Judicial Independence Research Articles

Legal and Judicial System Transformation in Transition Economy: The Macedonian Case

Economic growth and poverty reduction are highly dependent on the well-functioning legal and judicial institutions. Experience in transition countries suggests that the legal transition and economic performance go hand in hand in advancing results. The transition from socialism to capitalism in the Republic of North Macedonia has required fundamental reforms of legal and judicial institutions. The paper analyses the experience of the country in the legal and judicial institutions transformation, a long-term process that still has active and ongoing reforms. Despite the adoption of the structural preconditions for judicial independence (legal framework, judicial councils, and academies), political intervention, corruption and influence in judicial decisions are common and legal uncertainty remains. The authors explore the effects that the legal and judicial institutions’ transformation has on Macedonian economic development by drawing data from official sources/reports. The conclusions suggest that creating a well-defined judiciary system with enforcement ability should be a priority for the executive branch of the Macedonian government to achieve improved economic performance and functional market economy.

A. Court of Justice The conflict over the Polish disciplinary regime for judges – an acid test for judicial independence, Union values and the primacy of EU law: Commission v. Poland

A. Court of Justice The conflict over the Polish disciplinary regime for judges – an acid test for judicial independence, Union values and the primacy of EU law: Commission v. Poland

Lessons from Ireland's 2020 judicial conduct controversy

The difficulties in balancing judicial independence and accountability, the importance of formal processes around the investigation of judicial conduct, and the need for clarity on the respective roles of the branches of government under the separation of powers were all issues that were highlighted by the recent controversy surrounding the conduct of a Supreme Court Judge in Ireland. This article considers the detail of the controversy, in the context of the Irish system governing judicial discipline and removal, analyses certain problems underlined by the episode, and finally reflects on lessons that may be helpful for any jurisdiction grappling with the complex issues involving judicial discipline and removal.

Judicial Independence in Pakistan

Independent judiciary is the justification of a balanced and disinterested and judiciously equitable civilization. Independence suggests that professionals in law can unobstructed deliver legal judgments whether involving powerful diplomats, executive characters, or average residents. Therefore, guaranteeing resolutions are built on vitality slightly than is the outcome of governmental tensions or is promoting some bulk. Founded with freedom, the judiciary system works as a defense of public equities and independence. In Pakistan, however, the Constitution designates an individualistic and non-interrupted judiciary but political authorities, from multiple years, have been doubled upon guaranteeing that the lawmakers or law implementers/ judges constantly survive in an environment of anxiety and address partial and advantageous determinations under the leadership and intentional power of the outside officials. This paper settles that an unconventional or independent judicial system may not denote the clarification to all the dilemmas of Pakistan but is the numerous significant paces towards resolving the obstacles covered by the country machinations. These hurdles have great impact on country’s overall judicial performance which turns it not a democratic state and throw critical observation over dependent proclaims of judicial system, where jury could not perform and execute rule of law individually. Furthermore, the historical events from 1947 to 1956 stand the revolution in constitutional corner of the state but unfortunately severe contamination in legislative system and interpretation of external bodies in organizational independency of law, upgraded nepotism and corruptions like threats in current infrastructure of administration.

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.

Making Do With What We Have: On the Interpretation and Enforcement of the EU’s Founding Values

AbstractArticle 2 of the Treaty on European Union (TEU) solemnly proclaims that the EU is founded on the respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. Yet, a growing body of case law concerning rule of law backsliding continuously reminds us of the lack of a dedicated functional mechanism to remedy this. We are left with a fragmented understanding of the founding values and a patchy framework for their enforcement: whilst there is increasing guidance on judicial independence and the rule of law, no founding value has been defined comprehensively. The legal classification of the founding values is equally unclear, as is their position in the EU’s constitutional framework. This paper makes do with what we have, to offer systematic, normative, and substantive clarifications on Article 2 TEU. Systematically, it places the founding values in the constitutional context of the EU’s and Member States’ legal orders and discusses their autonomy, interpretation, and function. Normatively, this paper objects to the direct enforcement of the founding values by reference to their constitutional significance and over-constitutionalization. Substantively, it favors the indirect enforcement of the founding values and explores the connections between Article 2 TEU and other Treaty provisions.

Repositioning the Bar and the Bench in Quest for National Development

This paper investigates the contributions of the Bench (judges) and the Bar (Legal Practitioners) to development in Nigeria with particular emphasis on economic growth. The exploration is borne out of the mirage of challenges militating against implementation of development economic policies in the country and in particular is the incontestability of phenomenon of dispute, which inadvertently affects economic growth. In the realm of development, it is contended that the extent of judicial independence, complemented with a vibrant legal practitioner in the discharge of their respective constitutional responsibilities correlate with economic growth. In respect of the Bar, aside from representing clients in courts they contribute to economic growth and development through completing business and contractual obligations and commercial transactions, resolving disputes, facilitating the flow of funds and investments, encouraging innovation through the protection of intellectual property rights, and advising entrepreneurs on viable business solutions. Thus, a better and strong performing judiciary and lawyers without interference have shown to lead to more developed economy, associated with rapid growth of large, small, and medium businesses in the economy. While dispute is inevitable, in the sphere of economy, the right of contending parties to institute action or defend in courts as well as the right of the parties to be represented by legal practitioners makes the institution of the judiciary and the bar significant. This paper, which employs doctrinal research method, explores the constitutional mandates of the Bar and the Bench as agents of justice administration to determine the institutions contributions to development. The paper found that the Bar and the Bench have roles to play in propelling developmental economic strategies and implementations by making sure that due process and democratic norms are revered. It is concluded that for Bar and Bench to contribute to development there must be harmonious relationship between the without compromising justice.

(lack of) consequences of reasonable doubts on the independence of the judiciary system on cooperation in criminal matters in the EU

The article analyses the consequences of the violation of judicial independence in the cooperation in criminal matters. The right to an independent court is not only a fundamental value in the rule of law (Article 2 TEU, Article 19(1)), but also one of the fundamental rights (Article 47 CFR). Jeopardising the independence of the judiciary in one of the EU countries should have an impact on the possibility of cooperation in criminal matters. Leaving the standard of independence of the judiciary resulting from the ECHR jurisprudence, the article summarises the current jurisprudence of the CJEU concerning the independence of the judiciary and the impartiality of judges at two levels: general (or systemic), and in connection with the operation of the EAW. The article analyses present situation in Poland and recent judgments of the CJEU in “Polish cases” – about the problem of executing the EAW and evaluating the independence of the judiciary system in Poland.

Autocratic Legalism: the Making of Indonesian Omnibus Law

<p><em>The Indonesian House of Representatives’ approval of the Omnibus Law on Job Creation marks a significant enhancement of the business climate and a step forward for labor market flexibility, which should, over time, improve the country’s international competitiveness. But, the Constitutional Court delivered shocking news by declaring that the omnibus Job Creation Law, is partly unconstitutional on November 2021. This study aims to reveal two things. First, procedural injustice in the making of Indonesian Omnibus Law on Job Creation. Second, the root of autocratic legalism and its prevention. The study is a doctrinal legal research with qualitative analysis. It has identified that (1) five violations of procedural justice in the making of the omnibus law reflect autocratic legalism in Indonesia; and (2) three factors contribute to the phenomenon. The three contributing factors are (i) the co-optation of the ruling party in the parliament, (ii) the violations of the law and constitution, and (iii) the undermined judicial independence. Indeed, the cartelization in political parties should be ended. Therefore, citizens need to conduct strengthened collective control. In addition, the independence of the Constitutional Court should be preserved.</em></p>

The making of landmark rulings in the European Union: the case of national judicial independence

ABSTRACT We study the conditions under which the European Court of Justice (ECJ) expanded the European Union's reach into issues of national judicial independence. The ECJ's 2018 ruling in a case known as Portuguese Judges contained a far-reaching constitutional interpretation that had a transformative impact on the European Union's rule of law crisis. We conduct a theoretically guided investigation into both the domestic origins and the judicial outcome in the Portuguese Judges case. We show how the ECJ, with implicit support from the majority of the Member States, strategically exploited suitable characteristics of an inconspicuous case to produce a landmark ruling that enabled unprecedented enforcement action against democratic backsliding in Poland and Hungary.

Comparing the Perceived Legitimacy of Content Moderation Processes: Contractors, Algorithms, Expert Panels, and Digital Juries

While research continues to investigate and improve the accuracy, fairness, and normative appropriateness of content moderation processes on large social media platforms, even the best process cannot be effective if users reject its authority as illegitimate. We present a survey experiment comparing the perceived institutional legitimacy of four popular content moderation processes. We conducted a within-subjects experiment in which we showed US Facebook users moderation decisions and randomized the description of whether those decisions were made by paid contractors, algorithms, expert panels, or juries of users. Prior work suggests that juries will have the highest perceived legitimacy due to the benefits of judicial independence and democratic representation. However, expert panels had greater perceived legitimacy than algorithms or juries. Moreover, outcome alignment -agreement with the decision - played a larger role than process in determining perceived legitimacy. These results suggest benefits to incorporating expert oversight in content moderation and underscore that any process will face legitimacy challenges derived from disagreement about outcomes.

International court curbing in Geneva: Lessons from the paralysis of the WTO Appellate Body

AbstractThe 21st century has witnessed a backlash against many international courts (ICs). Studies of IC backlash have generally taken an optimistic tack, noting that most courts have survived backlash intact or—in the case of the paralyzed Appellate Body (AB) of the World Trade Organization (WTO)—are likely to do so after a temporary period of slumber. In this context, this paper analyzes the United States' successful effort to paralyze the AB, deriving lessons from this deviant case of backlash against one of the world's most active and independent ICs. Undertaken in the context of the “Reversing Delegation” research project, this account is organized in five parts. First, I demonstrate that the creation of the AB was a classic instance of delegation of dispute‐settlement power, and that the AB quickly emerged as an active agent of trade liberalization. Second, I explore the roots of politicization, noting that dissatisfaction with AB jurisprudence preceded the Trump administration, although Trump's delegitimation of the AB was more far‐reaching than that of his predecessors. Third, I examine the administration's use of the veto power to paralyze the AB, an act of de facto de‐delegation. Fourth, I assess the pushback from the many other WTO members that sought to defend the AB, showing how they failed to blunt the US campaign. Fifth, I analyze the remarkably successful outcome of the US attack, and draw lessons for judicial independence and the rule of law in international politics.

Appointment and Dis-Appointment at the CJEU: Part II – The Sharpston Litigation

Abstract This second and concluding part of a two-part article considers the annulment actions by Advocate General Sharpston of the CJEU seeking to challenge the premature termination of her term of office as a result of a decision of the Member State governments, following withdrawal of the United Kingdom from the European Union. While in its case law the Court of Justice has been in the vanguard in ensuring the protection of judicial independence in the courts of the Member States and the right of judges to a review of decisions entailing their dismissal, Ms. Sharpston’s proceedings were rejected by both the General Court and on appeal the Court of Justice essentially on grounds of lack of jurisdiction. The Courts’ reasoning is incomplete and unconvincing, and doubts remain as to whether the former Advocate General has been afforded effective judicial protection of her claimed right to finish out her term of office.

Infringement Actions 2.0: How to Protect EU Values before the Court of Justice

Infringement actions and EU values – constitutional backsliding in Hungary and Poland – the role of the Court of Justice – judicial independence and Article 19 TEU – the Charter of Fundamental Rights – the toolkit to protect EU values – political and judicial mechanisms – a bottom-up approach

The Effect of Populism on American and Turkish Judiciaries

In this article, I study the relationship of populism and judicial independence. I argue that populism poses a threat against the latter. Specifically, I use Turkey and the United States as illustrative case studies. First, I explain what an independent judiciary looks like, and proceed to explain the importance of a judiciary in a democracy, defined as a mixed regime. Furthermore, I discuss the threats facing judiciaries in the face of rising populist movements in Turkey and the United States. In Turkey, judges seen as disloyal to President Erdogan are replaced with judges that will rule in favor of the administration. In the United States, up to 90% of judges are elected, which is problematic for reasons related to the election mechanism’s relationship with democracy. Furthermore, there is a history of pressuring the judicial branch to conform to the wishes of the executive branch in America, which will also be examined. Finally, I will relate these pressure tactics to the idea of judicial populism. This notion, which states that courts may alter their opinions to appease a populist executive, has had wide-ranging policy implications. I will examine some of these in the paper.

How to capture the judiciary under the guise of EU-led reforms: domestic strategies of resistance and erosion of rule of law in Turkey

ABSTRACT The recent backsliding in judicial independence and erosion of rule of law in Turkey follow the findings of the existing literature which already informed us about the pathological effects and unintended consequences of the external promotion of the EU conditions. Yet, we know little about the domestic strategies of the governments that enable them to capture the judiciary under the guise of EU-led reforms. This article argues that the frequent and ad hoc institutional changes demanded and funded by the EU and readily adopted by the political elites open a window of opportunity for the consolidation of patronage networks within the judiciary system. This is achieved by the adoption of formal and informal domestic strategies of resistance – formal readoption, staff politicization and intimidation & bribery – remaking, distorting, and when necessary, reversing EU-led reforms in a way that enables governments to take control of the high judicial bodies and capture them from within.

India’s Farmers’ Protest: An Inclusive Vision of Indian Democracy

India, the world’s largest democracy, has been experiencing a democratic decline. Since coming to power in 2014 and winning reelection in 2019, Prime Minister Narendra Modi and the Bharatiya Janata Party have become increasingly illiberal and authoritarian. The rule of law has deteriorated, rights and liberties have been curtailed, and scholars and the media have been silenced. If electoral constraint, constitutional design, judicial independence, and a free press haven’t slowed India’s march toward illiberalism, what can? In November 2020, India’s farmers began a highly organized protest against the government. In this research note, I ask, how has this protest protected Indian democracy from further degradation, and has it radically altered India’s political future? I argue that the farmers’ protest provides an alternative vision of democracy, one rooted in radical egalitarianism. Protesting farmers have actualized the spirit of dissent enshrined in the Indian constitution by holding the current government accountable to it.

Can Courts in Nondemocracies Deter Election Fraud? De Jure Judicial Independence, Political Competition, and Election Integrity

Many nondemocracies hold multiparty elections while also adopting institutions of de jure judicial independence; yet there is debate over how nondemocratic courts can affect election integrity. This paper argues that increased de jure independence creates incentives for opposition recourse to the courts, which reduces election fraud due to greater legal exposure for election-manipulating agents and the ruling party. However, this effect occurs only when competition is low and the ruling party has limited incentive to intervene. These predictions are distinct from those of prior work, and they are supported by an analysis of cross-national election-year data from 1945 to 2014. Preprocessing techniques are used to reduce concerns about endogeneity and confounding. The results show that principal-agent dynamics can occur in manipulated elections even when incumbents remain in office, challenge the centrality of protest risk as a deterrent to manipulation, and offer a framework for predicting when de jure reforms translate to behavioral independence.

Fighting economic crime during the pandemic: a Sri Lankan perspective

PurposeThe purpose of this paper is to understand the dual crisis in Sri Lanka during the pandemic. The health crisis was followed by democratic backsliding which directly impacted the fight for economic crime. The pre-pandemic political commitment to fight corruption is assessed with the pandemic environment and the policy decisions by the Government. Sri Lanka was a detailed case study of how politicians exploited the pandemic environment to suppress democracy and move their semi-autocratic agenda forward. However, Sri Lanka was not the only nation that faced such autocratic sentiments losing the democratic values. This paper discusses recommendations for improving the resources and investment to address economic crime in Sri Lanka.Design/methodology/approachSecondary data was used for the analysis introducing a theoretical framework referring to the work of Michel Foucault and Francis Fukuyama. The secondary data was used to develop an argument aligning political science with economic crime.FindingsThe Government disciplinary project launched during the pandemic directly impacted Sri Lankan democracy and structural changes made to the constitution. The heavy militarization was a sign of departure of long-cherished values of democracy in the country. Political clientelism backed by nepotism interfered with judicial independence and the fight against economic crime. Many accused, including those responsible for the largest corruption scandal, were not punished. The trust deficit has widened significantly between authorities and the public on fighting corruption in Sri Lanka.Research limitations/implicationsThere are more factors for democratic backsliding than what is presented in this paper. The economic crime environment in Sri Lanka has many dimensions and the paper only highlights a few areas limiting to the secondary data available.Originality/valueThe paper discusses a unique perspective on how a pandemic could be misused to strengthen the autocratic rule and make structural changes to a nation, including constitution amendments. The pandemic environment was used to commit economic crime and suppress public opinion projecting the health crisis in the lockdown environment.

Judicial independence and refugee flights

Recent studies suggest that a lack of judicial independence increases the risk of violent action, diminishing the incentives to solve disputes peacefully. However, violent action is not the only option when judiciaries are under the control of the executive. I argue that individuals become refugees in countries with non-independent judiciaries, losing their hope that violations of rules by the executive or privileged groups will be tried fairly. Using data from 181 countries over the 1976–2015 period, I find evidence that the lack of judicial independence leads countries to produce more refugees than others.