Judicial Independence Research Articles

The Judiciary of China: Understanding its Independence, Glitches and Reforms Measures

The judiciary of china and its degree of independence is the vital theme of intellectual discourse not only among the western jurists but also among Chinese intellect as the judiciary of China is randomly criticized by the westerns for not upholding the actual independence. In fact, the Chinese authority never explores concentration to admit and implement the western concept of the independent judiciary rather they have attempted to build a strong and independent adjudication system with unique Chinese characteristics. Hence, the Chinese Communist Party (CCP) has declared and implemented various reforms initiative and plays a momentous role to execute all reforms plan properly. This paper, largely, endeavors to address the understanding of judicial independence in China, ascertaining its glitches and deficiencies with the scheme of various rounds of reform policy as an extent of strengthening the impartial and independent adjudication system. The study finds that the competent authority devotes vast judicial reform agenda to improving the court management, appointing qualified judges through the comprehensive selection process, to eliminate internal interference from courts seniors and political leaders.
 
 Received: 26 June 2022 / Accepted: 28 August 2022 / Published: 2 September 2022

Conceptual approaches to the application of principle of proportionality

Upon the Article 8 of the Constitution of Ukraine the principle of the rule of law is recognized and eff ective in Ukraine. It is generally accepted that the principle of proportionality is a key component (sub-principle) of the rule of law along with the principle of legal certainty, principle of separation of powers, equality before the law, judicial independence. The principle of proportionality is considered to be one of the most transparent and eff ective mechanisms for the protection of human rights nowadays. Even though the principle of proportionality is a well-known principle both for the national and foreign jurisprudence, only a few foreign articles are devoted to the conceptions of application of the principle of proportionality while such studies are absent in Ukraine at all. Therefore, in our opinion, there is a need to analyze modern conceptions of application of principle of proportionality in order to start the scientific discussion in Ukraine because approaches to its application aff ect the results of the application of the latter. There are two conceptions of principle of proportionality application: optimizing conception and state-limiting conception. These two conceptions can be distinguished from one another by the extent of juridical activism and extent of right protection based on its content. Proceeding from examination of two main conceptions of principle of proportionality application: optimizing and state-limiting conceptions, the following features of these conceptions can be highlighted. As for the optimizing conception, assimilation (equating) of right and public interest, balancing between the right and public interest, equal protection of both rights and public interest, the rule of law shall be achieved through the balancing, not through the limiting the state. On the other hand, when it comes to the state-limiting conception – there is a clear distinction between the rights and public interest, absolute primacy of rights over any public interest, wide discretion of the judiciary, the rule of law shall be achieved through the protection of human rights. Key words: Rule of law, principle of proportionality, conceptions, limitation of government, human rights.

Kirchberg Salami Lost in Bosphorus: The Multiplication of Judicial Independence Standards and the Future of the Rule of Law in Europe

Kirchberg Salami Lost in Bosphorus: The Multiplication of Judicial Independence Standards and the Future of the Rule of Law in Europe

Impeachment of judges: a brief historical and comparative analysis between Brazil and the United States of America

This article aims to uncover some less known uses of the impeachment mechanism in Brazil and in the United States of America: judicial impeachment. On the one hand, it aims at discussing how impeachment relates to the removal of judges from public office in these two countries, namely when it comes to judges in the highest courts of the judicial branch (Supreme or Constitutional Court); on the other hand, the purpose is to discuss the connections between impeachment, judicial independence and accountability. The idea is to use comparative constitutional law methodology to address the historical background of impeachment and how it spread throughout different jurisdictions along the way before arriving in the Brazilian legal and constitutional scenario. In light of that, one of the most relevant sources will be found in precedents and legal doctrine regarding impeachment, with a significant focus on historical registers of its use and relation to judicial independence. The final objective is to test and investigate whether judicial impeachment can be seen or not as a mechanism that enhances judicial independence in countries that still adopt the practice, such as Brazil and the United States of America.

Tactics of resistance and post-conflict judicial independence

Scholars have found that nonviolent resistance is more effective than violence at promoting post-campaign democratization. We explore whether this relationship extends to judicial systems, specifically. Courts have been shown to be important for promoting and protecting economic development and political rights, yet they have been largely ignored in quantitative studies of post-conflict democratization. We posit that leaders who hold power after domestic unrest will be more inclined to use independent courts as a mechanism to prevent future campaigns–but they do so primarily when fearing a significant mobilization threat and when expecting legal action to be an acceptable channel for dispute resolution by dissidents. As such, we anticipate that levels of judicial independence are higher following nonviolent campaigns as compared to violent conflicts. Using quantitative data from violent and nonviolent campaigns globally, we find that judicial independence is indeed higher in the aftermath of nonviolent, as compared to violent, resistance campaigns. Furthermore, a campaign’s outcome does not matter; post-conflict judicial independence appears to be associated with tactics, not dissident success.

‘Democracy without Politics’ in the European Commission's Response to Democratic Backsliding: From Technocratic Legalism to Democratic Pluralism

AbstractThe debate on EU responses to democratic backsliding in EU member states has mostly been anchored on technocratic appeals to the rule of law and judicial independence, and on Poland and Hungary. In this article, we ask: What understandings of democracy have shaped the European Commission's response to democratic backsliding in recent years? After developing an understanding of pluralist democracy, we uncover the way in which the European Commission conceives of democracy through a discourse analysis of European Commissioners' speeches (2018–21) and a normative‐theoretical analysis. We identify the Commission's conception as a form of ‘democracy without politics’, and argue that it matches the EU's policy choices in regard to democratic backsliding. We argue that a fuller, healthier and normatively more attractive conception of democracy encompasses more attention to political pluralism, agonistic contestation and the vibrancy of civil society.

Historical and legal preconditions for the introduction of the constitutional and legal institution of the High Council of Justice in Ukraine

The scientific article considers and analyzes the evolutionary path of development of the Ukrainian judicial system from the beginning of the declaration of independence until today in terms of the functioning of judicial government.
 It is established that the Constitution of Ukraine of 1996 declared the establishment of the High Council of Justice, the functional purpose of which included, among other things, the authority to apply for the appointment and dismissal of judges. Subsequently, the Law of Ukraine “On the High Council of Justice” of 1998 provided for the procedure for the formation and organization of the work of the High Council of Justice, especially the exercise of its competence.
 Certainly, the functioning of the High Council of Justice at the time of its establishment was considered a positive step towards strengthening judicial independence. At the same time, there were undoubtedly certain points, for example, in determining the place of this institution in the system of public authorities. Another problem was that the body under study was not defined at the legislative level as, in fact, a public authority.
 It is established that it is necessary to distinguish between the concepts of “administration of justice” and “administration of justice”. The latter legal category we have mentioned is a much broader phenomenon, because, in our opinion, not every legal proceeding is, in fact, justice. This position can be traced in the works of most modern researchers who deal with the issue of the exercise of judicial power by its functional purpose and state powers.
 It has been established that adaptability and innovation are the tools that should be useful for the activities of the High Council of Justice, as they will allow to respond quickly to changes in any sphere of state and public life and work efficiently and effectively. The development of distance communication skills in this regard is a priority. Innovation, education, institutional communication, mobility and human resource management should contribute to improving the work of the High Council of Justice and establishing a constitutional guarantor of the independence of the judiciary.

The Nigerian State and Democratic Governance: A Need for Revisitation of Democratic Ethos

The study examined the practice of democracy in Nigeria, bearing in mind the tenets of democracy. Democracy has been accepted as the most viable and sustainable form of government by world leaders and is used to determine the extent of freedom enjoyed in different countries of the world. However, the availability of the freedom it offers in Nigeria is questionable. This is largely due to the lack of democratic principles such as free, fair and credible elections, mass participation in the governance processes, independence of the judiciary, rule of law, etc. While successive governments since 1999 have verbalized efforts at strengthening democratic ethos/culture in the country, observers are of the view that the democratic practice in Nigeria is a far cry from the acceptable norms. Therefore, the main objective of this study is to examine the extent to which democratic ethos have been institutionalized in the Nigerian State. The study adopted the Participatory Theory of democracy, its main idea being the provision of greater involvement and control over all governmental laws and non-governmental rules pertaining to the citizens, and to analyze the imperative to revisit the practice of democracy in Nigeria. The study relied mainly on secondary data focusing on the nature and character of democratic governance in the country. The study revealed that efforts at institutionalizing democracy, enhancing mass participation as well as achieving development had not yielded the desired outcomes in the country. This is evident in the increasing rate of electoral violence that characterizes elections over the years in the country. The paper concluded that, for Nigeria to substantially deliver the “dividends of democracy” to the people, the state must revisit the culture and practice of democracy in the country. The study recommended, among other things, that the state should strive to uphold the rule of law at all times, ensure judicial independence, enhance mass participation in the governance processes and efforts should also be made to guarantee free, fair and credible elections.

Features of the formation and implementation of the powers of the High Council of Magistracy: the experience of France

The article is devoted to the study of the peculiarities of the formation, structure and procedure for exercising the powers of the High Council of Magistracy in France. It is determined that the French Revolution and the new institutional organization that emerged as a result gave the judiciary a somewhat less important role in the legal life of the state. Historically, guarantees of judicial independence in France have always been limited by the executive.
 It is established that in France in 1883 the High Council of Magistracy appeared, which was later determined by an autonomous governing body in accordance with the provisions of the 1946 Constitution. Since then, the Council has undergone several reforms, including changes to the 1958 Constitution, and in 1993, in addition to changing the number of members, the powers of the constitutional body were modernized. It is determined that the French High Council of Magistracy is bicameral, consisting of two panels, one of which exercises powers over judges and the other over prosecutors.
 Certainly, in the field of recruitment and training of judges, France has developed a model that is followed by most European countries. In most of the countries that we position in the modern legal dimension as continental Europe, the approach is used in the form of public competition and test tasks. This process is seen as a way to ensure the selection of the most qualified candidates, and also helps to ensure the independence of future magistrates.
 It was found that the members of the High Council of Magistracy in France carry out their mission in compliance with the requirements of independence, impartiality, honesty and dignity and ensure the prevention or immediate cessation of conflicts of interest. Conflict of interest is any situation of conflict between public interests, or public and private interests, which may affect the independent, impartial and objective performance of functions.
 It is established that the French High Council of Magistracy is directly related to the executive branch, as the head of the state is also the head of the Council and authorized to participate in personnel matters concerning this body.

The effect of the strength of auditing and reporting standards on infrastructure quality in Africa: do ethical behaviour of firms and judicial independence matter?

PurposeThis paper aims to investigate the impact of the strength of auditing and reporting standards (SARS, hereafter) on the quality of infrastructure in African countries and tests whether the ethical behaviour of firms and judicial independence affect this relationship.Design/methodology/approachThe sample consists of 108 country-year observations spanning from of 2014–2017. Data concerning the main variables in this study (the quality of infrastructure, SARS, ethical behaviour of firms and judicial independence) are gathered from the Global Competitiveness Reports for 2014, 2015, 2016 and 2017.FindingsThe findings of this study suggest that the SARS is positively related to the quality of infrastructure. Similarly, the ethical behaviour of firms has a positive and significant effect on the same variable. When testing for the moderating effects of ethical behaviour of firms and judicial independence, the association between SARS and the quality of infrastructure remains positive and significant for high ethical behaviour and high judicial independence sub-samples, while it is insignificant for settings characterised by low ethical behaviour of firms or low judicial independence.Originality/valueThe results of this study highlight the importance of the SARS in combination with business ethics and judicial independence in improving the quality of infrastructure in African countries. These results may have policy implications for African governments aiming to improve the quality of their infrastructures by strengthening auditing and reporting standards, enforcing laws obliging firms to act ethically and giving importance to the role played by judicial independence in imposing strict sanctions on all violations that can affect the quality of infrastructure in one country.

THE APPOINTMENT OF ACTING JUDGES IN SOUTH AFRICA AND LESOTHO

The appointment of acting judges is a common practice in many Commonwealth countries, including South Africa and Lesotho. The practice has been criticised as infringing judicial independence. This article explores this criticism with reference to the recent decision of the Lesotho Court of Appeal in Sole v Cullinan, and the Report of the United Nations Special Rapporteur for the Independence of Judges and Lawyers’ fact-finding mission to South Africa in 2000.

Authoritarian Institutions and Democratic Lessons

Does the experiential legacy of participating in autocratic legislatures influence how autocratic-era opposition parties and politicians want to use legislatures in a subsequent democracy? Do they learn to use legislatures to strengthen or undermine democracy? Given the frequency of institutionalized autocracies, of opposition party led post-transition governments, and importance of legislatures in democracies these are important questions. This paper addresses them by first drawing on research on authoritarian legacies, and on organizational and individual learning to identify three potential institutional lessons opposition parties and politicians could learn from their autocratic legislative experience about how to use legislatures in a subsequent democracy. It then uses data from a survey of almost 200 Egyptian politicians conducted during the 2011 elections to test which lessons parties and politicians learned by focusing on their support for protecting judicial independence from legislative interference in the future democratic regime. We find that (i) experienced opposition parties learn a democracy-strengthening institutional lesson, (ii) experienced opposition politicians learn a democracy-weakening institutional lesson, and (iii) membership in an experienced opposition party curbed the undemocratic institutional preferences of experienced politicians. Thus, authoritarian institutions leave diverse legacies among ruling and opposition parties and politicians with very different consequences for subsequent democracy.

Magistrates marching in the streets: making and debating judicial independence and the rule of law in Benin

AbstractSince 2012, judges and prosecutors in Benin have repeatedly protested against political interference and demanded compliance with their statutorily guaranteed independence. In 2014 and 2017, magistrates demonstrated in their judicial robes in the streets, protesting against the government's bill to deprive them of their right to strike and other freedoms. Benin has been described as a ‘success story of democracy’ (Stroh and Never, 2006, p. 1) and even as a ‘model democracy’ (cf. Kohnert, 1996, p. 78; Magnusson, 2001, p. 211; Bierschenk, 2009) since its peaceful transition to democratic conditions and its participation in a national conference in 1990/91. So why were magistrates in Benin demonstrating in the streets for the first time in the history of their profession? Based on fieldwork in Benin in 2009 and 2015 and archival research in 2017 in France, my paper analyses the change in the style of interactions between parts of the executive and parts of the judiciary in the history of the profession – a change from political negotiation to confrontation. Through their strikes and industrial action, magistrates fought for judicial independence; yet, at the same time they constructed legality and strengthened democracy because their actions emphasised the rule of law. My paper also considers the specifics of their strikes in the context of other striking civil servants. When magistrates, as bureaucrats, become politically active, it marks a transformation in their self-conception, as they are usually reserved and withdraw themselves from political and public spheres.

Can the use of algorithms enhance judicial independence? Reflections in the context of The Hague Declaration

Can the use of algorithms enhance judicial independence? Reflections in the context of The Hague Declaration

16th Amendment Controversy between Legislature and Judiciary: An Analysis

The constitution is the guide that leads a nation to prosperity. We cannot think of a modern state without it. So, after nine months of long blood-shedding battle in 1971, Bangladesh achieved her long-awaited independence and, therefore, made an instant effort to formulate a constitution rapidly, based on the ideological spirit of the war of independence. However, to accommodate the demands and will of the people and even sometimes to fulfill the narrow interests of the rulers, Bangladesh Constitution has been amended several times. Except for a few cases, almost every amendment; has a tremendous political impact on the constitution. Bangladesh's Constitution was recently revised to include a parliamentary procedure for judicial discipline for high court judges. The previous one supported judicial independence and separation of powers. The current system compromises judicial independence with accountability. As a result, the judiciary seems to fail to maintain its dignity and discharge its sacred responsibility.

Wielding the Gavel or Balancing the Scales? Domestic Legal Systems and Post-Conflict Justice

This study analyzes the institutional variation across domestic legal systems, with a focus on common law system’s adherence to precedent and reduced recourse to judicial deference, as well as on the degree of independence afforded to courts. These institutional qualities of judiciaries provide the opportunity for courts to play a more active role in the implementation of post-conflict justice, increasing uncertainty for other policymakers concerning the ultimate contours of post-conflict justice processes. To reduce such uncertainty, policymakers ensconced in these types of institutional contexts will be less likely to implement post-conflict justice. Using data from the Post-Conflict Justice dataset, we find that states with common law systems are less likely to pursue and implement post-conflict justice compared to states with civil or Islamic law systems. Moreover, independent courts will be less likely to pursue mixed or restorative forms post-conflict justice, though the impact of judicial independence is weak overall.

Guardians of the Constitution: Upholding Judicial Independence During Samoa’s Constitutional Crisis

ABSTRACT Samoa’s 2021 constitutional crisis saw unprecedented attacks on the nation’s judiciary and the rule of law. The Human Rights Protection Party (HRPP) refused to concede defeat after a tightly contested general election on 9 April 2021. The transfer of power to the incoming Faʻatuatua i le Atua Samoa ua Tasi (FAST) government was stymied by determined efforts such as the attempted exploitation of the women’s parliamentary quota, attempts to justify the calling of fresh elections and the locking of the parliamentary chamber to prevent parliament’s first meeting. This article examines how the constitutionality and lawfulness of these actions was repeatedly challenged in Samoa’s courts in a highly charged political atmosphere that persistently ignored court rulings. It outlines how Samoa’s judiciary came under serious and repeated threat by constitutional actors, in particular the head of state, the outgoing government, and the attorney general. The article finds that despite these critical challenges, the rulings of the courts ultimately resolved the four-month impasse through decisions on an unprecedented number of complex and novel constitutional issues. The courts’ role in the crisis demonstrates the importance of a sound and independent judiciary to uphold the rule of law, particularly in small island states when the foundations and functioning of a modern constitutional democracy are attacked.

Selection and Appointment in International Adjudication: Insights from Political Science

Abstract This article summarizes insights from political science and empirical legal scholarship concerning selection and appointment of adjudicators to permanent international courts (ICs). This scholarship suggests that designers of ICs face challenging trade-offs in balancing judicial independence and accountability, as well as in promoting descriptive representation and necessary qualifications on the bench. The article considers different institutional design features related to appointment procedures: representation, reappointment, screening procedures and procedures for removing judges. Representation is discussed in a series of sections considering full or selective representation, voting rules and geographic and gender quotas and aspirational targets. Throughout, we draw on data on 24 ICs to illustrate the different appointment procedures and institutional features.

Vietnam Marine Life Disaster: A Test Case of a Home State’s Jurisdiction in Taiwan

Victims of transnational human rights violations caused by multinational corporations (MNCs) are often confronted with substantial impediments to effective remedies. While justice is de facto unattainable in host state courts, due to weak government or the absence of judicial independence, barriers that prevent victims from litigating in home states are no less insurmountable. Transnational litigation in home states has faced jurisdictional challenges. Defendant corporations have argued that home state courts are not the most appropriate forum to hear a case involving foreign torts.1

Kadencyjność Rzecznika Praw Obywatelskich i zasada zaufania do państwa i stanowionego przez nie prawa. Glosa do wyroku TK z 15 kwietnia 2021 r., K 20/20

The term of the Ombudsman and the constitutional principle of trust for the state and the law. Commentary on Constitutional Tribunal Judgement of 15 April 2021, case K 20/20 The commentary presented in the paper is doctrinal and has descriptive and interpretive aims. It discusses the Tribunal’s judgement concerning the unconstitutionality of one of the provisions of the Act on the Ombudsman. According to the provision, the Ombudsman shall continue to perform duties after the end of term and until the election of the new Ombudsman. In the Tribunal’s view, the provision provided an unconstitutional extension of the Ombudsman’s term. Since the judgement was passed by the unconstitutionally elected members of the Tribunal and it was to remove Adam Bodnar (the former Ombudsman) from the office, it has to be interpreted in the context of the current constitutional crisis in Poland. The article argues that the Tribunal’s reasoning was constitutionally wrong, logically incoherent, and far from clear if considering the well-established case-law. Moreover, the paper explains how the Tribunal and the President of the Tribunal violated the law on the assignment of judges to the Tribunal’s panels and the constitutional principle of judicial independence. The concluding remarks focus on the possible legal consequences of unlawfulness in the Polish constitutional order, which does not directly provide any review of the Tribunal’s judgements or its President’s actions.