of Professional Ethics

Purpose: The purpose of this study is to present some ethical issues facing the Indonesian judiciary by exploring the usefulness of judicial codes of ethics. The ethical crisis of judges occurred at a time when judicial independence was strong post the amendment of the 1945 Constitution. The judicial crises triggered uncertainty and pessimism about judicial accountability Theoretical framework: Legal literature states that fair, honest, and impartial legal processes cannot be separated from that of ​​an independent judiciary [Shugermann, 2010: 1061]. The independence and impartiality of the court as one of the ten minimum conditions for creating a constitutional society. Design/methodology/approach: In this study, the author conducted normative legal research. This method helps examine the juridical standards contained in laws and court decisions. Furthermore, library research was conducted to obtain data from primary, secondary, and tertiary legal materials. Findings: Despite the judiciary gaining strong independence following the amendments of the 1945 Constitution in 2001–2002, unfortunately, the judiciary suffers from an accountability crisis, as seen through the arrests of several judges for bribery. Research, Practical & Social implications: We hope that this research can bring awareness and increase adherence to the code of ethics of the judicial profession. Originality/value: It is hoped that the ideas and issues raised in this paper will help the judiciary recognize the importance of developing, maintaining, and, most importantly, honouring a code of ethics in keeping with the ethical obligations of the judicial office.

Duration of the constitution-making process as an indicator of post-constitutional political uncertainty: The insurance theory revisited

AbstractCriticizing the insurance theory, this article asserts that to measure post-constitutional political uncertainty, one should consider not only the power distribution among the ‘political’ actors but the power distribution among all actors involved in the constitution-making process, including the public and civil society. Comparing the constitution-making processes of the constitutions of Egypt (2012) and Tunisia (2014), this study presents the duration of the constitution-making process as an alternative measure of power distribution among all actors. The theoretical framework asserts that the long constitution-making process increases the possibility of deliberation at the public level. That will help to develop trust among polarized political actors and improve political actors’ perception of the public as a credible control and constraint mechanism. This will ensure that the incoming government will respect the newly established institutions and lead to the establishment of an independent and powerful judiciary. In the second part of the article, to test this argument, I use a large dataset that covers information on the content and design processes of 140 countries’ most recent constitutions adopted between 1945 and 2018. The empirical results indicate that as the duration of the constitution-making increases, the number of constitutional guarantees for judicial independence also increases.

Defending the watchdogs: How citizens and courts protect the press

A free and independent press monitors government actions, broadcasts public grievances, and facilitates debate and dissent among citizens. Because of this, some executives run interference—censoring newspapers, harassing journalists, and shutting down media outlets—whereas other executives do not. What explains this variation? We argue that executives decide to repress or to respect the press based on the sanctions they anticipate from two important constituencies: courts and citizens. We expect that attacks are less likely when courts can make adverse rulings and when citizens can vote leaders out of office. In addition, we suggest that these constraints can function as substitutes; we anticipate the reductive effect of judicial independence wanes as the level of electoral democracy rises, making courts vital to protecting journalists in less democratic systems. We evaluate these expectations using panel data on executive branch attacks on the press in 175 countries, from 1949 to 2016, and find strong support.

From activism to resilience: the Turkish constitutional court in comparative perspective

ABSTRACT This article discusses the behavior of the Constitutional Court in Turkey. As the highest court in the country, it is responsible for many decisions that have shaped the course of Turkish politics over the past six decades. It begins with a brief overview of the institutional features of the Turkish Constitutional Court. It then looks at major arguments on constitutional review, including judicial independence and court-curbing. Finally, it examines change and continuity in the attitudes of the Court based on the speeches of its presidents. One conclusion is that the Constitutional Court has transformed itself from that of the defender of the state principles to that of the defender of human rights while retaining its role with regard to the separation of powers. This transformation has been driven by both internal and external pressures: the domestic transition of tutelary democracy to competitive authoritarianism and the equivocation of domestic laws with international treaties.

The varying effect of court-curbing: evidence from Hungary and Poland

ABSTRACT With the rise of populism, we frequently witness how elected governments try to limit judicial power by using different means. Comparing the court-curbing policies used by the Fidesz government in Hungary and the PiS government in Poland, this study has two objectives. First, it aims to explain whether different court-curbing policies effect judicial independence differently. Using synthetic control method, I find that the predominant use of informal court-curbing policies erodes judicial independence much more extensively compared to the predominant use of formal court-curbing policies. The second objective is to provide and empirically test the causal explanation for this effect. I argue that when the incumbent tries to weaken the judiciary mostly through informal court-curbing, this might instigate public discontent and jeopardize the judiciary's legitimacy in the short run. However, when the government tries to restructure the judiciary via constitutional reforms, the legitimacy of the ‘new’ judicial system might not be questioned by the public. Supporting these hypotheses, the empirical results show that while the court-curbing attempts of the PiS government reduced public confidence in the judiciary by almost 15 percent, we do not see a significant decline in the Hungarian case where mostly formal court-curbing was used.

The Supreme Council of Justice as a body for strengthening the independence of the judicial branch of government

The scientific article examines and analyzes the High Council of Justice as a body for strengthening judicial independence, certain fundamental international legal standards of judicial independence are defined.
 It was determined that the legal mechanisms for the proper guarantee of judicial independence in foreign countries from the point of view of the organizational (institutional) context provide for the existence of such bodies of judicial governance, which would be empowered to form the judicial corps, dismiss judges, transfer, resolve issues of financial and material support .
 It has been established that the independence of judges has not only an external component, as it may seem at first glance. The internal organization of the judicial system, the activities of judicial governance bodies, components of selection and professional development are also vectors of this term-concept.
 It is emphasized that the Supreme Council of Justice was the primary model of the body of judicial governance in Ukraine. However, due to its limited legally defined functional purpose, as well as excessive politicization, the said body was unable to fulfill the mission assigned to it - ensuring the independence of the judicial branch of power. As a result of the judicial reform of 2016, the Supreme Council of Justice underwent thorough reformation and was modified into the Supreme Council of Justice.
 It is determined that the Supreme Council of Justice is a special body of state power, which, among other things, is called to: ensure the independence of the judicial corps; to make submissions regarding the appointment of representatives of the judicial branch of power, professionals in their field, who would possess appropriate professional competence and high moral and ethical values, including integrity; makes decisions on the suspension, dismissal, transfer, termination of resignation of judges, violation of incompatibility requirements by judges and prosecutors; regarding the disciplinary responsibility of judges - creates relevant bodies for consideration of such issues, considers complaints against their decisions, etc.
 Arguably, the Supreme Council of Justice as a body of state power and judicial governance, according to the research of domestic and foreign scientists, meets international standards of judicial governance, is a full-fledged analogue of bodies of judicial governance in foreign countries. This position is confirmed by the fact that the tasks, functions and limits of authority, as well as the peculiarities of the formation of the Supreme Council of Justice in Ukraine are mostly identical to those in the leading states of the world.